Molitoris v Astrue, No. 4:2007cv00432 - Document 17 (D. Ariz. 2009)
Court Description: ORDER granting 8 Motion to Dismiss Case for Lack of Jurisdiction; adopting in part and denying in part 13 Report and Recommendations. This matter is DISMISSED for lack of subject matter jurisdiction. Clerk of the Court shall enter judgment and shall then close its file. ***SEE ATTACHED PDF FOR COMPLETE INFORMATION***. Signed by Judge Cindy K Jorgenson on 5/7/09.(LSI, )
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Molitoris v Astrue Doc. 17 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 GEORGE R. MOLITORIS, Plaintiff, 10 11 vs. 12 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 13 14 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CIV 07-432-TUC-CKJ ORDER 15 On February 19, 2009, Magistrate Judge Hector C. Estrada issued a Report and 16 Recommendation [Doc. # 13] in which he recommended that Defendant’s Motion to Dismiss 17 Case for Lack of Jurisdiction [Doc. # 8] be denied and this matter be remanded to the 18 Commissioner for further proceedings with regard to Plaintiff’s 2005 claim. On March 5, 19 2009, Defendant filed Objections to the Report and Recommendation [Doc. # 14]. On March 20 9, 2009, Plaintiff filed a Motion to Strike and Response to Defendant’s Objections to the 21 Magistrate Judge’s Report and Recommendation [Doc. # 15]. 22 23 Procedural Background 24 Plaintiff George Molitoris ("Molitoris") protectively filed an application for Social 25 Security Disability Insurance Benefits (“DIB”) on June 19, 2003. He asserted that his onset 26 of disability was April 1, 2001. Molitoris’ date of last insured was June 30, 2003. Molitoris’ 27 application was denied on August 15, 2003, and, upon reconsideration, on December 3, 2003. 28 Dockets.Justia.com 1 In March of 2004, Molitoris requested a hearing before the Administrative Law Judge (“the 2 ALJ”). On June 4, 2004, the ALJ dismissed Molitoris’ Request for Hearing because it was 3 untimely. Molitoris did not appeal this dismissal. 4 On April 7, 2005, Molitoris applied for Supplemental Security Income (“SSI”) 5 benefits alleging inability to work since April 1, 2001. Molitoris’ claim was allowed on 6 January 15, 2006. Molitoris requested a hearing to review the onset date. The ALJ 7 dismissed Molitoris’ request for a hearing and determined that the final determination on 8 Molitoris’ prior application would not be reopened based on the doctrine of res judicata. The 9 Social Security Appeals Council denied Molitoris’ request for review. 10 On August 28, 2007, Molitoris filed his Complaint in this matter. Molitoris asserts 11 that the ALJ and the Appeals Council erred in finding that Molitoris cannot reopen the 12 determination made on a prior application. 13 On November 26, 2007, Defendant filed a Motion to Dismiss Pursuant to FRCP 14 12(c)(1) [Doc. # 8]. Defendant argues that this Court has no jurisdiction under 42 U.S.C. § 15 405(g) to review any action of the Commissioner unless there has been a final decision made 16 after a hearing. Defendant further argues that the Commissioner’s decision not to reopen a 17 prior claim is not reviewable absent a legitimate constitutional challenge. Because a final 18 decision after a hearing was not issued and Molitoris has not claimed a legitimate 19 constitutional challenge, Defendant argues this matter must be dismissed. 20 Molitoris filed his response on January 27, 2008. Molitoris argues that the ALJ has 21 de facto reopened the case and, therefore, res judicata is waived. Molitoris further argues 22 that this Court can determine as a threshhold whether res judicata is proper in this case. 23 Molitoris also argues that this case poses a constitutional issue because the government failed 24 in its duty to inquire by violating three of its own rulings. Molitoris also argues that remand 25 is required as a matter of law because new material evidence that relates to the period on or 26 before the date of the ALJ’s decision is presented in this case. 27 28 -2- 1 Motion to Strike 2 Plaintiff requests this Court to strike Defendant’s objections as untimely. Defendant 3 filed his Objections on March 5, 2009. As the magistrate judge advised the parties, written 4 objections to the Report and Recommendation were to be filed within ten days after being 5 served with a copy of the Report and Recommendation. 28 U.S.C. § 636(b). Because 6 weekends are not counted in computing a deadline, Fed.R.Civ.P. 6(a)(2), and three days are 7 added for service, Fed.R.Civ.P. 5(b)(2)(E), Fed.R.Civ.P. 6(d), and 8 Fed.Proc., L.Ed. § 8 20:208 (2008), objections to the Report and Recommendation were to be filed on or before 9 March 10, 2009. The Court finds Defendant’s objection was timely filed; the Motion to 10 Strike will be denied.1 11 12 Report and Recommendation – Motion to Dismiss 13 The Magistrate Judge determined that the Commissioner’s decision not to reopen a 14 claim for social security benefits is discretionary and not considered a final decision within 15 the meaning of section 405(g). Krumpelman v. Heckler, 767 F.2d 586, 588 (9th Cir. 1982). 16 Indeed, 42 U.S.C. § 405(g) is the exclusive means for judicial review of the Commissioner’s 17 determinations regarding disability insurance benefits. Weinberger v. Salfi, 422 U.S. 749, 18 857 (1975). Neither party has objected to this determination. 19 The Magistrate Judge also determined that the Commissioner may dismiss a request 20 for hearing if the ALJ decides that res judicata applies. 20 C.F.R. § 404.957(c)(1). The 21 Commissioner, however, may decide to reopen a final binding decision within four years of 22 the initial determination if there is good cause to do so. 20 C.F.R. §§ 404.987-404.989. The 23 Magistrate Judge determined that a “clear reading of the ALJ’s decision shows that no de- 24 facto reopening occurred in this case.” Report and Recommendation, p. 9. The Magistrate 25 26 1 27 The Court notes, however, that the Commissioner’s Response to the Motion to Strike was not timely filed; the Court will not consider the Response. 28 -3- 1 Judge also determined that district courts “have no jurisdiction to review a refusal to re-open 2 a claim for disability benefits or a determination that such claim is res judicata.” Report and 3 Recommendation, p. 10, citing Krumpelman, 767 F.2d at 588. Neither party has objected to 4 these determinations. 5 The Magistrate Judge also determined that the Ninth Circuit recognizes that res 6 judicata is to be “applied less rigidly to administrative proceedings than to judicial 7 proceedings.” Report and Recommendation, p. 10, citing Chavez v. Bowen, 844 F.2d 691, 8 693 (9th Cir. 1988). The Magistrate Judge then determined, pursuant to Thompson v. 9 Schweiker, 665 F.2dd 936 (9th Cir. 1982), that where the record is inadequate to support the 10 findings of the ALJ, application of res judicata constitutes a denial of due process. Report 11 and Recommendation, p. 11. The Magistrate Judge determined that “it is unclear on this 12 record how the ALJ could have determined that Plaintiff’s 2005 application involved the 13 ‘same facts and . . . the same issues which were decided in the final binding determination 14 dated August 18, 2003, made on the prior application.’” Report and Recommendation, p. 13. 15 Defendant objects to these determinations. Molitoris asserts, however, that the Magistrate 16 Judge was correct in determining that res judicata does not apply because Molitoris’ 17 condition has materially changed since resolution of the earlier claim. Molitoris also asserts 18 that Defendant makes arguments that should have been raised and brought to the attention 19 of the magistrate long ago. 20 As to Molitoris’ claim that Defendant is making arguments that should have been 21 raised long ago, the Court notes that Defendant did argue that the Court did not have subject 22 matter jurisdiction in the Motion to Dismiss. 23 Commissioner’s decision not to reopen a prior claim is not reviewable absent a legitimate 24 constitutional challenge. Moreover, lack of subject matter jurisdiction may be raised at any 25 time. See Fed.R.Civ.P. 12(h)(3). Further, a district court can raise the issue on its own 26 accord. Id. Federal courts are always “under an independent obligation to examine their own 27 jurisdiction,” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 28 -4- Indeed, Defendant argued that the 1 603 (1990), and a federal court may not entertain an action over which it has no jurisdiction. 2 See Insurance Corp. Of Ireland, Ltd. v. Campagnie des Bauxites de Guinee, 456 U.S. 694, 3 701, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982); see also Magana v. Commonwealth of N. 4 Mariana Islands, 107 F.3d 1436, 1443 (9th Cir. 1997). The Court finds Defendant has not 5 waived its arguments challenging subject matter jurisdiction.2 6 The Magistrate Judge determined that, where the record is inadequate to support the 7 findings of the ALJ, application of res judicata constitutes a denial of due process. Report 8 and Recommendation, p. 11. The Magistrate Judge determined that “it is unclear on this 9 record how the ALJ could have determined that Plaintiff’s 2005 application involved the 10 ‘same facts and . . . the same issues which were decided in the final binding determination 11 dated August 18, 2003, made on the prior application.” Id. at 13. However, the inadequate 12 record in Thompson was the record before the ALJ, not the reviewing court.3 Moreover, the 13 Thompson court specifically stated that its decision did not “involve the issue, discussed in 14 Davis v. Schweiker, decided [on the same day], of whether a claimant whose application is 15 barred by res judicata is entitled to a review of the Secretary’s refusal to reopen the case.” 16 665 F.2d at 941. Rather, once “a decision becomes administratively final, the Secretary’s 17 decision to reopen a claim is purely discretionary. These discretionary decisions are not 18 ‘final’ decisions within the meaning of § 405(g).” Davis v. Schweiker, 665 F.2d 934 (9th Cir. 19 1982). 20 The Court, therefore, does not have jurisdiction of this matter absent a colorable 21 22 23 24 25 26 2 The Court notes, however, that the Commissioner’s assertion that the magistrate judge’s agreement with Plaintiff is incredible is disingenuous considering that some of the Commissioner’s specific arguments relating to subject matter jurisdiction were first raised in his Objections. 3 27 Indeed, the Thompson court discussed the ALJ’s actions in failing to fully develop the record where the claimant was not represented by counsel. 28 -5- 1 constitutional clam.4 Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995). The Ninth Circuit 2 has held that a colorable constitutional claim of a due process violation “implicates a due 3 process right either to a meaningful opportunity to be heard or to seek reconsideration of an 4 adverse benefits determination.” Udd v. Massanari, 245 F.3d 1096, 1099 (9th Cir. 2001), 5 citing Evans v. Chater, 110 F.3d 1480, 1483 (9th Cir. 1997). In Udd, the claimant had 6 alleged that his mental impairment prevented him from understanding the order of 7 termination and complying with regulations to request a timely review of the decision; in 8 Evans, the claimant alleged that he was mentally impaired and was not represented by 9 counsel at the time of the denial. See generally, 4 Soc. Sec. Law & Prac. § 55:21 (2009) 10 (discussing when constitutional issue is present when Commissioner has denied a petition 11 to reopen a claim). 12 Molitoris argues that the failure to reopen an earlier application without a hearing and 13 the failure to conduct an adequate inquiry constitutes a due process violation. In his 14 Response to the Motion to Dismiss, Molitoris asserts that the ALJ should have reopened his 15 first DIB claim in consideration of his first SSI claim.5 Molitoris has not disputed the 16 Commissioner’s assertion that “the earliest month for which [he can receive benefits] is the 17 month following the month [he] filed the application.” 20 C.F.R. § 416.335. According to 18 Molitoris’ Response to the Motion to Dismiss, he filed an application for SSI benefits 19 alleging inability to work since April 1, 2001, on April 7, 2005. The Social Security 20 Administration determined that Molitoris was disabled as of April 20, 2005. Under 20 21 22 23 4 Although Molitoris did not object to the magistrate judge’s failure to address this claim, the Court finds it appropriate, in its independent review, to address this claim. 5 27 To receive DIB pursuant to 42 U.S.C. 423(a)(1), a person must be insured, be under retirement age, have filled out an application for DIB, and be under a disability. To be entitled to SSI under 42 U.S.C. § 1382(a)(1), a person must be disabled, and the income and resources of the individual must be below a specific level. However, the definition of “disability” is virtually identical for a DIB consideration as it is for an SSI consideration. See Penny v. Sullivan, 2 F.3d 953, 955 n. 1 (9th Cir. 1993). 28 -6- 24 25 26 1 C.F.R. § 416.335, therefore, Molitoris cannot receive benefits prior to May 2005. Molitoris’ 2 assertion that he is not seeking review of the denial of the DIB claim, but merely requesting 3 the onset date of the SSI claim be considered fails to acknowledge that the only way 4 Molitoris can receive the relief he requests is to review the original claims.6 Molitoris’ onset 5 date does not change the fact that, pursuant to regulation, Molitoris cannot receive SSI 6 benefits prior to May 2005. Indeed, Molitoris’ claims that the SSA failed to follow its own 7 regulations regarding the onset date and the durational aspect of disability completely ignores 8 the fact that, under 20 C.F.R. § 416.335, such inquiries are not appropriate. Similarly, 9 Molitoris’ new evidence is not “material,” 20 C.F.R. § 404.989(a)(1) under 20 C.F.R. § 10 416.335. Where Molitoris has specifically stated that he is not appealing the “administrative 11 denial of [his] 2003 application and [is] not asking for back pay for that period” but is 12 challenging “the decision of the ALJ in [his] 2006 decision not to accept the DLI as [his] 13 onset of disability[,] Response to Motion to Dismiss, p. 8, Molitoris’ efforts to couch his 14 claim as a colorable constitutional claim must fail. 15 16 The Court finds it does not have subject matter jurisdiction of this matter and dismissal is appropriate. 17 Accordingly, IT IS ORDERED: 18 1. DENIED IN PART. 19 20 2. Defendant’s Motion to Dismiss Case for Lack of Jurisdiction [Doc. # 8] is GRANTED. 21 22 The Report and Recommendation [Doc. # 13] is ADOPTED IN PART AND 3. This matter is DISMISSED for lack of subject matter jurisdiction. 23 24 6 27 The Court notes that Molitoris’ Complaint indicates that Molitoris brought this action for DIB benefits – the Complaint does not mention his claim for SSI benefits. However, Molitoris states that he is “not appealing the administrative denial of 2003, but rather the January 15, 2006 decision finding no disability prior to the DLI of June 30, 2003.” Response to Motion to Dismiss, p. 2. 28 -7- 25 26 1 2 3 4. The Clerk of the Court shall enter judgment and shall then close its file in this matter. DATED this 7th day of May, 2009. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8-
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