(SS) Craig vs Commissioner of Social Security, No. 2:2008cv02676 - Document 30 (E.D. Cal. 2010)
Court Description: ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Kimberly J. Mueller on 3/28/10 ORDERING that defendant's motion to strike 27 is denied; and RECOMMENDING that Defendant's motion to dismiss for lack of subject matter jurisdiction 22 be granted; and this action be dismissed. Objections due within 14 days after being served with these findings and recommendations. (Becknal, R)
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(SS) Craig vs Commissioner of Social Security Doc. 30 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 RAYMOND CRAIG, 11 Plaintiff, 12 No. CIV S-08-2676 WBS KJM vs. 13 14 MICHAEL J. ASTRUE, Commissioner of Social Security, 15 ORDER AND Defendant. 16 FINDINGS AND RECOMMENDATIONS / 17 Plaintiff seeks judicial review of a final decision of the Commissioner of Social 18 Security (“Commissioner”) denying an application for Disability Insurance Benefits (“DIB”) 19 under Title II of the Social Security Act (“Act”). Defendant moves to dismiss under Federal Rule 20 of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction.1 For the reasons discussed 21 below, the court recommends defendant’s motion to dismiss be granted. 22 ///// 23 ///// 24 25 26 1 In the alternative, defendant moves to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. Because the court concludes subject matter jurisdiction is lacking, defendant’s alternative ground is moot. 1 Dockets.Justia.com 1 I. Factual and Procedural Background 2 In a decision dated April 11, 2008, the Administrative Law Judge (ALJ) issued an 3 order dismissing plaintiff’s request for hearing on the basis of res judicata. Gould Decl., Ex. 6.2 4 The ALJ found that plaintiff’s insured status expired on June 30, 1978; plaintiff had previously 5 applied for a period of disability alleging disability beginning February 1, 1973; the prior 6 application was denied in a decision dated January 14, 1993; there was no basis for reopening the 7 prior determination; and the prior decision was final and binding. Id. The Appeals Council 8 denied plaintiff’s request for review on October 16, 2008. Id., Ex. 8. Defendant moves to 9 dismiss, contending this court lacks subject matter jurisdiction over the decision not to reopen the 10 prior decision. Plaintiff contends he lacked the mental capacity to understand the appeal 11 procedures and was not given adequate notice of those procedures sufficient to comport with due 12 process. 13 II. Standard of Review 14 The party seeking to invoke the jurisdiction of the federal court has the burden of 15 establishing that jurisdiction exists. Assoc. of Medical Colleges v. United States, 217 F.3d 770, 16 778-79 (9th Cir. 2000). A Rule 12(b)(1) motion to dismiss for lack of jurisdiction may be either 17 facial, where the inquiry is confined to the allegations in the complaint, or factual, where the 18 court is permitted to look beyond the complaint to extrinsic evidence. Wolfe v. Strankman, 392 19 F.3d 358, 362 (9th Cir. 2004). When the motion constitutes a factual attack, “no presumptive 20 truthfulness attaches to plaintiff's allegations, and the existence of disputed material facts will not 21 preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Thornhill 22 Publ’g Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir.1979). Where the 23 jurisdictional issue is separable from the merits of the case, the district court may hear evidence 24 2 25 26 Because defendant has brought a “speaking” motion attacking the factual basis for subject matter jurisdiction, the court has considered the extrinsic evidence submitted by defendant. See Thornhill Publ’g Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 730, 733 (9th Cir. 1979). 2 1 regarding jurisdiction and rule on that issue prior to trial, resolving factual disputes where 2 necessary. Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). 3 III. Analysis 4 A. Mental Impairment 5 Plaintiff contends he lacked the mental capacity to understand the procedures for 6 appealing the prior decision of nondisability and is therefore entitled to reopen that claim under 7 Social Security Ruling (“SSR”) 91-5p.3 The court ordinarily does not have jurisdiction to review 8 a decision of the Commissioner declining to reopen a prior final benefits decision because a 9 decision not to reopen a prior benefits decision is discretionary and therefore not a final decision. 10 “[A]n exception exists ‘where the . . . denial of a petition to reopen is challenged on 11 constitutional grounds.’” Udd v. Massanari, 245 F.3d 1096, 1098-99 (9th Cir. 2001) (quoting 12 Califano v. Sanders, 430 U.S. 99, 107-09, (1977)). “Thus, under certain circumstances, courts 13 may waive a litigant’s failure to challenge a ‘final decision’ with regard to a constitutional 14 claim.” Rivera v. Railroad Retirement Bd., 262 F.3d 1005, 1014 (9th Cir. 2001). Nevertheless, 15 conclusory allegations are not sufficient and do not rise to the level of a “colorable constitutional 16 claim” supporting federal subject matter jurisdiction to review the Commissioner’s refusal to 17 reopen. Udd v. Massanari, 245 F.3d at 1098. A mental impairment justifies failure to request 18 review “when the evidence establishes that [plaintiff] lacked the mental capacity to understand 19 the procedures for requesting review.” SSR 91-5p; see Klemm v. Astrue, 543 F.3d 1139, 1145 20 (9th Cir. 2008) (allegations of mental impairment under SSR 91-5p may raise colorable due 21 process claim). 22 ///// 23 3 24 25 26 Social Security Rulings “represent precedent final opinions and orders and statements of policy and interpretations that we have adopted.” 20 C.F.R. § 402.35(b)(1). Social Security Rulings are “binding on all components of the Social Security Administration.” Heckler v. Edwards, 465 U.S. 870, 873 n.3 (1984); cf. Silveira v. Apfel, 204 F.3d 1257, 1260 (9th Cir. 2000) (“This court defer[s] to Social Security Rulings ... unless they are plainly erroneous or inconsistent with the Act or regulations”). 3 1 At issue here is whether plaintiff lacked the mental capacity to understand the 2 procedures for requesting review of the 1993 decision, which was given res judicata effect by the 3 ALJ.4 Plaintiff notes he was not represented by counsel in 1993, and has submitted extrinsic 4 evidence in support of his claim that he suffered a mental impairment at the time of the 1993 5 decision. See Opp’n at 8-9; Ragnes Decl., Exs. AG-AR. Defendant moves to strike plaintiff’s 6 evidence. Because defendant attacks the factual basis for subject matter jurisdiction, the court 7 has considered plaintiff’s evidence in reaching its recommendation on the motion to dismiss and 8 will deny the motion to strike. 9 SSR 91-5p notes four limitations that may establish good cause for failing to 10 timely request review, i.e., whether plaintiff had any physical, mental, educational, or linguistic 11 limitations at the time the request needed to be made. Plaintiff advances no physical, 12 educational, or linguistic limitations but contends his mental condition justifies good cause for 13 failing to appeal the prior determination of nondisability. Plaintiff’s additional evidence, 14 however, fails to establish plaintiff lacked the mental capacity to understand the appeal 15 procedures in 1993. Moreover, the ALJ considered findings from a 1982 psychiatric evaluation, 16 which found plaintiff’s mental status to be within normal limits, and an assessment in 2005 when 17 plaintiff was assessed with having only mild symptoms of depression. Gould Decl., Ex. 6 18 (Order) at 2. The ALJ also considered plaintiff’s activities directing an organization that 19 counseled individuals with mental impairments as inconsistent with plaintiff’s claimed 20 incapacity. Id. Plaintiff’s evidence is consistent with the ALJ’s findings. Plaintiff has failed to 21 raise a colorable due process claim based on mental impairment. 22 ///// 23 ///// 24 4 25 26 In the opposition, plaintiff argues he is entitled to reopen applications made in 1973 and 1985. Those applications are not properly before this court in that the decision of the ALJ at issue in this matter addressed only the 1993 determination of nondisability. See Gould Decl., Ex. 6 (Order) at 1-2. 4 1 B. Notice of Appeal Procedures 2 Plaintiff further asserts he is entitled to reopen the prior decision under 3 Acquiescence Ruling (“AR”) 92-7(9) because the notice explaining plaintiff’s rights was 4 constitutionally deficient. See Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir. 1990). 5 Plaintiff concedes in the opposition that the notice given with the 1993 decision passes 6 constitutional muster but contends the notice from an earlier 1973 determination violated his due 7 process rights. As noted above, the ALJ did not make a determination regarding reopening of a 8 1973 decision and that issue is not properly before the court. Under these circumstances, 9 plaintiff’s claim of a violation of procedural due process cannot be sustained. 10 11 This court does not have federal subject matter jurisdiction to review the Commissioner’s discretionary denial of plaintiff’s request to reopen his prior claim. 12 13 Accordingly, IT IS HEREBY ORDERED that defendant’s motion to strike (docket no. 27) is denied; and 14 IT IS HEREBY RECOMMENDED that: 15 1. Defendant’s motion to dismiss for lack of subject matter jurisdiction (docket 16 no. 22) be granted; and 17 2. This action be dismissed. 18 These findings and recommendations are submitted to the United States District 19 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 20 fourteen days after being served with these findings and recommendations, any party may file 21 written objections with the court and serve a copy on all parties. Such a document should be 22 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the 23 objections shall be served and filed within seven days after service of the objections. The parties 24 ///// 25 ///// 26 ///// 5 1 are advised that failure to file objections within the specified time may waive the right to appeal 2 the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: March 28, 2010. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 6
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