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Charles v. Berryhill

United States District Court, D. South Dakota, Western Division

September 25, 2017

MYLAN CHARLES, III, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner, Social Security Administration, Defendant.

          ORDER

          JEFFREY L. VIKEN, CHIEF JUDGE.

         Plaintiff Mylan Charles, III, filed a complaint against defendant Nancy A. Berryhill, the Acting Commissioner of the Social Security Administration (“SSA” or “Commissioner”). (Docket 1, later amended at 15). Plaintiff filed a motion to reverse the administrative law judge's (“ALJ's”) decision finding no basis to extend the deadline for plaintiff to seek review of the SSA's denial of benefits. (Docket 24). Defendant resists the motion. (Docket 25).

         BACKGROUND

         The court draws many of these facts from the parties' joint statement of material facts. (Docket 21). Plaintiff applied for disability insurance benefits on April 5, 2012. Id. ¶ 2. His “date last insured is December 31, 2009.” Id.

         ¶ 1. He asserted he suffered from “panic attacks, agoraphobia, high cholesterol, thyroid, arthritis, and depression.” Id. ¶ 6. His application was denied “at the initial, state agency level, on October 30, 2012.” Id. ¶ 2. He was not represented by counsel and did not appeal. Id. ¶¶ 3-4.

         Plaintiff filed a new application for disability insurance benefits on May 9, 2013. Id. ¶ 5. The SSA denied this application on May 14, 2013, and again upon reconsideration in August 2013. (AR at p. 25;[2] Docket 25 at pp. 1-2). Plaintiff obtained legal representation on July 29, 2013. (Docket 21 ¶ 18). Plaintiff submitted a written request for a hearing in October 2013. (AR at p. 25; Docket 25 at p. 2).

         On March 13, 2014, the ALJ rejected plaintiff's request for a hearing and dismissed his application. (Docket 21 ¶ 25). The ALJ refused to extend the deadline for plaintiff to request review of the October 30, 2012, denial of benefits. Id.; (AR at pp. 25-26). The ALJ did not hold a hearing. (Docket 21 ¶ 26). The appeals council denied plaintiff's request for review of the ALJ's dismissal. (AR at pp. 18-19).

         ANALYSIS

         “A federal district court's jurisdiction to review the [Commissioner's] decisions regarding disability benefits is governed by 42 U.S.C. § 405(g), which provides review only of a ‘final decision of the [Commissioner] made after a hearing.' ” Boock v. Shalala, 48 F.3d 348, 351 (8th Cir. 1995) (quoting 42 U.S.C. § 405(g)). “However, if jurisdiction is not available under 405(g), the district court may also review the [Commissioner's] decision if the plaintiff alleges a colorable claim of unconstitutionality.” Id. (citing Califano v. Sanders, 430 U.S. 99, 109 (1997); Gipson v. Harris, 633 F.2d 120, 122 (8th Cir. 1980)). “A constitutional claim is colorable if it is not wholly insubstantial, immaterial, or frivolous.” Klemm v. Astrue, 543 F.3d 1139, 1144 (9th Cir. 2008) (internal quotation marks omitted). “A mere allegation of a due process violation is not a colorable constitutional claim.” Id. (internal citations and quotation marks omitted).

         “It is well-settled that the [Commissioner's] refusal to reopen an administratively final decision under 20 CFR § 404.988 is not a ‘final decision . . . made after a hearing' subject to judicial review under 405(g).” Boock, 48 F.3d at 351 (quoting 42 U.S.C. § 405(g)) (citing Sanders, 430 U.S. at 107-08; Lewellen v. Sullivan, 949 F.2d 1015, 1016 (8th Cir. 1991)). Furthermore, “[i]t is equally well-settled that the [Commissioner's] determination of no good cause to extend the period for appeal under 20 CFR § 404.909 is similarly not subject to judicial review under § 405(g).” Id. (citing Turner v. Bowen, 862 F.2d 708, 709-10 (8th Cir. 1988); Smith v. Heckler, 761 F.2d 516, 519 (8th Cir. 1985); Sheenan v. Sec'y of Health, Educ. & Welfare, 593 F.2d 323, 325 (8th Cir. 1979)).

         Plaintiff seeks reconsideration of the SSA's denial of benefits on October 30, 2012. (Docket 24 at pp. 5-6). Section 404.909(b) provides the process by which a claimant who “want[s] a reconsideration of the initial determination but [did] not request one in time . . . may ask [the SSA] for more time to request reconsideration.” 20 CFR § 404.909(b). “If [the claimant] shows [the SSA] that [he] had good cause for missing the deadline, [the SSA] will extend the time period. To determine whether good cause exists, [the SSA] use[s] the standards explained in § 404.911.” Id. Section 404.911 outlines the factors the SSA will consider in determining whether a claimant has shown good cause for missing the deadline:

(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, ...

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