United States District Court, D. New Mexico
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] ...