Ronald Welch v. Michael J Astrue, No. 5:2011cv00740 - Document 22 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman: For the reasons set forth, the action is dismissed for lack of subject matter jurisdiction. (See document for details.) Defendant's motion to dismiss for lack of subject matter jurisdiction is GRANTED. (rla)
Download PDF
<![CDATA[
1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 EASTERN DIVISION 9 10 RONALD WELCH, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 11-0740-MLG MEMORANDUM OPINION AND ORDER 17 18 Plaintiff Ronald Welch seeks judicial review of the Appeals 19 Council s denial of an application to reopen the dismissal of a request 20 for review. Plaintiff seeks remand to the Appeals Council with an 21 instruction that it consider Plaintiff s request for review on the 22 merits. For the reasons set forth below, the action is dismissed for 23 lack of subject matter jurisdiction. 24 25 I. Background 26 On March 29, 1999, Plaintiff applied for Social Security Disability 27 benefits alleging an onset date of September 13, 1996. (Joint Stip., Ex 28 A at 3.) On February 27, 2002, the ALJ issued an unfavorable decision. 1 (Id. at 11.) On July 15, 2003, Plaintiff requested that the Appeals 2 Council review the February 27, 2002 unfavorable determination. On July 3 15, 2003, the Appeals Council remanded the case to the ALJ for further 4 proceedings. (Id. at 17-19.) On August 28, 2003, the ALJ again denied 5 benefits. (Id. at 20-28.) 6 Plaintiff had 60 days, or until October 27, 2003, to request that 7 the Appeals Council review the August 28, 2003 decision. 20 C.F.R. § 8 404.968. An untimely request for review will result in the Appeals 9 Council dismissing the request. 20 C.F.R. § 404.971. Plaintiff contends 10 that on September 25, 2003, he faxed to the Appeals Council a request 11 for review. In support of this contention, Plaintiff attached to his 12 pleadings the following documents: (1) a fax cover sheet dated September 13 25, 2003; (2) a request for review; and (3) a fax transmission log dated 14 September 25, 2003. (Id. at 31 to 33) ( the September 2003 request for 15 review ). 16 There being no action taken on the request for review, on August 9, 17 2004, Plaintiff faxed a status request to the Appeals Council. (Id. at 18 39-40) ( the August 2004 status request ). On March 29, 2005, at the 19 request of the Appeals Council, Plaintiff faxed a copy of the September 20 2003 request for review and the August 2004 status request. (Id. at 34- 21 43.) 22 On January 13, 2006, the Appeals Council dismissed Plaintiff s 23 request for review, finding that it was not filed within 60 days of the 24 ALJ s unfavorable decision, as required by 20 C.F.R. 404.968(a). The 25 denial states in pertinent part: 26 The representative, Bill LaTour, faxed a request for review 27 for the claimant to the Appeals Council on March 29, 2005. The 28 request for review is dated September 25, 2003 and a cover 2 1 sheet dated September 25, 2003 is attached. There is also a 2 receipt showing a fax was sent to the Appeals Council on 3 September 25. However, the representative did not submit any 4 clear proof that this particular request for review was faxed 5 to the Appeals Council in a timely manner. 6 (Id. at 44-46.) 7 On February 7, 2006, Plaintiff faxed a request to the Appeals 8 Council seeking reconsideration of the January 13, 2006 dismissal of his 9 request for review. (Id. at 46-58.) That request was apparently denied 10 on February 20, 2007. (Id. at 60). 11 On February 23, 2009, Plaintiff faxed a request to reopen the 12 August 2003 unfavorable decision, accompanied by a declaration by 13 attorney Bill LaTour, signed under penalty of perjury, authenticating 14 the September 2003 request for review.1 (Id. at 84-88.) On August 13, 15 2010, Plaintiff again requested that the Appeals Council reopen the 16 August 2003 unfavorable decision. (Id. at 81-82.) According to the 17 parties, on March 30, 2011, the Appeals Council denied review of the 18 second application for benefits and again denied Plaintiff s request to 19 reopen of the 2003 decision. 20 21 II. Standard of Review 22 The Social Security Act authorizes judicial review of any final 23 decision of the Commissioner of Social Security made after a hearing to 24 25 26 27 28 1 Prior to this, Plaintiff apparently filed a new application for benefits. As part of that application, Plaintiff requested that the ALJ reopen the 1999 application as well as the 2006 Appeals Council determination. On July 29, 2009, the ALJ denied the application as well as Plaintiff s request to overturn the Appeals Council s 2006 decision, stating that he lacked authority or jurisdiction to do so. (Id. at 7477, 98-101.) 3 1 which he was a party[.] 42 U.S.C. § 405(g). The Act itself provides 2 that this is the exclusive basis for the district court s jurisdiction 3 to review such decisions. See 42 U.S.C. § 405(h) ( No ... decision of 4 the Commissioner of Social Security shall be reviewed by any person, 5 tribunal, or governmental agency except as herein provided. ). A 6 decision not to reopen a prior, final benefits decision is discretionary 7 and ordinarily does not constitute a final decision; therefore, it is 8 not subject to judicial review. Udd v. Massanari, 245 F.3d 1096, 9 1098 99 (9th Cir. 2001)) (citing Califano v. Sanders, 430 U.S. 99, 10 11 107 09 (1977)). This general rule is subject to an exception, however, where the 12 claimant 13 violation that implicates a due process right either to a meaningful 14 opportunity to be heard or to seek reconsideration of an adverse 15 benefits determination. Udd, 245 F.3d at 1099 (citing Sanders, 430 U.S. 16 at 109; Evans v. Chater, 110 F.3d 1480, 1483 (9th Cir. 1997)). A 17 colorable 18 insubstantial, immaterial, or frivolous. Udd, 245 F.3d at 1099. As the 19 Supreme 20 [c]onstitutional questions obviously are unsuited to resolution in 21 administrative hearing procedures, and therefore, access to the courts 22 is essential to the decision of such questions. Sanders, 430 U.S. at 23 109. However, the mere allegation of a due process violation does not 24 assure that the claim is colorable. See Hoye v. Sullivan, 985 F.2d 990, 25 992 (9th Cir. 1992) (per curiam). 26 The raises a colorable constitutional Court cases has in constitutional claim explained, which is this claimants one claim that exception have of due is not exists asserted a process wholly because colorable 27 constitutional claim sufficient to permit judicial review and allow the 28 reopening of an unfavorable decision generally involve allegations by 4 1 the claimant that, at the time of the adverse ruling, the claimant 2 suffered from a mental impairment which prevented the making of a 3 timely request for review of an adverse determination and that he was 4 not represented by counsel in that proceeding. See, e.g., Evans, 110 5 F.3d at 1483 (citing SSR 91-5p); Udd, 245 F.3d at 1099. 6 7 III. Discussion 8 The Commissioner contends that Plaintiff s factual assertion that 9 he timely filed his request for review with the Appeals Council in 10 September 2003 does not set forth a colorable constitutional claim. 11 (Joint Stip. at 19.) In the alternative, the Commissioner contends that 12 the Appeals Council reasonably determined that Plaintiff s proffered 13 documentary evidence did not provide clear proof that he in fact 14 timely faxed his request for review to the Appeals Council. (Id. at 20.) 15 Defendant s first argument is dispositive. 16 It is axiomatic that due process requires that a claimant receive 17 meaningful notice and an opportunity to be heard before his claim for 18 disability benefits may be denied. Udd, 245 F.3d at 1099 (citing 19 Mathews v. Eldridge, 424 U.S. 319, 333 (1976)). Here, Plaintiff received 20 meaningful notice and an opportunity to be heard with respect to his 21 request to reopen the application. The Appeals Council received and 22 considered Plaintiff s proffered documentation on more than one occasion 23 and concluded that it did not provide sufficient proof that Plaintiff 24 had timely filed his request for review. This is all the process to 25 which Plaintiff is due. See, e.g., Efinchuk v. Astrue, 480 F.3d 846, 26 848-49 (8th Cir. 2007) (where claimant was represented by counsel and 27 evidence was received and considered, decision not to reopen did not 28 violate claimant s due process rights); Blacha v. Sec. of Health & Hum. 5 1 Services, 927 F.2d 228, 232 (6th Cir. 1990) (same). 2 Plaintiff was represented by counsel at all times and he has not 3 alleged that he suffered from any mental impairment which prevented him 4 from making a timely request for review, unlike the claimants in Evans 5 and Udd. He has had a fair opportunity to be heard on the issues of 6 whether 7 application should be reopened. This meets the minimal requirements of 8 procedural due process. Disagreement with the merits of an adverse 9 decision on a request to reopen, even if the decision is subject to 10 debate as this one certainly is, does not implicate the Due Process 11 Clause. 12 the request for review was timely filed and whether the Plaintiff has failed to raise a colorable due process claim which 13 would give rise to an exception to the general rule that 14 Commissioner s decision not to reopen a prior claim is not subject to 15 judicial review, and therefore this Court lacks jurisdiction to consider 16 Plaintiff s claim. Accordingly, Defendant s motion to dismiss for lack 17 of subject matter jurisdiction is GRANTED. 18 19 DATED: February 29, 2012 20 21 22 23 ______________________________ Marc L. Goldman United States Magistrate Judge 24 25 26 27 28 6 the
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
