Fraker v. Commissioner, Social Security Administration, No. 6:2012cv02349 - Document 19 (D. Or. 2013)
Court Description: OPINION AND ORDER: Granting Defendant's Motion to Dismiss 13 . Signed on 10/1/2013 by Chief Judge Ann L. Aiken. (lg) Modified on 10/3/2013 to add language (lg).
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON LELA M. FRAKER, Civ. No. Plaintiff, 6:12-CV-02349-AA OPINION AND ORDER v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. AIKEN, Chief Judge: Plaintiff judicial request Security brought review to of waive Income a suit decision recovery (SSI) 1 - OPINION AND ORDER under of benefits. 42 by U.S.C. § 405(g) Commissioner overpayment of Defendant moves seeking denying her Supplemental to dismiss plaintiff's complaint for lack of subject matter jurisdiction. Defendant's motion is granted. BACKGROUND Plaintiff continuing was awarded disability SSI review Security Administration benefits in 2002, (the Agency) in 2000. however, After the determined that a Social plaintiff was no longer disabled and ceased her SSI benefits due to her non-cooperation Plaintiff and appealed failure the to continue process. As a condition agreed that received during the provide cessation elected plaintiff to receiving to she of her would of repay the information. benefits, benefits receiving duration necessary during the the continued the amount appeals and she appeals benefits, of benefits process if the outcome of her appeal was unfavorable. Plaintiff proceeded with her appeal by requesting a hearing before an Administrative Law Judge (ALJ), her request on account of abandonment. but the ALJ dismissed Plaintiff requested, and the Appeals Council denied, review of the ALJ's decision. As a consequence of the unsuccessful appeal, the Agency required repayment of the SSI benefits plaintiff received during her appeal. Plaintiff requested waiver of recovery of the overpayment, was denied, and again requested a hearing before an ALJ. 2 - OPINION AND ORDER After a hearing, the ALJ denied plaintiff's request for waiver because plaintiff was not without fault in receiving the overpayment. To support this finding, the ALJ noted that plaintiff stated that "she never read entire letters, or she was not motivated to do anything." Weigel Decl., Ex. 3 at 7. The ALJ noted that the plaintiff "demonstrates otherwise, when she capable of despite any impairment mental acting in her own interests, or chooses to do that she so" and is that "she is knowledgeable about the benefits system." Id. at 6, 9. Plaintiff requested review again, which the Appeals Council granted. The Appeals Council reviewed the ALJ' s decision and remanded the case back to the ALJ with instructions to consider additional found overpayments plaintiff received. that plaintiff additional was overpayments not without for On remand, fault substantially in the the ALJ receiving same the reasons explained in the first decision. On February 25, 2011, the ALJ declined plaintiff's request for wavier of overpayment of SSI benefits. Plaintiff had sixty days to seek review of this decision with the Appeals Council. 20 C.F.R. § nor attorney her 1468(a) Plaintiff does decision, but not in Plaintiff claims, however, that neither she received a copy of the ALJ's decision. remember how she eventually learned of late unfavorable decision. 3 - OPINION AND ORDER July she notified her attorney of the the On request August for 2011, 1, plaintiff's attorney review with the Appeals Council, then filed a more than ninety days past the sixty-day deadline. Upon receiving the request for review, the Appeals Council concluded that there was no good cause to extend the time for filing. Accordingly, on November 8, 2012, the Appeals Council issued an order dismissing plaintiff's request for review. On December 27, judicial review of 2012, the plaintiff filed this action seeking denial of her waiver request and the denial of an extension of time to seek review. DISCUSSION Defendant moves to dismiss plaintiff's claim on the ground that this Court lacks jurisdiction under the Social Security Act (the Act), 42 Commissioner u.s.c. absent a § 405(g), final to decision review made actions after a of the hearing. Def.'s Mem. to Dismiss at 2. In response to the defendant's motion to dismiss, plaintiff does not contend that there has been a hearing; rather, plaintiff alleges final decision after a that the Commissioner violated her due process rights by failing to send her or her attorney a copy of the ALJ's unfavorable decision or to consider whether her mental or physical taking action on her own behalf. at 5-6. Plaintiff submits 4 - OPINION AND ORDER that capacity prevented Pl.'s Resp. this Court her from to Mot. to Dismiss has jurisdiction because these process due violations constitutional claim. See Califano v. (1977) final (holding decision that a made court after a has raise Sanders, 430 U.S. jurisdiction hearing if a colorable a 99, 109 even without plaintiff a raises a Act is colorable constitutional claim). Judicial review of claims authorized and limited by 42 U.S.C. Soc. has Se.c., 264 F. 3d 899, stated that particular type Secretary made (emphasis added) decisions, 902 405 (g) § of a (9th Cir. action, (quoting 42 'final § 430 405(g)). U.S. of the at 108 Discretionary do not constitute final decisions after a hearing subject to judicial review under U.S. decision such as a decision by the Appeals Council dismissing a request for review, 430 judicial review to a Sanders, U.S.C. the 2001). The Supreme Court a hearing.'" under 405(g). Subia v. Comm'r of § "clearly limits agency after arising at 107-09; see also Evans v. § 405(g). Chater, See Sanders, 110 F.3d 1480, 1482 (9th Cir. 1997). The exception Sanders where constitutional Court the recognized Commissioner's grounds. 430 u.s. that there decision at 109. is, is however, an challenged on "[T]he Sanders exception applies to any colorable constitutional claim of due process violation that implicates a due process right Evans, 110 F.3d at 1483 omitted) . (citation and internal quotation marks A colorable constitutional claim is 5 - OPINION AND ORDER II one that is not "made solely for the purpose of obtaining jurisdiction or . is wholly insubstantial, Sec'y of 19 8 5 ) ( quoting Be 11 v . mere Health allegation sufficient to immaterial, or frivolous." Boettcher v. Human & of Servs., Hood, a due raise 759 F.2d 719, 3 2 7 U. S . 67 8 , 68 2 - 8 3 process violation, (9th however, 992 allege (9th Cir. "facts process." Id. 1992) (per curiam). sufficient Here, to state plaintiff's a Rather, not claim to 985 F.2d a plaintiff must violation allegations The "is provide subject matter jurisdiction." Hoye v. Sullivan, 990, Cir. ( 19 4 6 ) ) . constitutional 'colorable' a 722 due of do not raise a colorable constitutional claim which would allow this Court to review the Appeals Council's or the ALJ's decision. Upon receiving claimant may C.F.R. 416.1468(a). to § have request an unfavorable review by decision filing a from written the ALJ, request. a 20 "Any documents or other evidence you wish considered by the Appeals Council should be submitted with your request for review." Id. The request for review is due within sixty days after the date the claimant receives notice of the hearing receipt of decision or such notice dismissal. is Id. presumed to be Further, five the days date after of the date of such notice, unless a reasonable showing to the contrary is made. Id. § 416.1401. In addition, a claimant may ask for an extension of time to file a request for review. 6 - OPINION AND ORDER Id. § 416.1468(b). The request for an extension of time must be filed with the Appeals Council in writing, and it must give the reasons why the request for review was not filed within the stated time period. Id. If the claimant shows good cause for missing the deadline, the time period will be extended. Id. On February 25, 2011, the Agency sent the ALJ's unfavorable decision to the plaintiff and her counsel. at 1-2. The decision was, id. Ex. 7 thus, presumed to be received by both parties no later than March 2, 416.1401. Weigel Decl. , five days later. See 20 C.F.R. § the request for review was due May 2. 1 See Therefore, 416.1468(a) § Plaintiff's attorney, review until deadline. August Weigel 1, Decl. , however, more than Ex. 9. did not file a ninety days In the request past for request the for May review, 2 the sole reason given for filing late was that plaintiff's attorney had just learned decision, and that decision. Id. Ex. that he 8. the did ALJ not The request had issued receive for a copy an of unfavorable the review did not, mailed however, state that plaintiff did not receive the ALJ's decision or that some impairment interfered with plaintiff's ability to respond to the decision. Id. 1 Sixty days from March 2 is actually May 1, which was a Sunday, and the next business day was May 2. 7 - OPINION AND ORDER As no a result, good cause to the Appeals Council concluded that there extend the filing because the ALJ' s notes decision] to the representative at the same address of record." to complaint makes the ALJ' s fact, Hearings Office sent a copy of [the 9. Similar ability the for "decision Id. Ex. that time was plaintiff's no mention request that decision or that her to respond to the for she review, did not impairments ALJ' s plaintiff's receive notice interfered with decision. Compl. at 1-2. of her In plaintiff's complaint is entirely devoid of a due process violation allegation. Id. violation responded until she dismiss. Pl.'s Resp. plaintiff were allowed Plaintiff did not allege a due process to to to to Mot. amend alleged due process violation, because the due process the defendant's Dismiss her at complaint it would not allegations were motion to Even if 4-7. to include change the not the outcome presented to the Appeals Council. The essence of due process at a meaningful Eldridger 424 time U.S. and 319, in 333 is the opportunity to be heard a meaningful (1976) The manner. Mathews procedures v. provided under the Act afforded plaintiff exactly that. When the Appeals Council made the determination that there was no good cause to extend the time for filing, all of the evidence 8 - OPINION AND ORDER presented to it; namely, it considered that plaintiff's attorney did Appeals not Council plaintiff or receive and the her a copy Agency's attorney evidence or affidavits. of the ALJ's regulations from decision. did presenting not any The prevent additional Plaintiff and her attorney were free to present evidence to the Appeals Council to show that neither of them received notice of the ALJ's decision and that plaintiff's impairments notice; interfered yet, they arguments in obtaining jurisdiction, 759 at F.2d the did with not eleventh 722. her do ability so. hour which Therefore, respond Plaintiff solely plaintiff the to for plaintiff produced the cannot to these purpose do. does the of Boettcher, not raise a colorable constitutional claim. Similarly, plaintiff's argument regarding equitable tolling provides no relief. Plaintiff did not use all due diligence. See Santa Maria v. Pacific Bell, 202 F.3d 1170, 1178 (9th Cir. 2000) (stating that equitable tolling may be applied if, due diligence, a plaintiff is unable to despite all obtain vital information). Plaintiff and her attorney could have submitted to the Appeals Council the same materials submitted to this Court in response to the motion to dismiss; again, they did not do so. As a result, rights. the plaintiff was not prevented from asserting her See Burnett v. New York Cent. R. Co., ( 1965) . 9 - OPINION AND ORDER 380 U.S. 424, 429 Consequently, the defendant's motion to dismiss for lack of subject matter jurisdiction is granted. CONCLUSION Defendant's motion to dismiss IT IS SO ORDERED. Dated this L day of (doc. 13) is GRANTED. ~ ~beL," 2013. Ann Aiken United States District Judge 10 - OPINION AND ORDER
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