Marie F. Russel v. Michael J. Astrue, No. 2:2009cv05299 - Document 13 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. The Agency's decision to not allow Plaintiff to proceed on an untimely request for review is not reviewable. Further, the denial of benefits on reconsideration is not a "fin al decision" under Social Security law and, therefore, the Court does not have jurisdiction to review it. For these reasons, the Agency's motion to dismiss is granted and the action is dismissed with prejudice, 11 . IT IS SO ORDERED. (ca)
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Marie F. Russel v. Michael J. Astrue Doc. 13 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 MARIE F. RUSSEL, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 09-5299-PJW MEMORANDUM OPINION AND ORDER 16 17 Before the Court is a motion to dismiss this action by Defendant 18 Social Security Administration (hereinafter “the Agency”). 19 that the Court lacks subject matter jurisdiction to consider 20 Plaintiff’s challenge to the Agency’s decision denying benefits 21 because the Agency’s decision is not a “final decision” under Social 22 Security law. 23 motion is hereby granted and the action is dismissed with prejudice. 24 In March 2008, Plaintiff applied for Disability Insurance For the following reasons, the Court agrees. It argues The 25 Benefits. Her application was denied initially and on 26 reconsideration. 27 reconsideration was issued by the Agency on November 18, 2008. 28 the rules governing appeals, Plaintiff had 65 days from that date, The decision denying the application on Under Dockets.Justia.com 1 until January 22, 2009, to appeal the decision to an Administrative 2 Law Judge (“ALJ”). 3 On February 26, 2009, Plaintiff’s counsel sent a fax to the 4 Agency, inquiring about the status of the case. The following day, 5 the Agency faxed counsel a copy of the November 18th decision. 6 Counsel immediately filed a request for review of that decision, 7 explaining that neither he nor his client had received the decision. 8 On April 29, 2009, an ALJ dismissed Plaintiff’s request for review on 9 the ground that it was untimely. Plaintiff appealed the ALJ’s 10 decision to the Appeals Council, which denied Plaintiff’s request for 11 review. 12 seeking a review of the Agency’s denial of her claim for benefits. 13 Plaintiff then filed the instant action in this court, The Agency now moves to dismiss the action. It argues that the 14 Court is not empowered to review the merits of the Agency’s denial of 15 Plaintiff’s application for benefits because the ALJ and the Appeals 16 Council dismissed the appeal as untimely. 17 they never reached the merits of Plaintiff’s application. 18 Agency’s view, this means that its decision on the merits is not final 19 and, hence, not reviewable. 20 does not have jurisdiction to review the Agency’s decision denying 21 Plaintiff’s request to file a late appeal. 22 As a result, it claims, In the The Agency also argues that the Court The weight of authority supports the Agency’s position. In 23 Matlock v. Sullivan, 908 F.2d 492 (9th Cir. 1990), the Ninth Circuit 24 held that the Agency’s decision to refuse to consider an untimely 25 petition for review was not a final decision within the meaning of 26 Social Security law and, therefore, was not reviewable by the district 27 court under 42 U.S.C. §§ 405(g) and (h). 28 circuit relied on Matlock to conclude that the district court did not 2 Eleven years later, the 1 have jurisdiction to review the Railroad Retirement Board’s decision 2 not to extend the time for filing an untimely challenge. 3 Railroad Retirement Bd., 262 F.3d 1005, 1009-10 (9th Cir. 2001). 4 2009, in an unpublished decision, the circuit, again relying on 5 Matlock, again concluded that district courts do not have subject 6 matter jurisdiction to consider challenges to the Agency’s denial of 7 benefits where, as here, the Agency denied the claimant’s request to 8 file a late appeal. 9 2017538, at *1 (9th Cir. July 10, 2009) (affirming district court’s Rivera v. In Larsen v. Comm’r Soc. Sec. Admin., 2009 WL 10 dismissal on jurisdictional grounds of claimant’s challenge to 11 Agency’s refusal to allow her to proceed on untimely request for 12 review). 13 constitutional claims, see Evans v. Chater, 110 F.3d 1480, 1482-83 14 (9th Cir. 1997), Plaintiff has not raised a constitutional claim and, 15 therefore, any potential claim is waived. 16 2017538, at *1. 17 Though there is an exception to this general rule for See Larsen, 2009 WL The Agency’s decision to not allow Plaintiff to proceed on an 18 untimely request for review is not reviewable. Further, the denial of 19 benefits on reconsideration is not a “final decision” under Social 20 Security law and, therefore, the Court does not have jurisdiction to 21 review it. 22 granted and the action is dismissed with prejudice. For these reasons, the Agency’s motion to dismiss is 23 IT IS SO ORDERED. 24 DATED: January 18, 2011. 25 26 27 28 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE S:\PJW\Cases-Soc Sec\Russel\Memo.opinion and order.wpd 3
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