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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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 MICHAEL G. COOK, 8 Plaintiff, 9 Case No. 3:16-cv-05980-RJB ORDER GRANTING MOTION TO DISMISS v. 10 NANCY A. BERRYHILL, Acting 11 Commissioner of Social Security, Defendant. 12 13 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. 18 19 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. 22 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. 5 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. 10 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). 13 STANDARD OF REVIEW 14 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)). 22 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). 7 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). 19 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 1 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 6 7 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. 11 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, 21 1 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. 4 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 21 22 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. 4 DATED this 12th day of June, 2017. 5 A 6 7 ROBERT J. BRYAN United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ORDER - 6

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