Rohr v. Astrue, No. 3:2012cv05488 - Document 14 (W.D. Wash. 2012)
Court Description: ORDER granting 10 Motion to Dismiss by Judge J Richard Creatura.(SH)
Download PDF
<![CDATA[
Rohr v. Astrue Doc. 14 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 8 9 10 11 BRENDA L. ROHR, now know as BRENDA L. GILLETTE, Plaintiff, 12 13 14 v. CASE NO. 12cv5488JRC ORDER GRANTING DEFENDANT’S MOTION TO DISMISS MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. 16 17 This Court has jurisdiction to decide this Motion pursuant to 28 U.S.C. § 636(c), 18 Fed. R. Civ. P. 73 and Local Magistrate Judge Rule MJR 13 (see also Notice of Initial 19 20 Assignment to a U.S. Magistrate Judge and Consent Form, ECF No. 5; Consent to Proceed Before a United States Magistrate Judge, ECF No. 6). 21 This matter is before the Court on defendant’s Motion to Dismiss for lack of 22 subject matter jurisdiction (see ECF No. 10; see also Declaration of Robert Weigel, ECF 23 24 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS - 1 Dockets.Justia.com 1 No. 11). Plaintiff has filed a Response (see ECF No. 12; see also Affidavit of Jeanette 2 Laffoon, ECF No. 13). 3 4 5 Because plaintiff failed to exhaust her administrative remedies, this Court does not have jurisdiction pursuant to statute to hear this matter. The Court also does not have statutory jurisdiction to review the ALJ’s application of res judicata to plaintiff’s third 6 application for social security disability benefits. In addition, plaintiff has not raised a 7 colorable constitutional claim to overcome this Court’s lack of statutory jurisdiction to 8 9 10 hear this matter. A claimant may not correct a failure to exhaust administrative remedies by filing 11 the same claim again and again. Therefore, defendant’s Motion to Dismiss is granted. 12 13 BACKGROUND and PROCEDURAL HISTORY Plaintiff filed an application for disability benefits pursuant to Title II of the Social 14 Security Act in June, 2004, which was denied initially (see ECF No. 11, pp. 2-3). There is 15 no evidence to suggest that plaintiff appealed the initial denial of this claim (see id.; see 16 also ECF No. 13, p. 2). 17 18 Plaintiff filed another application for disability benefits in November, 2006, which was denied in January, 2007 (see ECF No. 11, p. 3, 20, 21-23). There is no evidence to 19 suggest that plaintiff appealed the initial denial of this claim (see ECF No. 11, p. 3; see 20 also ECF No. 13, p. 2). 21 22 23 Plaintiff filed a third application for disability benefits on March 14, 2009, alleging the same onset date of disability as in the previous application (id.). This third 24 application was denied initially on April 13, 2009 and following reconsideration on ORDER GRANTING DEFENDANT’S MOTION TO DISMISS - 2 1 September 1, 2009 (see id., pp. 3, 6-11, 19). Plaintiff filed a request for a hearing; 2 however, an Administrative Law Judge (“the ALJ”) dismissed her request based on a 3 finding that plaintiff’s insured status for disability benefits expired prior to the previous 4 5 determination on plaintiff’s second application, and based on her conclusion that plaintiff’s rights regarding her third application for disability benefits were “on the same 6 facts and on the same issues” as those regarding her second application for disability 7 benefits (see ECF No. 11, p. 31). Therefore, plaintiff did not receive a hearing (see id.). 8 9 10 On April 16, 2012, the Appeals Council denied plaintiff’s request for review of the ALJ’s decision (see ECF No. 11, p. 24-25). In June, 2012, plaintiff filed a complaint in 11 this Court (see ECF Nos. 1, 3). On August 13, 2012, defendant filed a motion to dismiss 12 this matter on the basis of lack of subject matter jurisdiction (see ECF No. 10; see also 13 ECF No. 11). Plaintiff filed her response on August 22, 2012 (see ECF Nos. 12, 13). 14 15 STANDARD OF REVIEW Federal courts have limited jurisdiction and “possess only that power authorized 16 by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 17 18 375, 377 (1994) (citations omitted). When presented with a motion to dismiss for lack of subject matter jurisdiction, a plaintiff has the burden to demonstrate that this Court has 19 jurisdiction. Kokkonen, supra, 511 U.S. at 377 (citation omitted); see also Fed. R. Civ. P. 20 12(b)(1). 21 22 23 Here, where defendant has challenged the Court’s subject matter jurisdiction, defendant can “rely on affidavits or any other evidence properly before the Court.” St. 24 Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989) (citations omitted). Given that ORDER GRANTING DEFENDANT’S MOTION TO DISMISS - 3 1 circumstance, plaintiff may “present affidavits or any other evidence necessary to satisfy 2 [the] burden of establishing that the Court, in fact, possesses subject matter jurisdiction.” 3 Id. As stated by the Ninth Circuit, the Court “obviously does not abuse its discretion by 4 5 looking to this extra-pleading material in deciding the issue, even if it becomes necessary to resolve factual disputes.” Id. (citing Thornhill Publishing Co. v. General Tel. & Elec. 6 Corp., 594 F.2d 730, 733 (9th Cir. 1979)). When presented with a motion to dismiss 7 pursuant to Fed. R. Civ. P. 12(b)(1) for a lack of subject matter jurisdiction, the Court 8 9 10 favorably views “the facts alleged to support jurisdiction.” McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000) (citing Boettcher v. Sec. Health & Human Servs., 759 F.2d 11 719, 720 (9th Cir. 1985)); cf. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555(2007) (to 12 survive a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), 13 “[f]actual allegations must be enough to raise a right to relief above the speculative level 14 on the assumption that all the allegations in the complaint are true” (citations omitted)). 15 This Court has statutory jurisdiction to review “any final decision of the 16 Commissioner of Social Security made after a hearing.” 42 U.S.C. § 405(g). Pursuant to 17 18 the relevant federal regulations, a claimant obtains a judicially reviewable final decision only after completing all of the required steps, including asking for reconsideration of an 19 initial determination, requesting a hearing and requesting review by the Appeals Council. 20 See 20 C.F.R. §§ 404.907, 404.929, 404.967. A claimant seeking judicial review also 21 22 23 must then either receive a decision by the Appeals Council or notice from the Appeals Council that it has denied the claimant’s request for review. 20 C.F.R. §§ 404.981, 24 122.210(a). ORDER GRANTING DEFENDANT’S MOTION TO DISMISS - 4 1 2 DISCUSSION The Court first notes that in making her argument that plaintiff has not exhausted 3 her administrative remedies, plaintiff fails to address the declaration made under penalty 4 5 of perjury by Mr. Robert Weigel that the first two times that plaintiff filed an application for a period of disability, she did not appeal the initial denial of her applications (see ECF 6 No. 11, pp. 2-3; see also ECF No. 12, pp. 1-2). Specifically, plaintiff does not contest the 7 facts in the declaration that plaintiff twice failed to appeal the denial of her claim, in June, 8 9 10 2004 and January, 2007. It appears that plaintiff’s second application was denied almost two years after expiration of plaintiff’s insured status. Additionally, the Court notes that 11 plaintiff does not allege that defendant failed to provide her with notice of the denial at 12 the initial level of her first two applications. 13 This failure by plaintiff is important, because if plaintiff had appealed the initial 14 denial of her claim, pursuant to the Social Security regulations, her claim would have 15 been reconsidered. If her claim had been denied following reconsideration, plaintiff 16 would have been provided the opportunity to request a hearing. As plaintiff failed to 17 18 appeal the initial denial of her claim (for the first two of her applications), she failed to exhaust her administrative remedies. Therefore, the reason that plaintiff was not afforded 19 a hearing, ultimately, was because she twice failed to request one. It is clear that the 20 failure of the Administration to provide plaintiff with a hearing on her first two 21 22 applications when she failed to request one, was proper. 23 24 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS - 5 1 Plaintiff admits that she did not have any hearing on any of her applications for 2 disability benefits, and the Court already has noted its statutory jurisdiction only to 3 review “any final decision of the Commissioner of Social Security made after a hearing.” 4 5 42 U.S.C. § 405(g). Therefore, this Court does not have statutory jurisdiction over this matter. See id. 6 However, a discretionary decision by the Commissioner that is not a final decision 7 made after a hearing may be subject to an exception where the Commissioner’s decision 8 9 10 “is challenged on constitutional grounds.” Evans v. Chater, 110 F.3d 1480, 1482 (9th Cir. 1997) (citing Califano v. Sanders, 430 U.S. 99, 109 (1977)); 42 U.S.C. § 405(g). The 11 Ninth Circuit has “held that ‘the Sanders exception applies to any colorable constitutional 12 claim of Due Process violation that implicates a Due Process right either to a meaningful 13 opportunity to be heard or to seek reconsideration of an adverse benefits determination.’” 14 Udd v. Massanari, 245 F.3d 1096, 1099 (9th Cir. 2001) (quoting Evans, supra, 110 F.3d 15 at 1483); see also Sanders, supra, 430 U.S. at 107-09. According to the Ninth Circuit, a 16 “challenge that is not ‘wholly insubstantial, immaterial, or frivolous’ raises a colorable 17 18 constitutional claim.” Udd, supra, 245 F.3d at 1099 (quoting Boettcher v. Sec. of Health & Human Serv., 59 F.2d 719, 722 (9th Cir. 1985)). 19 As stated by the Supreme Court, “[c]onstitutional questions obviously are unsuited 20 to resolution in administrative hearing procedures and, therefore, access to the courts is 21 22 23 essential to the decision of such questions.” Sanders, supra, 430 U.S. at 109. The Court noted the “well-established principle that when constitutional questions are in issue, the 24 availability of judicial review is presumed.” Id. (citations omitted). ORDER GRANTING DEFENDANT’S MOTION TO DISMISS - 6 1 Because an individual’s interest in social security benefits is a property interest 2 created by statute and protected by the Fifth Amendment, if plaintiff here has raised 3 properly a Due Process claim with respect to the denial of such benefits, this Court has 4 5 jurisdiction over this matter, despite the lack of jurisdiction pursuant to statute. See Sanders, supra, 430 U.S. at 109; Mathews v. Eldridge, 424 U.S. 319, 332 (1976); Udd, 6 supra, 245 F.3d at 1099; see also Evans, supra, 110 F.3d at 1483. 7 Here, plaintiff alleges that defendant violated plaintiff’s constitutional right to Due 8 9 10 Process by denying her a hearing (see Response, ECF No. 12, pp. 2-3). Plaintiff contends that it is unfair and not representative of the non-adversarial nature of administrative 11 hearings in Social Security matters (id. at p. 2). According to plaintiff, the Administration 12 must provide plaintiff with a hearing and a review of the records in her file (id. at p. 3). 13 However, as discussed, according to the Ninth Circuit, “‘the Sanders exception 14 applies to any colorable constitutional claim of Due Process violation that implicates a 15 Due Process right either to a meaningful opportunity to be heard or to seek 16 reconsideration of an adverse benefits determination.’” See Udd, supra, 245 F.3d at 1099 17 18 (quoting Evans, supra, 110 F.3d at 1483); see also Sanders, supra, 430 U.S. at 107-09. Here, as noted already, plaintiff has not alleged that defendant did not provide notice of 19 the denial of her claim in her first two applications and plaintiff did not contest the facts 20 presented in defendant’s supporting declaration that plaintiff failed to appeal the denial of 21 22 23 her claim twice, in June, 2004 and January, 2007. Therefore with respect to plaintiff’s claim for a period of disability and disability benefits, as presented in her first two 24 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS - 7 1 applications, plaintiff was provided with notice and an opportunity to be heard. She 2 simply failed to take advantage of these opportunities. 3 4 5 Plaintiff fails to explain adequately how it was a Due Process violation to deny her a hearing on her third application. Due Process requires the opportunity to be heard, it does not require that a claimant be heard after declining two opportunities to pursue her 6 claim to the point at which she could have been heard. 7 The ALJ dismissed plaintiff’s request for a hearing on her third application based 8 9 10 on a finding that plaintiff’s insured status for disability benefits had expired prior to the previous determination on plaintiff’s second application, and based on the ALJ’s 11 conclusion that plaintiff’s rights regarding her application for disability benefits were “on 12 the same facts and on the same issues” as those regarding her second application for 13 disability benefits (see ECF No. 11, p. 31). As a result, the ALJ applied the doctrine of 14 res judicata when making the determination to deny plaintiff a hearing on her third 15 application (see id.). 16 17 18 First, the Court notes that the ALJ’s decision to apply res judicata was not a decision made after a hearing; therefore, this Court is without statutory jurisdiction to review the application of res judicata to plaintiff’s claim. See 42 U.S.C. § 405(g). As 19 stated by the Ninth Circuit, district courts “have no jurisdiction to review a refusal to re20 open a claim for disability benefits or a determination that such a claim is res judicata.” 21 22 23 See Krumpelman v. Heckler, 767 F.2d 586, 588 (9th Cir. 1985) (citing Davis v. Schweiker, 665 F.2d 934, 935 (9th Cir. 1982)); see also Gibb v. Comm’r Soc. Sec., 420 24 Fed. Appx. 767, 768, 2011 U.S. App. LEXIS 4943 at **2 (9th Cir. 2011) (per curiam) ORDER GRANTING DEFENDANT’S MOTION TO DISMISS - 8 1 (unpublished opinion) (citing Krumpelman, supra, 767 F.2d at 588).Therefore, in the 2 context presented here, plaintiff has the burden to demonstrate that this Court has subject 3 matter jurisdiction by demonstrating that the application of res judicata violated Due 4 5 Process. See Kokkonen, supra, 511 U.S. at 377 (citation omitted); see also Fed. R. Civ. P. 12(b)(1). Plaintiff has failed to carry this burden. 6 The Court notes that plaintiff contends that the Court should not allow the findings 7 based on res judicata to stand because res judicata should not be applied when a claimant 8 9 10 is not represented by an attorney. Although plaintiff notes that “there is no evidence that she was represented,” plaintiff does not present any evidence that she was not represented 11 by council and has not alleged that she was pro se (see Response ECF No. 12, p. 4). It is 12 plaintiff’s burden to demonstrate that this Court has subject matter jurisdiction. 13 Kokkonen, supra, 511 U.S. at 377 (citation omitted); see also Fed. R. Civ. P. 12(b)(1). 14 Plaintiff also contends that allowing the application of res judicata on her third 15 application would be manifest injustice because plaintiff has not been afforded a hearing 16 (see Response, ECF No. 12, p. 4). Again, plaintiff completely fails to explain how it is 17 18 unjust to deny plaintiff a hearing on her third application, when she failed to appeal the denial of her two prior applications. 19 Defendant argues that the application of res judicata was proper and notes that 20 plaintiff’s last date insured was March 31, 2005 and that she was required to prove that 21 22 23 she was disabled on or before this date. It is notable that plaintiff does not argue that her third application for disability benefits, filed in March, 2009, was in any way not about 24 her “rights on the same facts and on the same issue or issues” as were presented in her ORDER GRANTING DEFENDANT’S MOTION TO DISMISS - 9 1 second application for disability benefits. Plaintiff concedes that she “filed her ‘new’ 2 claim on March 14, 2009 alleging the same onset date” as her second (November, 2006) 3 application (see Response, ECF No. 12, p. 5). Again, both of these applications were filed 4 5 after her date last insured. Plaintiff has not demonstrated any fault in the important finding by the ALJ that 6 plaintiff’s third application involved plaintiff’s “rights on the same facts and on the same 7 issue or issues” that were presented in her second application (see ECF No. 11, pp. 308 9 10 31). Plaintiff did not receive a hearing on her second application, which involved the same facts and issues as the third application, due to her own failure to appeal the initial 11 denial of this claim. Thus, regarding the application of res judicata to this matter, 12 plaintiff has demonstrated no unfairness. She was afforded appropriate notice and 13 opportunity to be heard and has demonstrated no Due Process violation. 14 Plaintiff’s remaining arguments are not constitutional arguments, but rely on this 15 Court having statutory jurisdiction, which this Court already has determined that it lacks. 16 For example, although plaintiff questions whether or not defendant acted properly by 17 18 failing to provide plaintiff with a complete version of her administrative record, the ability of plaintiff to present this claim to this Court for judicial review depends on 19 statutory jurisdiction (see Response, ECF No. 12, p. 3 (citing 42 U.S.C. § 405(g))). 20 Plaintiff has not alleged that defendant’s failure to supply plaintiff with her administrative 21 22 23 record in this particular instance is a violation of plaintiff’s Due Process rights other than the argument discussed already by this Court regarding the denial of a hearing. Likewise, 24 plaintiff’s claim that defendant failed to abide by the Administration’s own regulations ORDER GRANTING DEFENDANT’S MOTION TO DISMISS - 10 1 when applying res judicata to her third application is based on statute and federal 2 regulation as opposed to constitutional Due Process grounds (see Response, ECF No. 12, 3 pp. 4-5). 4 5 Similarly, although plaintiff argues that the prior 2007 denial of her claim following her second application can be reopened for good cause, there is no allegation 6 that the failure to do so violated Due Process. According to the Supreme Court, “an 7 interpretation that would allow a claimant judicial review simply by filing - and being 8 9 10 denied - a petition to reopen his claim would frustrate the congressional purpose, plainly evidenced in § 205(g) [of the Social Security Act], to impose a 60-day limitation upon 11 judicial review of the Secretary’s final decision on the initial claim for benefits.” Sanders, 12 supra, 430 U.S. at 108 (citing 20 C.F.R. § 404.951 (1976)). Accordingly, it is the duty of 13 the Court to respect the determination by Congress “to limit judicial review to the 14 original decision denying benefits [a]s a policy choice obviously designed to forestall 15 repetitive or belated litigation of stale eligibility claims.” See id. Based on a review of the 16 relevant record, the Court concludes that this duty is applicable here. 17 18 CONCLUSION Plaintiff had notice of the initial denial of her second application for disability 19 benefits, yet she failed to avail herself of the opportunity to appeal her claim for 20 disability. Thus, she was denied a hearing on her third application, which involved the 21 22 23 same disability claim as her second application, on the basis of res judicata. Plaintiff has not demonstrated that she was denied a meaningful opportunity to be heard on her claim 24 for disability. ORDER GRANTING DEFENDANT’S MOTION TO DISMISS - 11 1 Based on these reasons and the relevant record, the Court ORDERS that 2 defendant’s Motion to Dismiss is GRANTED. 3 JUDGMENT is for DEFENDANT and the case should be closed. 4 5 Dated this 26th day of September, 2012. 6 7 A 8 J. Richard Creatura United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 ORDER GRANTING DEFENDANT’S MOTION TO DISMISS - 12
]]>
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.
