Frusher v. Astrue

Filing 21

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATIONS for 16 Report and Recommendations, granting 12 Motion to Affirm the Decision of the Commissioner filed by Michael J. Astrue and denying 9 Motion to Reverse Decision of the Commissioner filed by Cecelia Frusher - So Ordered by Chief Judge Mary M Lisi on 12/4/09. (Barletta, Barbara)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND CECELIA FRUSHER on b e h a l f o f RICHARD FRUSHER (deceased), Plaintiff,

v.
MICHAEL J. ASTRUE , COMMISSIONER OF SOCIAL SECURITY, Defendant.

C.A. No. 08-271-ML

MEMORANDUM AND ORDER
This matter is before the Court on the request o f Cecelia Frusher ( " P l a i n t i f f ' ) , on behalf o f her husband Richard Frusher ("Claimant"), now deceased, for judicial review o f the Commissioner o f Social Security's (the "Commissioner") decision. Magistrate Judge Martin issued the Report and Recommendation on September 25, 2009, concluding that the Commissioner's decision is supported by substantial evidence in the record. Having reviewed the Report and Recommendation and P l a i n t i f f s objections, the Court finds that the Magistrate J u d g e ' s detailed factual findings and legal conclusions are fully supported by the record and relevant legal precedent. The Court further finds no merit in P l a i n t i f f s objections . Accordingly, the Court adopts the Report and Recommendation in its entirety. P l a i n t i f f s Motion to Reverse is DENIED and Defendant's Motion for an Order Affirming the Decision o f the Commissioner is GRANTED .

I. JURISDICTION
As a general rule, administrative actions, including the denial o f a request to reopen an application for disability benefits, are not ordinarily reviewable in federal court. 20 C.F.R.

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404.903; Califano v. Sanders, 430 U.S. 99 , 107-09 (I 977). An e x c e p t i o n exists, however, where the claimant presents a colorable constitutional claim. Mehilli v. Gonzales, 433 F.3d 86, 93 ( I s t Cir. 2005). "To be colorable ... the alleged violation need not be substantial , b u t the claim must have some possible validity." Mehilli, 433 F.3d at 93-94 (quoting Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir. 2001)). As the Magistrate Judge correctly observed , Defendant concedes that "there is enough evidence to establish a colorable constitutional claim." Def. Mem. at 6. Accordingly, this Court concludes that it has j u r i s d i c t i o n o v e r the case.

II. STANDARD OF REVIEW
Under Fed. R. Civ. P. 72(b)(3), the Court m u s t "determine de n o v o any p a r t o f the magistrate judge's disposition that has b e e n properly objected t o , " The C o u r t may "accept, reject, or modify the r e c o m m e n d e d disposition; receive further evidence; or return the matter to the magistrate j u d g e with instructions ." Fed. R . Civ. P. 72(b)(3). A P l a i n t i f f m u s t identify specific factual findings or r e c o m m e n d a t i o n s to w h i c h objections are being made. Velez-Padro v. Thermo King de P.R., Inc., 465 F . 3 d 3 1 , 3 2 (1st Cir. 2006). "Conclusory objections t h a t do not direct the reviewing c o u r t to the issues in controversy do not comply with Rule 72(b)." Id. Where the magistrate j u d g e ' s disposition is properly objected to, the proper standard o f review is de novo, but where the P l a i n t i f f either fails to object or provides an insufficient conclusory objection, this Court n e e d only r e v i e w the Report and Recommendation for clear error. Espada-Santiago v. Hosp. Episcopal S a n Lucas, Civil No. 072221 , 2 0 0 9 U.S. Dist. LEXIS 19840 , *3-4 (D.P.R. Mar. 11, 2 0 0 9 ) . Here, P l a i n t i f f has lodged substantive objections to Magistrate Judge M a r t i n ' s Report and Recommendation. This Court, therefore, conducts a d e novo review o f each objection.

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III. ANALYSIS
The Court reviews each objection under the substantial evidence standard. Gonzalez Ruiz v. C o m m ' r o f Soc. Sec., 286 F. Supp. 2d 121, 123 (D.P.R. 2003). Under this standard, the Court's review is limited. Brown v. Apfel, 71 F. Supp. 2d 2 8 , 3 0 (D.R.I. 1999). While questions o f law are reviewed de novo, findings o f fact that are supported by substantial evidence in the administrative record shall be conclusive. Id. (citing 42 U.S.C. § 405(g)(l994)). The Court must "keep in mind that 'issues o f credibility and the drawing o f permissible inference from evidentiary facts are the prime responsibility o f the Secretary.'" Rodriguez v. S e c ' y o f H H S ,

647 F. 2d 2 1 8 , 2 2 2 ( l s t Cir. 1981) (quoting Rodriguez v. Celebrezze, 349 F. 2d 494, 496 ( l s t Cir. 1965)). Essentially, Plaintiff lodges three discrete objections to the Report and Recommendation, only one o f which requires discussion by this Court. Plaintiff argues that the Magistrate Judge erred in finding (1) that Claimant did not meet the requirements o f the " g o o d cause" exception; (2) that no Procedural Due Process violation occurred because Claimant did not lack mental capacity to understand specific notices; and (3) that no Procedural Due Process violation occurred due to a deficient notice because Plaintiff failed to show that Claimant detrimentally relied on such notice in deciding whether to seek administrative review. P l a i n t i f f s Mem. at 2. With regard to P l a i n t i f f s first two objections, the Court finds the Magistrate J u d g e ' s factual findings fully supported by the record and his legal conclusions in keeping with relevant circuit precedent. P l a i n t i f f s third objection merits some discussion. Essentially, P l a i n t i f f argues that Claimant had a right to "receive adequate notice about the consequences o f not pursuing his

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administrative remedies." P l a i n t i f f s Mem. at 11. She further argues that the absence o f such notice violated Claimant's right to Procedural Due Process. Id. A Procedural Due Process challenge requires a twofold analysis - "First , the court must determine whether a life , liberty, or property interest is at stake. If the answer to the first question is ' y e s , ' the court must go on to decide what process is due." Butland v . Bowen , 673 F. Supp . 638, 640 (D. Mass . 1987). The first issue, therefore, is whether Claimant had a property interest in his applications for DIB. While it is well settled law that disability benefits are protected property interests and may not be terminated without due process o f l a w, see Atkins v. Parker, 472 U .S. 115, 128 (1985), the Supreme Court has not "resolved the specific question o f whether applicants for benefits , who have not yet been adjudicated as entitled to them , posses a property interest in those benefits." Cushman v. Shinseki, 576 F.3d 1290, 1296 (Fed. Cir. 2009). Similarly, the First Circuit has not had occasion to decide whether applicants for disability benefits possess a property interest in those benefits. This Court need not decide this matter o f first impression. Rather, it can assume, as the Magistrate Judge did, that Claimant did indeed have a property interest in his claim for disability benefits . The second prong o f the Procedural Due Process analysis requires the Court to determine what "process is due ." Butland, 673 F . Supp . at 640 . This inquiry requires the general consideration o f three factors First, the private interest that will be affected by the official action; second, the risk o f an erroneous deprivation o f such interest through the procedures used, and the probable value , i f any, o f additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U .S. 319 , 335 (1976).

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Plaintiff argues t h a t the Magistrate Judge erred by requiring her to establish that Claimant failed to request review becaus e o f the defective notice. P l a i n t i f f ' s Mem. at 11. Plaintiff relies on G o n z a l e z v. Sullivan, 914 F. 2d 1197, 1203 ( 9 t h Cir. 1990) , for the principle that " a court should p r e s u m e t h a t a claimant relied on a defective notice." P l a i n t i f f ' s Mem. at 11 (emphasis added). While the Gonzalez decision does not explicitly create such a presumption, district courts within the N i n t h Circuit have d e c l i n e d to require a causal connection between receipt o f a defective notice and failure to request review. See Hill v. Callahan, 962 F. Supp. 1341, 1346 (D. Or. 1997) The First Circuit has not followed suit. See Gilbert v. Sullivan, Civil No. 93-2309, 1995 U.S. App. LEXIS 4373, at *8 ( 1 s t Cir. Mar. 6 , 1 9 9 5 ) . Instead , the First Circuit Court o f Appeals held that " n ot ice o f the type involved in Gonzalez may j u s t i f y reopening o f a c l a i m a n t ' s application, provided that the claimant shows that he ' d e t r i m e n t a l l y relied on [the] inadequate notice.'" Stewart v. Barnhart, 402 F. Supp. 2d 3 5 5 , 3 6 2 (D. Mass. 2005) (quoting Gilbert, 1995 U.S. App. LEXIS at *8)(emphasis added)). Therefore, to succeed on the merits o f her constitutional claim , P l a i n t i f f m u s t have established that Claimant " r e l i e d on the flawed notice." Gilbert, 1995 U.S. App. LEXIS at *9; see also Freese v. Astrue, D o c k e t No. 07-1-P-S, 2007 U .S. Dist. LEXIS 68021, *32-33 (D . Me . Sept. 1 2 , 2 0 0 7 ) ("All the Circuit Courts considering the Social Security determination notice issue, w i t h the e x c e p t i o n o f the N i n t h Circuit, require a causal connection ..." ) . The success o f P l a i n t i f f ' s third objection hinges on w h e t h e r P l a i n t i f f established that Claimant relied on the flawed notice in making the decision not to seek administrative review o f the denial o f his applications. D u r i n g the course o f the administrative h e a r i n g before the ALJ ,

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Plaintiff put forth no evidence o f Claimant ' s detrimental reliance on the defective notice. In fact , the only time P l a i n t i f f s counsel e v e n mentioned the issue o f deficient notice was in closing argument , w h e n P l a i n t i f f s counsel characterized the notice issue as "j u st frosting on the cake ." (R. at 279) . Further, as the Magistrate Judge correctly observed, P l a i n t i f f testified on crossexamination that C l a i m a n t ' s failure to request review was due to his mental illness ; she did not claim that C l a i m a n t ' s failure to request review was caused e v e n in p a r t by the defective notice. (R. at 272). In short , P l a i n t i f f offered no evidence that Claimant detrimentally relied on the defective notice. The Court, therefore, finds that P l a i n t i f f failed to establish the necessary requirement o f causation. Accordingly , the ALJ and Magistrate Judge were correct in concluding that P l a i n t i f f failed to establish that C l a i m a n t ' s Procedural Due Process rights were violated.

IV. CONCLUSION
For the reasons set forth above , the Court adopts the R e p o r t and Recommendation in its entirety. P l a i n t i f f s M o t i o n to Reverse is DENIED and D e f e n d a n t ' s M o t i o n for an Order Affirming the Decision o f the Commissioner is GRANTED.

SO ORDERED .

Mary M.

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lSI

C h i e f United States District Judge December7< 2009

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