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Ramirez v. Colvin

United States District Court, D. New Mexico

December 16, 2016

ROSARIO G. RAMIREZ, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          GREGORY B. WORMUTH UNITED STATES MAGISTRATE JUDGE

         This 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.

         I. Background

         On June 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.

         On July 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.

         II. Motions to Dismiss under Rule 12(b)(1)

         “A 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).

         Defendant's 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).

         III. Analysis

         In its 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.[1] Id. § 404.955(a-b).

         Plaintiff 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).”).

         Plaintiff 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.”).

         However, 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).

         Plaintiff 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] ...


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