Hills v. Commissioner of Social Security

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UNITED STATES DISTRICT COURT

6 WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

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EDWARD JAMES H.,

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Plaintiff, CASE NO. 2:22-CV-01296-TL

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v.

ORDER GRANTING DEFENDANT’S

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COMMISSIONER OF SOCIAL SECURITY, MOTION TO DISMISS AND DENYING

11 PLAINTIFF’S MOTION FOR

Defendant. DECLARATORY JUDGMENT

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13 This matter is before the Court on (1) Defendant Commissioner of Social Security’s

14 motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) (Dkt. No. 14), and (2) pro se

15 Plaintiff Edward H.’s Cross Motion for Declaratory Judgment Pursuant to Rule 57 (Dkt. No. 21).

16 Having considered the relevant record, the Court GRANTS Defendant’s Motion to Dismiss and

17 DENIES Plaintiff’s Cross Motion for Declaratory Judgment as MOOT. Accordingly, the Court

18 DISMISSES this case with prejudice.

19 I. BACKGROUND

20 Plaintiff, proceeding pro se, claims Defendant (1) denied him of his ability to apply for

21 Supplementary Security Income (SSI) benefits under Title XVI of the Social Security Act (“the

22 Act”), and in doing so, violated (2) his constitutional rights, and (3) the Americans with

23 Disabilities Act (“ADA”). Dkt. No. 6 at 3–5.

1 • On January 24, 2022, the Social Security Administration (“SSA”) sent him a letter

stating that he had talked with the office about his eligibility for SSI benefits but that

2 he was determined ineligible because Plaintiff told the office that he did not want to

file a claim for the benefits. Dkt. No. 6 at 3. Plaintiff alleges he never told an SSA

3 employee that he did not want to file a claim. Id.

4 • On February 17, 2022,1 Plaintiff sent a letter to the SSA office located in Kent, WA,

claiming mismanagement, fraud, theft, abuse deprivation of federal funds under his

5 account by Social Security Employees, as well as their unlawful termination of

benefits and demanding a full audit of his account. Dkt. No. 6 at 3; see also Dkt. No.

6 21-1 at 5–6.

7 • On June 29, 2022, Plaintiff sent another letter to the Kent SSA office requesting an

application to apply for federal benefits under Title 42 U.S.C Section 1382(b)(1)

8 along with a two-page doctor’s report. Dkt. No. 6 at 4, see also Dkt. No. 21-1 at 25-

29.2 Plaintiff alleges he received a letter on July 15, 2022, from the office “appearing

9 to suggest Plaintiff made [sic] a phone call to the Social Security Office and requested

a telephone appointment for and Plaintiff never did.” Dkt. No. 6 at 5.

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• On August 16, 2022, an SSA employee called Plaintiff’s cell phone to ask if he was

11 prepared to complete an application over the phone. Plaintiff informed the employee

he was prepared to complete an application over the phone. Dkt. No. 6 at 5. Plaintiff

12 alleges that he was asked if he wanted to be transferred to a supervisor, and he

responded that he did. Id. Plaintiff further alleges that his call was forwarded to a

13 voice message of a person who never returned his call. Id.

14 On September 19, 2022, Plaintiff filed his Complaint in this case.3 On November 18,

15 2022, Defendant filed a Motion to Dismiss (Dkt. No. 14) along with two declarations: one by

16 Assistant United States Attorney Kristen R. Vogel (Dkt. No. 15) and another by SSA Program

17 Analyst Andrew Martinez (Dkt. No. 16). Defendant states that during Plaintiff’s August 2022

18 phone call with the SSA office, Plaintiff was provided with an opportunity to apply for SSI

19 benefits, but Plaintiff “did not want to continue;” therefore Plaintiff was issued a denial that day.

20 See Dkt. No. 16 at 12. Defendant also states that on November 9, 2022, Defendant contacted

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22 1 Plaintiff’s Complaint states that he mailed the letter on February 17, 2022. The copy of the actual letter provided as

an exhibit to Plaintiff’s cross-motion reflects that the letter was dated February 14, 2022.

23 2 The letter has a typographical error and requests benefits under 42 U.S.C. § 1381(b)(1) rather than 42 U.S.C.

§ 1382(b)(1).

3 Plaintiff initially moved for leave to bring this case without having to pay the usual filing fee (i.e., in forma

1 Plaintiff via phone “to discuss his complaint and determine whether motion practice could be

2 avoided.” Dkt. No. 15 at 1. Defendant states that during their conversation, Plaintiff explained

3 that he wanted to apply for “benefits under 42 U.S.C. § 1382(b)(1).” Id. at 1–2. Defendant then

4 sent an email to Plaintiff on November 14, 2022, explaining that the benefits he is seeking are

5 Title XVI benefits, and that to receive such benefits, he first needed to complete an application

6 by going to the SSA’s website or calling the SSA’s toll-free phone number. Dkt. No. 15 at 2; 15-

7 1 at 4–5. Plaintiff replied to Defendant the same day, but Defendant found his responses

8 “suggest[ed] he is not interested in proceeding with an SSI application.” Dkt. No. 15 at 3; 15-1

9 at 2. Defendant’s Motion to Dismiss soon followed. Dkt. No. 14.

10 Plaintiff then filed a cross-motion for declaratory judgment on January 17, 2023. Dkt.

11 No. 21.

12 II. DISCUSSION

13 A. Defendant’s Motion to Dismiss

14 Defendant contends the Court must dismiss this case because Plaintiff has failed to

15 (1) exhaust his remedies as required under the Act, (2) allege a colorable constitutional claim, or

16 (3) state a claim under the ADA. Dkt. No. 14 at 1–2.

17 1. Legal Standard

18 When a plaintiff “fails to state a claim upon which relief can be granted,” the defendant

19 may move for dismissal. Fed. R. Civ. P. 12(b)(6). In reviewing a 12(b)(6) motion to dismiss, the

20 Court takes all well-pleaded factual allegations as true and considers whether the complaint

21 “state[s] a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

22 (2009) (citation and quotation marks omitted); accord Bell Atlantic Corp. v. Twombly, 550 U.S.

23 544, 555–56 (2007). While “[t]hreadbare recitals of the elements of a cause of action, supported

1 seeking relief “pleads factual content that allows the court to draw the reasonable inference that

2 the defendant is liable for the misconduct alleged.” Id. at 672. “When reviewing a dismissal

3 pursuant to . . . Rule 12(b)(6), ‘we accept as true all facts alleged in the complaint and construe

4 them in the light most favorable to plaintiff[ ], the non-moving party.’” DaVinci Aircraft, Inc. v.

5 United States, 926 F.3d 1117, 1122 (9th Cir. 2019) (quoting Snyder & Assocs. Acquisitions LLC

6 v. United States, 859 F.3d 1152, 1156–57 (9th Cir. 2017)). Generally, a district court may not

7 consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion to dismiss. Lee v.

8 City of L.A., 250 F.3d 668, 688 (9th Cir. 2001) (citations omitted). However, the court may

9 consider documents appended or attached to the complaint. United States v. Ritchie, 342 F.3d

10 903, 908 (9th Cir. 2003).

11 2. Judicial Review under the Social Security Act

12 The Court first addresses Defendant’s contention as to whether Plaintiff can seek judicial

13 review. Dkt. No. 14 at 3–6. A plaintiff seeking a judicial review of the denial of his or her

14 benefits under the Social Security Act must first exhaust the remedies set forth in the Act. See 42

15 U.S.C. § 405(g), (h); Yellen v. Saul, 820 F. App’x 615, 616 (9th Cir. 2020); Subia v. Comm. of

16 Soc. Sec., 264 F.3d 899 (9th Cir. 2001); Bass v. Soc. Sec. Admin., 872 F.2d 832, 833 (9th Cir.

17 1989). Section 405(g) of the Act specifically states, “that a civil action may be brought only after

18 (1) the claimant has been party to a hearing held by the [Commissioner], and (2) the

19 [Commissioner] has made a final decision on the claim.” Bass, 872 F.2d at 833 (emphases

20 added). A claimant obtains the Commissioner’s “final decision” about his or her entitlement to

21 benefits only after completing all four steps of the administrative review process: (1) initial

22 determination; (2) reconsideration determination; (3) hearing before an Administrative Law

23 Judge (“ALJ”); and (4) Appeals Council review. See 20 C.F.R. § 416.1402(a)(1). This Court

1 action. 42 U.S.C. §§ 405(g), (h); Weinberger v. Salfi, 422 U.S. 749, 763-66 (1975); Johnson v.

2 Shalala, 2 F.3d 918, 921 (9th Cir. 1993).

3 In this case, there is no indication Plaintiff has received a final decision from the

4 Commissioner regarding his SSI claim, as he has not shown that he has properly exhausted the

5 necessary administrative remedies set forth in the Act. Plaintiff himself acknowledges no

6 application for SSI benefits was submitted. Dkt. No. 6 at 5. Plaintiff, therefore, has not had a

7 hearing before an ALJ, and the Appeals Council has not reviewed the ALJ’s decision. This

8 appears to be a result of some confusing communications that occurred, and the Court senses

9 Plaintiff’s frustration. However, Plaintiff must complete all of the necessary administrative steps

10 before the Court may review a “final decision” by the Commissioner. See 42 U.S.C. § 405(g). As

11 Plaintiff has not shown that he has applied for the benefits he seeks and, therefore, has not

12 received a “final decision” from the Commissioner, he cannot invoke a judicial review pursuant

13 to the Act.

14 3. Plaintiff’s Constitutional Claims

15 Plaintiff asserts that the Defendant violated the Fifth and Fourteenth Amendments of the

16 United States Constitution. Dkt. No. 6 at 5.

17 Even when judicial review is not available based on a claimant’s failure to show there has

18 been a “final decision” by the Commissioner, an exception is available, for “any colorable

19 constitutional claim of due process violation that implicates a due process right either to a

20 meaningful opportunity to be heard or to seek reconsideration of an adverse benefits

21 determination.” Dexter v. Colvin, 731 F.3d 977, 980 (9th Cir. 2013) (citations omitted). A

22 constitutional claim is “not ‘colorable’, if it ‘clearly appears to be immaterial and made solely for

23 the purpose of obtaining jurisdiction or . . . is wholly insubstantial or frivolous.’” Hoye v.

1 constitutional violation without supporting allegations is not a colorable constitutional claim.

2 Klemm v. Astrue, 543 F.3d 1139, 1144 (9th Cir. 2008) (internal quotation marks and citation

3 omitted). “Rather, the claim must be supported by facts sufficient to state a violation of

4 substantive or procedural due process.” Id. (internal quotation marks and citation omitted).

5 Plaintiff has failed to provide any such bases for his constitutional claims. Plaintiff simply

6 alleges that Defendant violated the Fifth and Fourteenth Amendments because the agency falsely

7 stated he did not want to file a claim for SSI and mismanaged his funds. Dkt. No. 6

8 at 3–4.

9 The Court first notes that the Fourteenth Amendment does not apply to federal entities.

10 U.S. v. Navarro, 800 F.3d 1104, 1113 n.6 (9th Cir. 2015) (“[T]he Equal Protection Clause of the

11 Fourteenth Amendment . . . applies only to the states, not to the federal government or federal

12 entities.”). Therefore, the Court only addresses Plaintiff’s claim under the Fifth Amendment.

13 The Fifth Amendment prohibits the government from depriving persons of property

14 without due process of law. U.S. Const. Amend. V. To state a claim for due process under the

15 Fifth Amendment, a plaintiff must have a “constitutionally protected liberty or property interest

16 at stake.” Nevada Dep’t of Corr. v. Greene, 648 F.3d 1014, 1019 (9th Cir. 2011). “The interest of

17 an individual in continued receipt of [disability] benefits is a statutorily created ‘property’

18 interest protected by the Fifth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332, (1976).

19 However, “it is the termination of that property interest which implicates due process.” Manor v.

20 Astrue, No. C10-5944-JLR, 2011 WL 3563687, at *4 (W.D. Wash. July 28, 2011) (citing

21 Mathews, 424 U.S. at 332). Here, as discussed, there is no indication Plaintiff ever received the

22 benefits he alleges Defendant are depriving him of. The record shows Defendant contacted

23 Plaintiff after he filed his Complaint, explained to Plaintiff what benefits he was seeking, and

1 15 at 2; 15-1 at 2–6. Plaintiff has not shown that Defendant deprived him of an opportunity to

2 seek reconsideration on this matter. Accordingly, Plaintiff fails to state a colorable constitutional

3 claim.

4 4. Americans with Disabilities Act Claim

5 Plaintiff also asserts a claim under the ADA. Dkt. No. 6 at 5. The ADA prohibits

6 discrimination of “a public entity” on the basis of an individual’s disability. See 42 U.S.C. §

7 12132. The ADA defines a “public entity”, in pertinent part, as “any State or local government;

8 any department, agency, special purpose district, or other instrumentality of a State or States or

9 local government . . . ” See 42 U.S.C. § 12131(1) (emphases added). The SSA is a federal

10 agency, therefore it is not subject to any claims under the ADA.

11 Further, Plaintiff’s discrimination claim under the ADA involves the interpretation of

12 federal law, therefore it arises within the context of the federal question jurisdiction statute, 28

13 U.S.C. § 1331. However, section 405(h) of the Act states that “[n]o action against the United

14 States, the Commissioner of Social Security, or any officer or employee thereof shall be brought

15 under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter.”

16 Accordingly, this Court has no subject matter jurisdiction to hear Plaintiff’s ADA claim. See

17 Geschke v. Soc. Sec. Admin., No. C06-1256C, 2007 WL 1140281, at *10 (W.D. Wash. Apr. 17,

18 2007) (finding that Section 405(h) bars general federal question claims).

19 Defendant suggests the Court may construe Plaintiff’s allegation of an ADA violation as

20 a claim asserted pursuant to the Rehabilitation Act (“RA”), 29 U.S.C. § 794. Dkt. No. 14 at 7.

21 The Court must liberally construe a pro se plaintiff’s Complaint (see Florer v. Congregation

22 Pidyon Shevuyim, N.A., 639 F.3d 916, 923 & n.4 (9th Cir. 2011)). Both the ADA and the RA are

23 designed to prohibit discrimination on the basis of disability. Lovell v. Chandler, 303 F.3d 1039,

1 discrimination in all federally-funded programs.” Id. “To establish a violation of § 504 of the

2 RA, a plaintiff must show that (1) []he is handicapped within the meaning of the RA; (2) []he is

3 otherwise qualified for the benefit or services sought; (3) []he was denied the benefit or services

4 solely by reason of [his] handicap; and (4) the program providing the benefit or services receives

5 federal financial assistance.” Id. Plaintiff has failed to meet all elements here as he has not shown

6 that he was denied any benefits or services because of his disability. The record instead shows

7 several attempts between Defendant and Plaintiff to resolve issues surrounding his request for

8 benefits which were confusing4 and, unfortunately, unsuccessful. See generally Dkt. No. 6.5

9 Thus, even if Plaintiff had alleged a violation of the RA, Plaintiff’s claim would fail.

10 In sum, though the Court construes Plaintiff’s Complaint liberally, it must nevertheless

11 contain factual assertions sufficient to support a facially plausible claim for relief. Iqbal, 556

12 U.S. at 678 (citing Bell Atlantic Corp., 550 U.S. at 570). A claim for relief is facially plausible

13 when “the plaintiff pleads factual content that allows the court to draw the reasonable inference

14 that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Here, Plaintiff

15 has not obtained a final decision from the Commissioner subject to judicial review under

16 Section 405(g), has failed to allege a colorable constitutional claim, and has failed to show that

17 he was denied benefits because of his disability. In other words, Plaintiff’s allegations fail to

18 support a plausible claim for relief, therefore the Court GRANTS Defendant’s Motion to Dismiss.

19 B. Plaintiff’s Cross Motion for Declaratory Judgment

20 As discussed supra Section II.A.2, Plaintiff cannot invoke a judicial review pursuant to

21 the Act because he has not shown that he completed the administrative steps for the Court to

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4 The confusion seems to stem from Plaintiff’s specific focus on 42 U.S.C. § 1382(b)(1) and belief that there is a

different application for benefits under that section. See e.g., Dkt. No. 15-1 at 2-5.

1 properly review a “final decision” by the Commissioner. See 42 U.S.C. § 405(g) (“Any

2 individual, after any final decision of the Commissioner of Social Security made after a hearing

3 to which he was a party, irrespective of the amount in controversy, may obtain a [judicial] review

4 of such decision.”). The Court has an independent duty to ensure subject matter jurisdiction. See

5 United Investors Life Ins. Co. v. Waddell & Reed, Inc., 360 F.3d 960, 967 (9th Cir. 2004) (“[A]

6 district court ha[s] a duty to establish subject matter jurisdiction . . .whether the parties raised the

7 issue or not.”); Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-

8 matter jurisdiction, the court must dismiss the action.”). Federal courts are presumed to lack

9 subject matter jurisdiction over a case, and the plaintiff bears the burden of showing otherwise.

10 Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). “Ordinarily, a court

11 cannot issue a ruling on the merits ‘when it has no jurisdiction’ because ‘to do so is, by very

12 definition, for a court to act ultra vires,’” or outside its powers. Brownback v. King, 141 S. Ct.

13 740, 749 (2021) (quoting Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 89 (1998)). Here,

14 without a “final decision” by the Commissioner, the Court is deprived of jurisdiction over this

15 matter. See 42 U.S.C. 405(g). Accordingly, the Court denies Plaintiff’s Motion for Declaratory

16 Judgment as moot. However, if Plaintiff believes he is entitled to SSI benefits, the Court strongly

17 encourages Plaintiff to file an application first.

18 III. CONCLUSION

19 For the above reasons, the Court GRANTS Defendant’s Motion to Dismiss and DENIES

20 Plaintiff’s Motion for Declaratory Judgment.

21 Dated this 2nd day of May 2023.

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A

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Tana Lin

United States District Judge