Cook v. Colvin

Filing 14

ORDER granting 9 Motion to Dismiss; Nancy A Berryhill added. Carolyn W. Colvin (Acting Commissioner of Social Security) terminated. Signed by Judge Robert J. Bryan.(JL)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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MICHAEL G. COOK,
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Plaintiff,
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Case No. 3:16-cv-05980-RJB
ORDER GRANTING MOTION TO
DISMISS

v.
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NANCY A. BERRYHILL, Acting
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Defendant.

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This matter is before the Court on defendant Commissioner Nancy A. Berryhill’s motion

14 to dismiss for lack of subject matter jurisdiction. Dkt. 9. Plaintiff Michael G. Cook has filed a
15 response. Dkt. 12-1. Because plaintiff has not exhausted his administrative remedies nor raised a
16 colorable constitutional claim, this Court lacks jurisdiction to hear this matter. For these reasons,
17 defendant’s motion to dismiss is granted.
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PROCEDURAL HISTORY
Plaintiff first applied for Social Security disability insurance benefits in 2009. See Dkt. 10

20 at Exhibit 7, p. 4. The Commissioner denied plaintiff’s application, and plaintiff did not request
21 reconsideration or a hearing. Id.
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Plaintiff applied for disability benefits again in 2012. See id. at Exhibits 1, 3. The

23 Commissioner denied this application, and plaintiff requested a hearing before an administrative

ORDER - 1

1 law judge (“ALJ”). See id. at Exhibit 3, p. 4. However, plaintiff then asked to withdraw his
2 request for a hearing, and the ALJ accordingly dismissed the request for a hearing. See id.
3 Plaintiff then asked the Appeals Council to review the dismissal. See id. at Exhibit 4. The
4 Appeals Council declined. See id.
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Plaintiff then filed a third application for disability benefits in 2013. See id. at Exhibit 7,

6 pp. 4-6. After the application was denied, plaintiff requested a hearing before an ALJ and asked
7 the ALJ to reopen the first two applications. See id. The ALJ declined to reopen the earlier
8 applications and dismissed plaintiff’s request for a hearing. See id. The Appeals Council denied
9 plaintiff’s request for review of this aspect of the ALJ’s decision. See id. at Exhibit 8.
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Plaintiff filed a complaint with this Court seeking judicial review. See Dkt. 3. The

11 Commissioner filed a motion to dismiss, arguing that this Court is without subject matter
12 jurisdiction to hear this matter. See Dkt. 9; see also Fed. R. Civ. P. 12(b)(1).
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STANDARD OF REVIEW

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Federal courts have limited jurisdiction and “possess only that power authorized by

15 Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377
16 (1994) (citations omitted). When presented with a motion to dismiss for lack of subject matter
17 jurisdiction, a plaintiff has the burden to demonstrate that this Court has jurisdiction. See id.; see
18 also Fed. R. Civ. P. 12(b)(1). When presented with a motion to dismiss pursuant to Fed. R. Civ.
19 P. 12(b)(1), the Court favorably views “the facts alleged to support jurisdiction.” McNatt v.
20 Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000) (citing Boettcher v. Sec. Health & Human Servs., 759
21 F.2d 719, 720 (9th Cir. 1985)).
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This Court has statutory jurisdiction to review “any final decision of the Commissioner of

23 Social Security made after a hearing.” 42 U.S.C. § 405(g). Pursuant to the relevant federal

ORDER - 2

1 regulations, a claimant obtains a judicially reviewable final decision only after completing all of
2 the required steps, including asking for reconsideration of an initial determination, requesting a
3 hearing, and requesting review by the Appeals Council. See 20 C.F.R. §§ 404.907, 404.929,
4 404.967. A claimant seeking judicial review must either receive a decision by the Appeals
5 Council or notice from the Appeals Council that it has denied the claimant’s request for review.
6 See 20 C.F.R. §§ 404.981, 122.210(a).
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Although the Court has jurisdiction pursuant to statute to review only the final decision of

8 the Social Security Administration made after a hearing, a discretionary decision by the
9 Administration that is not a final decision may be subject to an exception where the
10 Commissioner’s decision “is challenged on constitutional grounds.” Evans v. Chater, 110 F.3d
11 1480, 1482 (9th Cir. 1997) (citing Califano v. Sanders, 430 U.S. 99, 109 (1977)); 42 U.S.C.
12 § 405(g). The Ninth Circuit has “held that ‘the Sanders exception applies to any colorable
13 constitutional claim of due process violation that implicates a due process right either to a
14 meaningful opportunity to be heard or to seek reconsideration of an adverse benefits
15 determination.’” Udd v. Massanari, 245 F.3d 1096, 1099 (9th Cir. 2001) (quoting Evans, 110
16 F.3d at 1483); see also Sanders, 430 U.S. at 107-09. According to the Ninth Circuit, a “challenge
17 that is not ‘wholly insubstantial, immaterial, or frivolous’ raises a colorable constitutional
18 claim.” Udd, 245 F.3d at 1099 (quoting Boettcher, 59 F.2d at 722).
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As stated by the Supreme Court, “[c]onstitutional questions obviously are unsuited to

20 resolution in administrative hearing procedures and, therefore, access to the courts is essential to
21 the decision of such questions.” Sanders, 430 U.S. at 109. The Court noted the “well-established
22 principle that when constitutional questions are in issue, the availability of judicial review is
23 presumed.” Id. (citations omitted).

ORDER - 3

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Because an individual’s interest in social security benefits is a property interest created

2 by statute and protected by the Fifth Amendment, if a claimant has properly raised a due process
3 claim with respect to the denial of such benefits, this Court has jurisdiction over this matter. See
4 Sanders, 430 U.S. at 109; Mathews v. Eldridge, 424 U.S. 319, 332 (1976); Udd, 245 F.3d at
5 1099; Evans, 110 F.3d at 1483.
DISCUSSION

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Plaintiff concedes that he did not exhaust his administrative remedies and receive a final

8 decision made after a hearing. See Dkt. 12-1 at 5. However, plaintiff alleges that the
9 Commissioner violated plaintiff’s constitutional right to due process by denying him a
10 meaningful opportunity to be heard.1 See id. at 5-8.
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Plaintiff argues that he was first denied a meaningful opportunity to be heard when he did

12 not receive a hearing following the denial of his first application. See id. at 5. However, plaintiff
13 “decided to request that the ALJ dismiss his case” and withdrew his request for a hearing. See
14 Dkt. 11-1 at 3. Plaintiff argues that he failed to understand the impact of that withdrawal. See
15 Dkt. 12-1 at 5. A claimant may be denied a meaningful opportunity to be heard if, for example,
16 he “lacked the mental capacity to understand the [Commissioner]’s termination notice and the
17 procedures for contesting that termination.” Udd, 245 F.3d at 1099. However, the evidence here
18 does not indicate that plaintiff lacked the mental capacity to understand the opportunity to
19 receive a hearing. Instead, plaintiff actively chose not to pursue his right to a hearing but later
20 “changed his mind.” See Dkt. 11-1 at 3. While plaintiff may have made a regrettable choice,
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Plaintiff also argues that the Commissioner committed several other errors in choosing to deny
22 his requests to reopen prior applications. See Dkt. 12-1 at 5-8. However, those alleged violations
of the Commissioner’s regulations are not constitutional questions, and this Court does not have
23 jurisdiction to review “alleged abuses of agency discretion in refusing to reopen claims for social
security benefits.” See Califano, 430 U.S. at 107–08.
ORDER - 4

1 allegedly due to incorrect legal advice (see Dkt. 12-1 at 5), that fact does not show that he was
2 denied an opportunity or that the opportunity was not meaningful. Therefore, plaintiff has not
3 met his burden of showing a colorable constitutional claim.
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Plaintiff also argues that he had no meaningful opportunity to be heard before the

5 Appeals Council. See Dkt. 12-1 at 6. However, the Appeals Council specifically stated that it
6 looked at plaintiff’s case, considered the reasons that plaintiff disagreed with the dismissal of his
7 case, and found that the relevant evidence did not provide a basis for changing the ALJ’s
8 dismissal. See Dkt. 10 at Exhibit 4. Plaintiff claims that the Appeals Council violated his due
9 process rights because it did not “meaningfully explain its decision,” analogizing the case to
10 Dexter v. Colvin, 731 F.3d 977 (9th Cir. 2013). See Dkt. 12-1 at 6. However, according to the
11 Ninth Circuit, the Appeals Council’s denial of review in Dexter violated due process because it
12 “could not have made an informed decision” where the ALJ had failed to discuss all of the
13 claimant’s facially legitimate good cause arguments against a dismissal. See Dexter, 732 F.3d at
14 981. Here, the ALJ explained in her order of dismissal that plaintiff withdrew his request for a
15 hearing after being “fully advised of the effects of [that] action.” See Dkt. 10 at Exhibit 3, p. 4.
16 The Appeals Council made a decision after review of the ALJ’s dismissal and consideration of
17 the reasons that plaintiff disagreed with that dismissal. See id. at Exhibit 4. Plaintiff does not
18 show that the ALJ’s dismissal was insufficient and left the Appeals Council without an
19 opportunity to make an informed decision. Therefore, plaintiff has not raised a colorable
20 constitutional claim.
CONCLUSION

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Pursuant to the relevant federal regulations, plaintiff failed to exhaust his administrative

23 remedies. Therefore, this Court does not have jurisdiction pursuant to statute to hear this matter.

ORDER - 5

1 In addition, as plaintiff has not raised a colorable constitutional claim, this Court does not have
2 jurisdiction pursuant to the Constitution to hear this matter. For these reasons, the Court
3 GRANTS the Commissioner’s motion to dismiss this case.
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DATED this 12th day of June, 2017.

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A

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ROBERT J. BRYAN
United States District Judge

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ORDER - 6