Dykens v. Commissioner of Social Security Administration

          ORDER

          James A. Teilborg, Senior United States District Judge.

         Pending before the Court is Defendant Commissioner of Social Security Administration’s (the “Administration”) Motion to Dismiss under Federal Rule of Civil Procedure (“Rule”) 12(b)(1) for lack of subject matter jurisdiction. (Doc. 10). Plaintiff Brandon Dykens (“Plaintiff”) has responded (Doc. 13), Defendant has not replied. The Court now rules on the motion.

         I. Background

         Plaintiff filed for Social Security benefits under both Title II and Title XVI on August 1, 2017. (Doc. 10-1 at 3). The Administration, on October 14, 2017, denied both claims. (Id. at 4, 8). Plaintiff requested a reconsideration, but the Administration denied his claims again on January 11, 2018. (Id. at 12).

         Some five months later, on June 20, 2018, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), attributing his delayed request to the fact that he never “received any decision letter or correspondence” from the Administration related to his request for reconsideration. (Id. at 19–20). On July 11, 2018, an ALJ dismissed the request as untimely without good cause to extend the sixty-day regulatory deadline for hearing requests. (Id. at 22, 26). Plaintiff sought the Appeals Council’s review of the ALJ’s dismissal on September 7, 2018, but the Appeals Council denied review on September 27, 2018. (Id. at 36–38).

         Plaintiff then filed a complaint in this Court on November 11, 2018, claiming the ALJ denied him due process by refusing to hold a hearing on whether good cause existed to extend the sixty-day regulatory deadline or, at the least, to “consider any evidence that would refute Plaintiff’s evidence of good cause, particularly when the unrefuted evidence establishe[d] that the original notice of denial of [his] claim was never received.” (Doc. 1 at 4-5). Plaintiff seeks either reversal of the ALJ’s dismissal or a remand for a hearing on the issue of good cause. (Id. at 5).

         II. Discussion

         a. Legal Standard

         “Federal courts are courts of limited jurisdiction,” possessing only those powers that the Constitution or statutes grant to them. Kokkonen v. Guardian Life Ins. Co. of Am. 511 U.S. 375, 377 (1994). As such, under Rule 12(b)(1), a court must dismiss a claim it lacks subject matter jurisdiction to decide. Fed.R.Civ.P. 12(b)(1). When resolving a Rule 12(b)(1) motion, courts “may review any evidence to resolve factual disputes concerning the existence of jurisdiction.” Milsap v. Social Sec. Admin, No. CV 10-1757-PHX-JAT, 2011 WL 2135079, at *2 (D. Ariz. May 31, 2011). Because a federal court “presume[s] a cause lies outside [its] limited jurisdiction, . . . the burden of establishing the contrary rests upon the party asserting jurisdiction.” Kokkonen, 511 U.S. at 377.

         “Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit.” Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 475 (1994). Given that “[s]overeign immunity is jurisdictional in nature,” id., a court’s jurisdiction to decide suits brought against the Federal Government is limited to “the terms of its consent to be sued,” United States v. Sherwood, 312 U.S. 584, 586 (1941). For claims arising under the Social Security Act, 42 U.S.C. § 405(g) provides the sole avenue for judicial review, see 42 U.S.C. § 405(h), allowing unsuccessful claimants to seek review of “any final decision of the [Administration] made after a hearing . . . within sixty days after the mailing to him of notice of such decision,” 42 U.S.C. § 405(g). The Social Security Act does not define the term “final decision;” instead, the Administration fleshes out its meaning by regulation. Weinberger v. Salfi, 422 U.S. 749, 766 (1975).

         Those regulations require claimants to proceed through a four-step administrative review process before any decision becomes “final”:

First, the claimant must seek an initial determination as to his eligibility. Second, the claimant must seek reconsideration of the initial determination. Third, the claimant must request a hearing, which is conducted by an ALJ. Fourth, the claimant must seek review of the ALJ’s decision by the Appeals Council. If a claimant has proceeded through all four steps on the merits, all agree, § 405(g) entitles him to judicial review in federal district court.

Smith v. Berryhill, 139 S.Ct. 1765, 1772 (2019) (citing 20 C.F.R. § 416.1400). Claimants seeking successive stages of review face regulatory deadlines, including, as relevant here, sixty days to request a hearing from an ALJ following reconsideration. See 20 C.F.R. § 416.1433(b). Although claimants who miss this deadline may request an extension for good cause, 20 C.F.R. § 416.1433(c); see also 20 C.F.R. § 416.1411 (explaining the Administration’s standards for good cause), “[b]ecause the [Administration’s] decision whether, for good cause shown, to entertain an untimely hearing request . . . is strictly discretionary, it is not final and thus not generally reviewable by a district court,” Dexter v. Colvin, 731 F.3d 977, 980 (9th Cir. 2013) (citations omitted); see also Peterson v. Califano, 631 F.2d 628, 630–31 (9th Cir. 1980) (holding that judicial review is available under § 405(g) only after a statutorily mandated hearing takes place (first citing Califano v. Sanders, 430 U.S. 99, 108 (1977), and then citing Cappadora v. Celebrezze, 356 F.2d 1, 4–5 (2d Cir. 1966)).^[1]

         A limited exception exists, however, for “any colorable constitutional claim of due process violation that implicates a due process right to a meaningful opportunity to be heard or to seek reconsideration of an adverse benefits determination.” Udd v. Massanari, 245 F.3d 1096, 1099 (9th Cir. 2001). A constitutional claim is colorable if it is not “wholly insubstantial, immaterial, or frivolous.” Id. (quoting Boettcher v. Sec’y of Health & Human Servs., 759 F.2d 719, 722 (9th Cir. 1985)). To meet this test, a claimant cannot rely on “mere allegation[s],” but must instead support his claim with “facts sufficient to state a ...