Beaudreau v. SSA

2017 DNH 125

• Court: District Court, D. New Hampshire
• Decided: June 20, 2017
• Docket: 17-cv-032-JD
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Robert Norman Beaudreau

v. Civil No. 17-cv-032-JD Opinion No. 2017 DNH 125 Nancy A. Berryhill, Acting Commissioner, Social Security Administration

O R D E R

Robert Norman Beaudreau brought suit seeking judicial

review, pursuant to 42 U.S.C. § 405(g), of the decision of the

Social Security Administration to deny him social security

retirement benefits under the Windfall Elimination Provision.

The Acting Commissioner moves to dismiss on the ground that the

court lacks subject matter jurisdiction. Beaudreau filed an

untimely response to the motion. The Acting Commissioner filed

a reply.

Standard of Review

For purposes of a motion to dismiss for lack of subject

matter jurisdiction under Rule 12(b)(1), the court credits the

plaintiff's properly pleaded allegations and draws all

reasonable inferences in the plaintiff's favor. Reddy v. Foster, 845 F.3d 493, 497 (1st Cir. 2017). In addition to the

complaint, the court considers other materials and evidence in

the record “whether or not the facts therein are consistent with

those alleged in the complaint.”1 Id.; see also Torres-Negron v.

J&N Records, LLC, 504 F.3d 151, 163 (1st Cir. 2007). When

subject matter jurisdiction is challenged, the party asserting

subject matter jurisdiction, the plaintiff in this case, has the

burden of showing that jurisdiction exists. Acosta-Ramirez v.

Banco Popular de P.R., 712 F.3d 14, 20 (1st Cir. 2013).

Discussion

In support of the motion to dismiss, the Acting

Commissioner contends that the underlying administrative action,

the Appeals Council’s order dated January 13, 2017, is not a

“final decision” of the Acting Commissioner of Social Security

under § 405(g). As a result, the Acting Commissioner asserts,

the order is not subject to judicial review so that the court

1 Beaudreau, who is represented by counsel, asserts that the Acting Commissioner improperly supported the motion to dismiss with other evidence, including a declaration. Beaudreau is mistaken. An affidavit or declaration that would not be considered for purposes of a motion to dismiss under Rule 12(b)(6) is properly considered for purposes of a motion under Rule 12(b)(1). See Mehic v. Dana-Farber Cancer Inst., Inc., 2017 WL 637681, at *3 (D. Mass. Feb. 16, 2017); Conservation Law Found. v. Cont'l Paving, Inc., 2016 WL 7116019, at *2 (D.N.H. Dec. 6, 2016).

2 lacks subject matter jurisdiction in this case. Beaudreau does

not address subject matter jurisdiction directly and instead

argues that the Acting Commissioner has mischaracterized the

relief that he is seeking through judicial review and challenges

the administrative procedure used to process his requests for

reconsideration of administrative decisions.

In the January 13 order, the Appeals Council held that the

Administrative Law Judge (“ALJ”) erred in considering

Beaudreau’s challenge to the calculation of benefits and should

have considered only whether Beaudreau was entitled to

readjudication under Acquiescence Ruling (“AR”) 12-1(8). The

Appeals Council determined that Beaudreau was not entitled to

readjudication under AR 12-1(8), and, as a result, the ALJ

should have dismissed Beaudreau’s claim. The Appeals Council

retroactively dismissed Beaudreau’s request for a hearing,

making the ALJ’s decision of no effect, and reinstated the

decision issued on October 28, 2008, as the final decision of

the Commissioner.

This court has jurisdiction to review final decisions of

the Commissioner of Social Security. § 405(g). “Absent a

constitutional claim, [the court] lack[s] jurisdiction to review

the Secretary’s refusal to reopen a prior adjudicated claim.”

Dvareckas v. Sec’y of Health & Human Servs., 804 F.2d 770, 771

3 (1st Cir. 1986) (citing Califano v. Saunders, 430 U.S. 99

(1977)). An agency action, without a hearing, is not a final

decision of the Commissioner for purposes of § 405(g). Rios v.

Sec’y of Health, Ed., & Welfare, 614 F.2d 25, 26 (1st Cir.

1980). In addition, a decision to retroactively dismiss a

request for a hearing is not a final decision that is subject to

judicial review under § 405(g). Hockridge v. Barnhart, 44 F.

App’x 107 (D.C. Cir. 2002); Morris v. Colvin, 183 F. Supp. 3d

1133, 1136 (D. Colo. 2016).

Beaudreau states that there is “no question” that the

Appeals Council’s decision was final and that the Acting

Commissioner is “splitting hairs” in the characterization of his

claim. He has not shown, however, that the Appeals Council’s

decision was a final decision within the meaning of § 405(g)

and, for that reason, has not carried his burden to show that

subject matter jurisdiction exists. In the absence of subject

matter jurisdiction, the court cannot review the Appeals

Council’s decision.

Conclusion

For the foregoing reasons, the defendant’s motion to

dismiss (document no. 5) is granted, and the case is dismissed

for lack of subject matter jurisdiction.

4 The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

__________________________ Joseph DiClerico, Jr. United States District Judge

June 20, 2017

cc: Leslie Nixon, Esq. T. David Plourde, Esq.