Kinsley v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: October 2, 2019
• Docket: 2:19-cv-00991
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 MAXWELL KINSLEY, 8 Plaintiff, CASE NO. 2:19-cv-00991-BAT 9 v. ORDER GRANTING MOTION TO 10 DISMISS COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12

13 Pro se Plaintiff Maxwell Kinsley brings this action against the Commissioner of Social 14 Security, for judicial review of a decision by the Commissioner. The Commissioner moves to 15 dismiss this action based on Fed. R. Civ. P. 12(b)(1) or, in the alternative, under Fed. R. Civ. P. 16 12(b)(6). Dkt. 9. Counsel for the Commissioner called and emailed Plaintiff in an attempt to 17 confer on this motion, but received no response. Dkt. 9, p.1. Plaintiff filed no response to the 18 motion to dismiss. 19 Having considered the motion, Plaintiff’s failure to respond, and remaining record, the 20 Court concludes it lacks subject matter jurisdiction and therefore, the Commissioner’s motion to 21 dismiss should be granted and this case should be dismissed with prejudice. 22 BACKGROUND 23 Plaintiff’s complaint is related to his applications for Title II and Title XVI benefits under the Social Security Act. Dkt. 3, p. 2. He asks that the court award disability benefits or remand 1 for further administrative proceedings. Id., p. 4. 2 Plaintiff applied for benefits in November 2012. Dkt. 9, Exh. 2, Declaration of 3 Christianne Voegele, Chief of Court Case Preparation in the Office of Appellate Operations, pp. 4 2-3. Over the next six years, Plaintiff obtained two ALJ decisions that were each remanded by 5 the Appeals Council. Id., Exh. 1, pp. 3-6. Ultimately, on remand from the Appeals Council in

6 November 2018, a new ALJ dismissed Plaintiff’s request for a hearing due to Plaintiff’s failure 7 to appear. Id., Exh. 1, p. 5. Plaintiff requested review of this decision from the Appeals Council, 8 but he sought this review after the 60-day deadline. Id. In April 2019, the Appeals Council 9 dismissed Plaintiff’s request for review. Id., p. 6. 10 STANDARD OF REVIEW 11 A party may file a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) 12 challenging the subject matter jurisdiction of the Court. “Federal courts are courts of limited 13 jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). As such, 14 they may only review cases as authorized by either the Constitution or a federal statute. Id. “If

15 jurisdiction is lacking at the outset, the district court has no power to do anything with the case 16 except dismiss [it].” Morongo Band of Mission Indians v. California Bd. of Equalization, 858 17 F.2d 1376, 1380 (9th Cir. 1988) (quotation omitted). 18 Congress has limited federal courts’ jurisdiction over determinations by the Social 19 Security Administration (“SSA”). Under the Social Security Act, federal courts may only review 20 a “final decision of the Commissioner of Social Security made after a hearing.” 42 U.S.C. § 21 405(g). Although the Social Security Act does not define the term “final decision,” the 22 Commissioner has done so by regulation. Weinberger v. Salfi, 422 U.S. 749, 751 (1975) 23 (recognizing power of Commissioner to define “final decision”); see also 42 U.S.C. § 405(a) 1 (outlining Commissioner’s powers). Under the applicable regulations, a claimant must first 2 complete the SSA’s administrative review process before he can obtain a judicially reviewable 3 final decision. 20 C.F.R. § 416.1400(a)(1)–(5) (enumerating the four steps in the administrative 4 review process); Califano v. Sanders, 430 U.S. 99, 108 (1977) (Section 405(g) “clearly limits 5 judicial review to ... a ‘final decision’ of the [Commissioner] made after a hearing.”). “A final

6 decision has two elements: (1) presentment of the claim to the Commissioner, and (2) complete 7 exhaustion of administrative remedies.” Kildare v. Saenz, 325 F.3d 1078, 1082 (9th Cir. 2003). 8 Without a final agency decision, a district court has no subject-matter jurisdiction. 42 U.S.C. §§ 9 405(g) and 1383(c); 20 C.F.R. § 416.1400(a)(5); Sanders, 430 U.S. at 108-09. 10 DISCUSSION 11 A. Exhaustion 12 The SSA’s prescribed administrative remedies consist of the following four steps: First, 13 the SSA provides the claimant with an initial determination. 20 C.F.R. § 416.1400(a) (1). 14 Second, if the claimant is dissatisfied with the initial determination, he may ask the SSA to

15 reconsider it. 20 C.F.R. § 416.1400(a)(2). Third, if the claimant is dissatisfied with the 16 reconsidered decision, he may request a hearing before an ALJ. 20 C.F.R. § 16.1400(a)(3). And 17 finally, if the claimant is not satisfied with the ALJ’s decision, he may request that the SSA’s 18 Appeals Council review the ALJ’s decision. 20 C.F.R. § 416.1400(a)(4). The Appeals Council 19 may either grant review or deny the request and allow the ALJ’s decision to stand as the final 20 decision of the Commissioner. 20 C.F.R. § 416.1467. 21 There is no final decision subject to federal judicial review unless and until all four steps 22 of the administrative review process have been completed. 20 C.F.R. § 416.1400(a) (5). If the 23 claimant fails to complete all four steps of the administrative review process, the SSA’s initial 1 determination is binding and the claimant may not seek judicial review in the federal courts. See 2 20 C.F.R. §§ 416.1405, 416.1421, 416.1455, 416.1481. 3 Here, Plaintiff failed to complete all four steps of the administrative review process. In 4 January 2018, the ALJ dismissed Plaintiff’s request for a hearing because Plaintiff failed to 5 appear. Dkt. 9, Ex. 2, Voegele Dec., p. 5, Exh. 33 (Notice of Dismissal). Because Plaintiff did

6 not obtain a “final decision of the Commissioner made after a hearing to which he was a party,” 7 as required by 42 U.S.C. § 405(g), he has plainly not exhausted his administrative remedies. 8 Without a final decision, the Court lacks jurisdiction. Califano, 430 U.S. at 108. Plaintiff has 9 established no exception to this exhaustion requirement. 10 B. No Exception to Exhaustion Requirement 11 To waive exhaustion, “[t]he claim must be (1) collateral to a substantive claim of 12 entitlement (collaterality), (2) colorable in its showing that denial of relief will cause irreparable 13 harm (irreparability), and (3) one whose resolution would not serve the purposes of exhaustion 14 (futility).” Kildare, 325 F.3d at 1082.

15 Plaintiff fails to meet these requirements. Plaintiff does not address the procedural history 16 of his case but suggests instead, that his impairments kept him from “knowing or responding” to 17 the agency’s decisions. Dkt. 3, p. 4. Even if these allegations are true, they do not satisfy the 18 three-part waiver test. Because Plaintiff’s claim is a claim for disability benefits, the doctrine of 19 exhaustion serves important purposes, such as the development of factual records. A claimant 20 may not circumvent the exhaustion requirement by alleging procedural irregularities, when the 21 claimant’s case is essentially a claim for disability benefits. Kildare, 325 F.3d at 1083-84. 22 Plaintiff has also not shown that his is the rare case involving a colorable constitutional 23 claim. An exception to the “final decision” jurisdictional requirement of 42 U.S.C. § 405(g) 1 exists in the “rare instances” where a claimant alleges a “colorable constitutional claim” flowing 2 from a non-final decision. Sanders, 430 U.S. at 109. For this Court to acquire jurisdiction, the 3 claimant must present a “colorable constitutional claim of due process violation that implicates a 4 due process right either to a meaningful opportunity to be heard or to seek reconsideration of an 5 adverse benefits determination.” Udd v. Massanari, 245 F.3d 1096, 1099 (9th Cir. 2001)

6 (citation omitted). The “mere allegation of a due process violation is not sufficient to raise a 7 colorable constitutional claim . . . . Rather, the plaintiff must allege facts sufficient to state a 8 violation of substantive or procedural due process.” Anderson v. Babbitt, 230 F.3d 1158, 1163 9 (9th Cir. 2000) (internal quotations omitted). 10 Plaintiff briefly suggests that the Commissioner’s decision was influenced by racial 11 discrimination. Dkt. 3, p. 4 (“I think it is rasical [sic] discrimination because he did not even read 12 my reasons my mental disability that prevent me from knowing or responding Black doos [sic] 13 matter.” ECF No. 3, p. 4. Plaintiff does not support this assertion with any specific factual 14 allegations, other than his belief that the ALJ did not read his reasons. Because Plaintiff “has

15 failed to allege facts that would indicate bias on the part of the ALJ or that such bias caused the 16 ALJ to ‘arbitrarily and capriciously’ dismiss his request for a hearing,” his claim of a substantive 17 due process violation fails. Hoye v. Sullivan, 985 F.2d 990, 992 (9th Cir. 1992). Plaintiff’s vague 18 allegation does not amount to a colorable constitutional claim. 19 In earlier submissions to the Appeals Council, Plaintiff argued that he did not receive the 20 various hearing notices mailed by the ALJ. Dkt. 9, Ex. 2, Voegele Dec., Exhibit 35. However, 21 “[d]ue process is satisfied if service is conducted in a manner ‘reasonably calculated’ to ensure 22 that notice reaches” the individual. Popa v. Holder, 571 F.3d 890, 897 (9th Cir. 2009) (abrogated 23 on other grounds by Lopez v. Barr, 925 F.3d 396, 401 (9th Cir. 2019). If the government mails 1 the notice of hearing to the individual’s last known address, and the claimant has not completed a 2 change of address, this is sufficient, and it does not violate the individual’s due process rights. Id. 3 at 898. 4 The recent case of Smith v. Berryhill, 139 S. Ct. 1765, 1777 (2019), does not require a 5 different conclusion. In Smith, the Supreme Court held that federal courts have jurisdiction to

6 review the Appeals Council’s decision dismissing review on the basis of an untimely request. 7 However, the claimant had already obtained a final decision on the merits of his case by an ALJ: 8 “Where, as here, a claimant has received a claim-ending timeliness determination from the 9 agency’s last-in-line decisionmaker after bringing his claim past the key procedural post (a 10 hearing) mentioned in § 405(g), there has been a “final decision ... made after a hearing” under § 11 405(g).” Id. at 1777. In this case, because the ALJ dismissed Plaintiff’s request for a hearing 12 after Plaintiff failed to appear, Plaintiff did not obtain a hearing or a decision on the merits of his 13 claim before proceeding to the Appeals Council. 14 Because Plaintiff’s vague assertions do not establish any exceptions to the waiver

15 doctrine or present a colorable claim of a constitutional issue, the Court declines to waive the 16 exhaustion requirement. 17 CONCLUSION 18 Because the Court lacks subject matter jurisdiction, the Court GRANTS Defendant’s 19 motion to dismiss (Dkt. 9). This matter is DISMISSED with prejudice and the Clerk is directed 20 to close the case. 21 DATED this 2nd day of October, 2019. 22 A 23 BRIAN A. TSUCHIDA Chief United States Magistrate Judge