United States District Court, D. South Dakota, Western Division
JEFFREY L. VIKEN, CHIEF JUDGE.
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).
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.
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; 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).
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).
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
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)).
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
(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,