Greta Reafsnyder v. Commissioner of Social Security Administration, No. 8:2011cv00659 - Document 13 (C.D. Cal. 2011)
Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle, IT IS ORDERED that: 1. The motion to dismiss is GRANTED. 2. This action is DISMISSED. 3. The Clerk of the Court shall serve this Decision and Order and the Judgment herein on all parties or counsel. (SEE ORDER FOR FURTHER DETAILS) (lmh)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 12 GRETA REAFSNYDER, 13 Plaintiff, v. 14 15 MICHAEL J. ASTRUE, Commissioner, Social Security Administration, 16 Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) No. SACV 11-659-CW DECISION AND ORDER The parties have consented, under 28 U.S.C. § 636(c), to the 19 jurisdiction of the undersigned Magistrate Judge. 20 review of the Commissioner s denial of disability benefits. 21 has moved to dismiss the complaint for lack of jurisdiction due to 22 failure to exhaust administrative remedies under Fed. R. Civ. P. 23 12(b)(1). 24 Plaintiff seeks Defendant For the reasons discussed below, the motion is GRANTED. I. BACKGROUND 25 The relevant facts are not in dispute. 26 On July 29, 2008, Plaintiff filed a claim for supplemental 27 security income ("SSI") and disability insurance benefits ("DIB") 28 alleging disability since July 23, 2004. 1 Her claims were denied 1 initially, and Plaintiff then filed a timely request for 2 reconsideration. [Motion to Dismiss, ( MTD ), Declaration of Yolanda 3 Vargas ("Vargas Decla") at 2.] 4 On August 28, 2009, the reconsideration request was denied, and, 5 according to the electronic case processing system of the Office of 6 Disability Adjudication and Review ("ODAR"), a copy was mailed to both 7 Plaintiff and her attorney.1 [Id. at 3.] The denial notice gave 8 Plaintiff sixty (60) days within which to file a request for an 9 administrative hearing. [Id.] The ODAR electronic case processing 10 system does not show that either copy was returned by the U.S. Postal 11 service as "undeliverable. [Id.] 12 Plaintiff's Request for Hearing was submitted approximately one 13 year after it was due, on about September 28, 2010. [Varga Decla., Ex. 14 2.] Along with the request, Plaintiff submitted declarations from 15 herself and her attorney asserting under penalty of perjury that 16 neither received the notice of the reconsideration determination. 17 [Id.] 18 On November 5, 2010, an Administrative Law Judge ("ALJ") issued a 19 notice of dismissal on the basis that the request for hearing was not 20 filed in a timely manner and that Plaintiff's declarations failed to 21 establish good cause for the late request. [Varga Decla., Ex. 3.] The 22 dismissal noted Plaintiff had the same address since 2005; that she 23 timely responded to most, if not all, prior correspondence; and there 24 was nothing in the record to suggest she had a limitation that would 25 prevent her from making a timely request. [Id.] Furthermore, the ALJ 26 noted that other circumstances weighed against a finding of good 27 1 28 There is no dispute with respect to whether the correct addresses for Plaintiff and her attorney were used. 2 1 cause: Plaintiff abandoned a prior claim for benefits after the 2 initial denial, and she waited an inordinately long time between 3 receiving the initial determination in this case and inquiring about 4 her claim. [Id.] 5 6 Plaintiff requested review of the ALJ's decision. 2011, the Appeals Council denied review. 7 On March 3, [Varga Decla., Ex. 4.] This action followed. In the Complaint, Plaintiff seeks either a 8 finding that she is disabled or a remand for a hearing on the merits 9 of her disability claim on the basis that: the record supports a 10 finding of disability, the good cause finding was in error or, in the 11 alternative, her due process rights were violated by the denial of a 12 hearing. [See Docket no. 1.] 13 II. 14 DISCUSSION Defendant contends this court lacks jurisdiction over the 15 complaint because there has been no "final decision" after a hearing, 16 and Plaintiff has thus failed to exhaust her administrative remedies. 17 Plaintiff essentially urges that the exhaustion requirement should be 18 waived in this case. 19 A. 20 Final Decision Judicial review of the denial of a DIB or SSI benefits claim is 21 authorized and limited by 42 U.S.C. § 405(g), which provides, in 22 relevant part: "Any individual, after any final decision of the 23 Commissioner of Social Security made after a hearing to which [s]he 24 was a party . . . may obtain a review of such decision by a civil 25 action . . . ." 42 U.S.C. § 405(g) (emphasis added); see also Hoye v. 26 Sullivan, 985 F.2d 990, 991 (9th Cir. 1992). 27 decision requirement is an exhaustion requirement, which may be 28 waived. Relevant here, the final Cassim v. Bowen, 824 F.2d 791, 794 (9th Cir. 1987) (citing 3 1 Hironymous v. Bowen, 800 F.3d F.2d 888, 894 (9th Cir. 1986) and 2 Mathews v. Eldridge, 424 U.S. 319, 328-30, 96 S. Ct. 893, 899-900, 47 3 L. Ed. 2d 18 (1976)) (final decision includes two elements: 4 presentment and exhaustion). 5 requirement, there is no other avenue for judicial review of a denial 6 of a claim for benefits. 7 the Commissioner of Social Security shall be reviewed by any person, 8 tribunal, or governmental agency except as herein provided.") 9 Absent waiver of the exhaustion 42 U.S.C. § 405(h) ("No . . . decision of By the terms of the Act, then, a dismissal without a hearing is 10 not a "final decision" subject to judicial review. 11 at 991; Boettcher v. Sec'y of Health and Human Servs., 759 F.2d 719, 12 720-21 (9th Cir. 1985); Bacon v. Sullivan, 969 F.2d 1517 (3rd Cir. 13 1992) (holding that the decision by the Social Security Administration 14 not to consider an untimely request for review is not a "final 15 decision" subject to judicial review); Sheehan v. Sec'y of Health, Ed. 16 & Welfare, 593 F.2d 323, 327 (8th Cir. 1979) ("If claimant may avoid 17 the timely exhaustion of remedies requirement, any claimant could 18 belatedly appeal his claim at any time and always obtain district 19 court review of an ALJ's decision."). 20 See Hoye,985 F.2d Consequently, because the ALJ here dismissed Plaintiff's hearing 21 request as untimely and found no good cause to rebut the presumption 22 that she received notice of the denial of her reconsideration 23 request,2 there is no "final decision," and this court lacks 24 25 26 27 28 2 A request for hearing must be filed within sixty (60) days after the date the claimant receives notice of the previous determination. 20 C.F.R. §§ 404.933(b)(1), 404.901. It is presumed that a claimant received notice within five days of the printed date of the letter, unless the claimant shows otherwise. 20 C.F.R. §§ 404.901, 416.1401. If a hearing is not requested in time, the claimant may ask for an extension of time to request a hearing supported by a 4 1 jurisdiction to consider the complaint, absent a waiver. 2 v. Schweiker, 559 F. Supp. 1371, 1372-73 (C.D. Cal. 1983) (dismissing 3 complaint for lack of jurisdiction where ALJ dismissed hearing request 4 as untimely, found no good cause for extension, and appeals council 5 affirmed); Boettecher v. Sec'y of Health and Human Servs., 759 F.2d at 6 723-24 (finding no waiver after request for hearing dismissed); Scott 7 v. Astrue, 2009 WL 2338085 (D. Or. 2009)(dismissing complaint for lack 8 of jurisdiction when plaintiff asked court to review commissioner's 9 decision that he lacked good cause for untimely request for hearing). 10 11 B. See Burbage Waiver There is a waiver of the exhaustion requirement when a plaintiff 12 makes a claim that is: (1) "collateral to a substantive claim of 13 entitlement (collaterality), (2) colorable in its showing that denial 14 of relief will cause irreparable harm (irreparability), and (3) one 15 whose resolution would not serve the purpose of exhaustion 16 (futility)." Kildare v. Saenz, 325 F.3d 1078, 1082 (9th Cir. 2003). 17 A claim is "collateral" to a claim for benefits when the 18 plaintiff does not ultimately seek a benefits award, but rather 19 challenges the Commissioner's failure to follow applicable 20 regulations. 21 for the plaintiff simply to challenge irregularities in her individual 22 case, id., the complaint must allege a constitutional or statutory Kildare v. Saenz, 325 F.3d at 1082. It is not enough 23 24 25 26 27 28 showing of good cause for missing the deadline. 20 C.F.R. §§ 404.911, 416.1411, 404.933(c), 416.1433(c). An ALJ may dismiss a request for a hearing if the request was not filed within the sixty-five day period and the time period was not extended on a finding of good cause. 20 C.F.R. §§ 404.957(c)(3), 416.1457(c)(3). If a claimant seeks to challenge a dismissal made on this basis, she may then do so by requesting the dismissal be vacated on a showing of good cause made within sixty (60) days of the dismissal. 20 C.F.R. §§ 404.960, 416.1460. 5 1 challenge to a substantive policy of the Social Security 2 Administration, Johnson v. Shalala, 2 F.3d 918, 921 (9th Cir. 1993). 3 Here, the complaint asks the court to find that the ALJ erred in 4 concluding Plaintiff's request for a hearing was untimely and to 5 either: (1) affirmatively find Plaintiff to be disabled or; (2) 6 reverse for a hearing with respect to the merits of her disability 7 claim. 8 Motion to Dismiss at 7 (Conclusion).] 9 allegation that due process was violated because her hearing request [See Complaint (docket no. 7) at 2, 3; see also Opposition to Notwithstanding Plaintiff s 10 was dismissed, at its core this is a quintessential claim for 11 benefits. 12 (holding that plaintiff's claim seeking to overturn a finding that he 13 was ineligible for benefits is "inextricably intertwined" with claim 14 for benefits, and that waiver of exhaustion requirement was thus not 15 warranted). 16 motion to dismiss to seek a hearing limited to the issue of whether 17 there was "good cause" for her untimely request a suggestion she 18 raises only in the body of that pleading [see Opposition to MTD at 3, 19 7] she does not challenge the constitutionality of the 20 Administration's policies as they relate to good cause determinations, 21 or allege that the Administration is failing to follow law or its own 22 policies in making good cause determinations. 23 simply that the ALJ and Appeals Council erred in making findings of 24 fact in her case, a claim that is "entirely dependent on [her] 25 underlying claim[] for benefits." Kildare v. Saenz, 325 F.3d at 1083 26 (holding plaintiffs did not prove collaterality when they alleged a 27 series of irregularities in individual cases). 28 See Hironymous v. Bowen, 800 f.2d 888, 894 (9th Cir. 1986) To the extent Plaintiff purports in her opposition to the Her argument remains With respect to the irreparability requirement, while economic 6 1 2 hardship may constitute irreparable harm, Kildare v. Saenz, 325 F.3d 3 at 1083, other than the conclusory statement that she would suffer an 4 economic loss if she does not receive benefits, Plaintiff makes no 5 allegation of irreparable economic hardship. 6 Plaintiff may file a new application for benefits. [Motion to Dismiss 7 at 6.] 8 from receiving Title II benefits because there might be res judicata 9 effect to a later-filed claim does not suffice to make a "colorable As Defendant points out, Plaintiff's vague statement that she "could be" foreclosed 10 showing of irreparable harm." 11 (finding waiver where plaintiff established colorable claim that 12 because of his physical condition and dependency upon the disability 13 benefits, an erroneous termination would damage him in a way not 14 recompensable through retroactive payments). 15 Mathews v. Eldridge, 424 U.S. at 331 Moreover, Plaintiff s claim of error appears to be without merit. 16 A review of the record reveals the ALJ carefully weighed Plaintiff s 17 claim of good cause against the evidence in the record suggesting she 18 received the denial notice but abandoned her claim as she had 19 abandoned her prior application upon a denial. 20 Exs. 3, 4.] 21 hearing with respect to plaintiff s claim of good cause. See HALLEX I- 22 2-60(D)(1). 23 dismissal and to provide additional evidence to support her good cause 24 contention to the Appeals Council. 25 Plaintiff was thus afforded the opportunity to be heard at a 26 meaningful time and in a meaningful manner, and she does not 27 establish a colorable constitutional claim denial of which could [Vargas Decla. at 3, Under agency policy, the ALJ was not required to hold a Plaintiff had the opportunity to appeal the ALJ s [Vargas Decla. at 3, Ex. 4.] 28 7 1 2 conceivably cause her irreparable harm. 3 Health and Human Servs., 759 F.2d 719, 722 (9th Cir. 1985) (citing 4 Mathews v. Eldridge, 424 U.S. at 333). 5 See Boettcher v. Sec y of Finally, Plaintiff has not established futility. Notwithstanding 6 her use of the words due process in the complaint, Plaintiff does 7 not articulate a constitutional challenge to the policies or practices 8 of the Social Security Administration, thus asserting a constitutional 9 claim that is beyond the experience and the expertise of the Social 10 Security Administration to resolve. 11 749, 765-66, 95 S. Ct. 2457, (1975). 12 Plaintiff seeks an award of benefits, there is no decision for this 13 court to review, and still something to be gained from permitting the 14 compilation of a detailed factual record, or from agency expertise. 15 Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir. 1987)(citing Bowen v. 16 City of New York, 477 U.S. 467, 106 S. Ct. 2022, 2032, 90 L. Ed. 2d 17 462 (1986)). 18 merits or on her good cause claim, the policies underlying exhaustion 19 would not be served by remand. 20 484-85 (exhaustion is not to be excused when a claimant alleges 21 irregularity in the agency s administration of its own regulations, 22 because such errors are fully correctable upon administrative review). 23 In sum, Plaintiff has not established the requisites for a waiver See Weinberger v. Salfi, 422 U.S. Furthermore, to the extent And to the extent she seeks remand for a hearing on the Bowen v. City of New York, 476 U.S. at 24 of the exhaustion requirement, and the court thus lacks jurisdiction 25 to consider her complaint. 26 27 III. ORDERS Accordingly, IT IS ORDERED that: 28 8 1 2 1. The motion to dismiss is GRANTED. 3 2. This action is DISMISSED. 4 3. The Clerk of the Court shall serve this Decision and Order 5 and the Judgment herein on all parties or counsel. 6 7 8 9 DATED: November 2, 2011 ______________________________ CARLA M. WOEHRLE United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
]]>
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.
