United States District Court, D. New Mexico
December 16, 2016
ROSARIO G. RAMIREZ, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
PROPOSED FINDINGS AND RECOMMENDED
GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE
matter comes before the Court on Defendant's Motion to
Dismiss for Lack of Jurisdiction. Doc. 12. For the
reasons discussed below, I recommend that the Court grant
Defendant's motion and dismiss this action.
6, 2013, Plaintiff filed an initial application for
disability insurance benefits. Doc. 12-1 at 7. The
Administrative Law Judge (ALJ) issued an unfavorable decision
on October 16, 2015. Id. at 4. On January 5, 2016,
Plaintiff filed a request for review with the Appeals
Council, and included a statement of good cause for untimely
filing. Id. at 21-22. On February 18, 2016, the
Appeals Council issued an order dismissing Plaintiff's
request for review because her request was untimely.
Id. at 23-25. Plaintiff filed suit in this Court on
April 15, 2016, requesting review of the Appeals
Council's decision. See doc. 1.
21, 2016, Defendant filed a Motion to Dismiss for Lack of
Jurisdiction under Fed.R.Civ.P. 12(b)(1). Doc. 12.
Plaintiff failed to file a response to the motion within
fourteen calendar days after service of the motion, as
required by D.N.M.LR-Civ. 7.4(a). The Court filed its first
Report and Recommendations on August 25, 2016. Doc.
18. On August 29, 2016, Plaintiff filed an unopposed
motion to set aside the Court's Report and
Recommendations, and the Court granted the motion on
September 6, 2016. Docs. 20, 21. Plaintiff then
filed a response to the motion on September 14, 2016.
Doc. 24. Defendant filed its response on September
28, 2016. Doc. 25.
Motions to Dismiss under Rule 12(b)(1)
12(b)(1) motion is the proper avenue to challenge the
court's subject matter jurisdiction, and Rule 12(h)(3)
requires that whenever it appears by suggestion of the
parties or otherwise that the court lacks jurisdiction of the
subject matter, the court shall dismiss the action.”
Barnson v. United States, 531 F.Supp. 614, 617 (D.
Utah 1982) (quotation marks omitted). Such motions may take
one of two forms. First, “a facial attack on the
complaint's allegations as to subject matter jurisdiction
questions the sufficiency of the complaint.” Holt
v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995).
In reviewing motions of this type, “a district court
must accept the allegations in the complaint as true.”
Id. Second, “a party may go beyond allegations
contained in the complaint and challenge facts upon which
subject matter jurisdiction depends.” Id. at
1003. The Tenth Circuit has explained that in evaluating such
factual attacks on subject matter jurisdiction, “a
district court may not presume the truthfulness of the
complaint's factual allegations. A court has wide
discretion to allow affidavits, other documents, and a
limited evidentiary hearing to resolve disputed
jurisdictional facts under Rule 12(b)(1).” Id.
(internal citation omitted).
Motion in this context presents a factual attack, as the
failure to exhaust administrative remedies is a fact upon
which subject matter jurisdiction depends. Baumeister v.
New Mexico Comm'n for the Blind, 425 F.Supp.2d 1250,
1258 (D.N.M. 2006). Plaintiff's defense that she has a
colorable constitutional claim that excepts her from the
exhaustion requirement also requires factual inquiry. See
Brandtner v. Dep't of Health & Human Servs., 150
F.3d 1306, 1307 n.3 (10th Cir. 1998) (noting that there
“may be limited circumstances where an Appeals Council
dismissal of an untimely request for review may be a
‘final' decision of the Secretary, such as when a
plaintiff raises a constitutional claim of a due process
violation, ” as here). Accordingly, this Court reviews
the face of the complaint and any relevant external materials
to determine whether Plaintiff has presented claims within
the Court's jurisdiction, a necessary prerequisite for
adjudication on the merits. Fed.R.Civ.P. 12(b)(1); see
also Steel Co. v. Citizens for a Better Environment, 523
U.S. 83, 94-95 (1998) (holding that lack of subject matter
jurisdiction precludes reaching the merits of a dispute).
motion, Defendant requests that the Court dismiss this action
due to lack of subject matter jurisdiction. Doc. 12
at 2. Under 42 U.S.C. § 405(g), “[a]ny individual,
after any final decision of the Commissioner of Social
Security made after a hearing to which he was a party . . .
may obtain a review of such decision by a civil action . . .
.” However, a party seeking judicial review must first
request review by the Appeals Council by filing a written
request “[w]ithin 60 days after the date [the party]
receive[s] notice of the hearing decision or
dismissal.” 20 C.F.R. §§ 404.968(a)(1),
404.955(b). A party may ask for an extension of time to
request review by the Appeals Council, and such an extension
will be granted if the party shows “good cause for
missing the deadline.” Id. § 404.968(b).
However, the Appeals Council “will dismiss [the]
request for review if [it is not filed] within the stated
period of time and the time for filing has not been
extended.” Id. § 404.971. Under the
federal regulations, the decision of the ALJ is binding on
all parties unless the Appeals Council reviews the case or
denies the request for review and the claimant thereafter
seeks judicial review. Id. § 404.955(a-b).
asks the Court to review the Appeals Council's decision
to dismiss her request for review as untimely. See docs.
1, 24. The ALJ issued his unfavorable decision on
October 16, 2015, explaining that Plaintiff was not disabled
during the relevant time period. Doc. 12-1 at 16.
Under the federal regulations, Plaintiff was required to file
a request for review with the Appeals Council by December 15,
2015. 20 C.F.R. § 404.968(a)(1). However, Plaintiff
failed to file her request until January 5, 2016, which was
twenty-one days after the deadline. Doc. 12-1 at 21.
As the Appeals Council dismissed Plaintiff's request as
untimely, there is no final decision before the Court to
review. Id. at 27; see Brandtner, 150 F.3d
at 1307 (“[W]e have no jurisdiction to review a
decision when the Appeals Council has dismissed an untimely
request for review, because there is no final decision of the
Secretary as required under 42 U.S.C. § 405(g).”).
argues that the Court should waive the exhaustion requirement
because Plaintiff was denied her constitutional right to due
process, as she was confused and did not understand the
appeals process. See generally doc. 24. “A
claimant will establish a mental impairment justifying
failure to request review when the evidence establishes that
he or she lacked the mental capacity to understand the
procedures for requesting review.” Blair v.
Apfel, 229 F.3d 1294, 1295-96 (10th Cir. 2000) (citing
SSR 91-5P, 1991 WL 208067 (July 1, 1991)). Absent a colorable
constitutional claim presented by the claimant, “[t]he
dismissal of a request for Appeals Council review is binding
and not subject to further review.” 20 C.F.R. §
404.972; Nelson v. Sec'y of Health & Human
Servs., 927 F.2d 1109, 1111 (10th Cir. 1990); see
also Califano v. Sanders, 430 U.S. 99, 109 (1977)
(“Constitutional questions obviously are unsuited to
resolution in administrative hearing procedures and,
therefore, access to the courts is essential to the decision
of such questions.”).
a constitutional claim is not colorable “if it is
immaterial and made solely for the purpose of obtaining
jurisdiction or is wholly insubstantial or frivolous.”
Harline v. Drug Enf't Admin., 148 F.3d 1199,
1203 (10th Cir. 1998) (internal citation and alteration
omitted); see also Bell v. Hood, 327 U.S. 678,
682-83 (1946); Koerpel v. Heckler, 797 F.2d 858, 863
(10th Cir. 1986). Additionally, unsupported allegations that
the claimant is suffering from a mental impairment are
insufficient to create a colorable constitutional claim.
See Nelson 927 F.2d at 1111; Stieberger v.
Apfel, 134 F.3d 37, 40-41 (2d Cir. 1997) (“[E]ven
in the context of a claim for disability benefits based on
mental illness, ” a claim “cannot invoke federal
court jurisdiction merely upon a generalized allegation, long
after the fact, that the claimant was too confused to
understand available administrative remedies.”).
Finally, a claimant must demonstrate not only that she
suffered a mental impairment, but must also “show that
the mental impairment eroded her ability to pursue her
claims.” London v. Apfel, 202 F.3d 282, No.
99-1146, 1999 WL 1244475 at *3 (10th Cir. Dec. 20, 1999)
(unpublished table decision).
argues that evidence in the record demonstrates that she was
“suffering limitations that affected her ability to
file her appeal in a timely manner.” Doc. 24
at 2. Specifically, Plaintiff argues that there is evidence
in the record that she has memory and concentration problems,
becomes drowsy due to her medications, and suffers from
fibromyalgia which she alleges commonly causes fatigue and
memory problems. Id. at 2-3. Plaintiff is correct in
noting that the ALJ considered certain pieces of evidence
which support Plaintiff's claim of memory problems.
See doc. 12-1 at 10 (“[Plaintiff] reported
being forgetful and inattentive.”), 11
(“[Plaintiff] testified that she has memory problems
and is unable to concentrate for extended periods.”).
the ALJ noted that despite Plaintiff's claims of memory
and attention problems, “she was working as a bus
driver . . . and was able to perform this job.”
Doc. 12-1 at 10. The ALJ also noted that Plaintiff
“does not allege needing reminders to take medications,
perform tasks, or to attend appointments . . ., [and] is able
to attend and concentrate about one to two hours until she
feels drowsy from her medications.” Id. at 11.
After considering Plaintiff's testimonial evidence, the
ALJ concluded that she “has no more than mild
limitations on her ability to maintain attention and
concentration” and that Plaintiff's “migraine
headaches and depression are non-severe.” Id.
at 11, 10. These findings by the ALJ undermine
Plaintiff's claim of a due process violation. See
Devereaux v. Chater, 78 F.3d 597, No. 95-1196, 1996 WL
98956, at *3 (10th Cir. March 7, 1996) (unpublished table
decision) (no colorable constitutional claim where
“[t]here is no contemporaneous medical evidence
demonstrating mental incompetence, ” even where there
is evidence indicating a claimant “may have had
impaired judgment at times” during the period when he
failed to challenge the denial of his application for social
the ALJ found that Plaintiff “has only mild limitations
on her ability to perform activities of daily living.”
Doc. 12-1 at 10. The ALJ noted that Plaintiff
“reported she is able to perform light household
chores, prepare meals with help, shop in stores, watch
television, read, listen to music, drive a vehicle, handle
her finances and manage bank accounts[, and] attend to her
personal needs” without assistance. Id. As the
evidence demonstrates that Plaintiff has only mild
limitations in concentration and attention and her ability to
perform activities of daily living, she has failed to
demonstrate a due process violation resulting from a mental
impairment. Blair, 229 F.3d at 1296 (citing SSR
91-5P for the proposition that in determining whether
claimant has a mental impairment justifying failure to
request review, it is necessary to “examine ‘any
mental . . . condition which limits the claimant's
ability to do things for him/herself'”);
London, 1999 WL 1244475 at *3 (no due process
violation where claimant “managed her own financial
affairs by paying her bills with money orders”).
determining whether a claimant understood the appeals
process, courts also often consider whether a claimant was
represented by counsel. See Blair, 229 F.3d at 1296;
Tucker v. Sullivan, 779 F.Supp. 1290, 1296 (D. Kan.
1991). Here, Plaintiff was represented by counsel until after
the ALJ issued his unfavorable decision. See doc.
12-1 at 22 (“I was advised by my attorney not to
file an appeal and to start all over.”). Although
Plaintiff was no longer represented by an attorney by the
time she filed her request for review to the Appeals Council,
the facts demonstrate that Plaintiff had been represented by
an attorney and had taken her attorney's advice in
previously deciding not to file an appeal. Id. at 21
(“I was [misinformed] by my attorney on the appeals
process.”). Further, Plaintiff's claim that her
attorney misinformed her does not constitute good cause for
missing a deadline to request review, and thus cannot
constitute a due process violation. See 20 C.F.R.
§ 404.911. Finally, even if misinformation from her
counsel did constitute good cause for Plaintiff's failure
to meet the sixty-day deadline, the Appeals Council
investigated Plaintiff's claim in that regard and found
it to be meritless; specifically, the Council quoted
correspondence from Plaintiff's attorney that advised her
that she “may appeal the decision [herself], but [she]
must do so in writing within 60 days of the date [she]
received the decision.” Doc. 12-1 at 24.
additionally argues that the Appeals Council erred in failing
to consider whether Plaintiff's mental impairment was the
reason she did not file a timely appeal. Doc. 24 at
4. In her request for review, however, Plaintiff explained
that the reason for her failure to file a timely appeal was
that she was misinformed by her attorney on the appeals
process. Doc. 12-1 at 21. Similarly, in her
“statement of claimant, ” Plaintiff explained:
I am submitting a late appeal. I was advised by my attorney
not to file an appeal and to start all over. I was denied on
10/16/2015. Once I came in I was informed of the appeals
process and therefore I am requesting good cause for my late
appeal. I was given incorrect information from my attorney
who sent me a letter stating they weren't going to
represent me anymore. Please accept my late appeal.
Id. at 22.
in Plaintiff's request for review does she give any
indication that she was unable to understand the process of
appeal due to a mental condition. See generally
id. at 21-22. In fact, Plaintiff first claimed that
her impairments affected her ability to file a timely appeal
in her response to Defendant's motion to dismiss on
September 14, 2016. Doc. 24 at 2. Plaintiff attached
to this response a signed affidavit in which she states that
she did not understand and was confused about the paperwork.
Doc. 24-1. However, this affidavit is dated
September 9, 2016, after her request for review had been
dismissed and Defendant had filed the instant motion. See
docs. 12, 12-1. As she did not notify the Appeals
Council that she failed to file a timely appeal due to a
mental impairment, Plaintiff has failed to demonstrate that
the Appeals Council's failure to consider her alleged
mental impairments in dismissing her request for review
constitutes a violation of due process. See Hoiland v.
Colvin, No. 14-1253-RDR, 2014 WL 7272599, at *3 (D. Kan.
Dec. 18, 2014) (no colorable constitutional claim where
claimant “made no claim to the ALJ that her failure to
timely file was based on memory loss”) (internal
Plaintiff has failed to bring a colorable constitutional
claim, the Court has no jurisdiction to review this action,
and Plaintiff's Complaint must be dismissed.
Brandtner, 150 F.3d at 1307 n.3.
foregoing reasons, I recommend finding that the Court lacks
jurisdiction over this action. Therefore, I RECOMMEND that
Plaintiff's Complaint be DISMISSED.
 While the regulations detail several
other circumstances in which the decision of the ALJ may not
be binding upon all parties, the dismissal of a request for
review by the Appeals Council is not one of those
circumstances. See 20 C.F.R. 404.955.
 The federal regulations state:
“In determining whether you have shown that you had
good cause for missing a deadline to request review we
(1) What circumstances kept you from making the
request on time;
(2) Whether our action misled you;
(3) Whether you did not understand the requirements
of the Act resulting from amendments to the Act, other
legislation, or court decisions; and
(4) Whether you had any physical, mental,
educational, or linguistic limitations (including any lack
of facility with the English language) which prevented you
from filing a timely request or from understanding or
knowing about the need to file a timely request for
(b) Examples of circumstances where good cause may
exist include, but are not limited to, the following
(1) You were seriously ill and were prevented from
contacting us in person, in writing, or through a friend,
relative, or other person.
(2) There was a death or serious illness in your
(3) Important records were destroyed or damaged by
fire or other accidental cause.
(4) You were trying very hard to find necessary
information to support your claim but did not find the
information within the stated time periods.
(5) You asked us for additional information
explaining our action within the time limit, and within 60
days of receiving the explanation you requested
reconsideration or a hearing, or within 30 days of
receiving the explanation you requested Appeal Council
review or filed a civil suit.
(6) We gave you incorrect or incomplete information
about when and how to request administrative review or to
file a civil suit.
(7) You did not receive notice of the determination
(8) You sent the request to another Government
agency in good faith within the time limit and the request
did not reach us until after the time period had
(9) Unusual or unavoidable circumstances exist,
including the circumstances described in paragraph (a)(4)
of this section, which show that you could not have known
of the need to file timely, or which prevented you from
filing timely.” 20 C.F.R. § 404.911.