The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SHANNON CHEYENNE B.,1
Plaintiff, Civ. No. 3:22-cv-01590-AA
v. OPINION & ORDER
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_______________________________________
AIKEN, District Judge:
Plaintiff Shannon Cheyenne B. brings this case seeking to reverse the
dismissal of her request for a hearing on her claim under Title II of the Social Security
Act and seeks to have her Title II claim remanded for medical determination. The
Commissioner moves to dismiss for lack of subject matter jurisdiction based on a lack
of final agency action. ECF No. 17. For the reasons set forth below, the motion is
DENIED.
BACKGROUND
Plaintiff applied for benefits under Title II and Title XVI on August 21, 2018.
Voegele Decl. ¶ 4(a), ECF No. 7-1; Compl. ¶ II(A), ECF No. 1. The applications were
denied on October 3, 2018. Voegele Decl. ¶ 4(a); Compl. ¶ II(B). Plaintiff filed
1 In the interest of privacy, this opinion uses only first name and the initial of the last name of the
non-governmental party or parties in this case.
subsequent claims for Title II and Title XVI benefits on December 13, 2018. Voegele
Decl. ¶ 4(b); Compl. ¶ II(C).
On January 26, 2019, Plaintiff’s application for Title II benefits was denied
initially. Voegele Decl. ¶ 4(b). On March 19, 2019, Plaintiff’s application for Title
XVI benefits was denied. Id. Plaintiff’s application for Title II benefits was denied
upon reconsideration on June 9, 2019. Id.
On July 8, 2019, Plaintiff filed a request for a hearing before an ALJ on her
application for Title II benefits. Voegele Decl. ¶ 4(c). On March 17, 2020, the ALJ
dismissed Plaintiff’s request for a hearing on her Title II benefits on the basis of res
judicata. Id. On May 21, 2020, Plaintiff filed a request for review of the dismissal
and, on August 15, 2022, the Appeals Council denied Plaintiff’s request for review.
Id.
Plaintiff’s Title XVI application was denied upon reconsideration on March 16,
2020 and, on May 4, 2020, Plaintiff filed a request for a hearing before an ALJ.
Voegele Decl. ¶ 4(d). On November 29, 2022, the ALJ issued an unfavorable decision
denying Plaintiff’s claim for Title XVI benefits. Id. On February 2, 2023, Plaintiff
requested review of that decision and on March 10, 2023, the Appeals Council granted
Plaintiff additional time to submit arguments and evidence related to her Title XVI
claim. Id. At the time of the filing of the present case, Plaintiff’s Title XVI claim
remained pending before the Appeals Council. Id.
DISCUSSION
The Commissioner moves to dismiss on the basis that Plaintiff’s application for
Title XVI benefits remains pending before the Appeals Council that, as a result, no
final agency decision has been rendered on Plaintiff’s application for Title XVI
benefits and that Plaintiff has therefore failed to exhaust her administrative
remedies.
However, in the Complaint, Plaintiff only seeks review of the denial of her
request for a hearing on her application for Title II benefits which, based on the record
before the Court, were adjudicated separately from her application for Title XVI
benefits. As set forth above, the Appeals Council denied Plaintiff’s request for review
based on the application for Title II benefits. Voegele Decl. ¶4(c). Dismissal by the
Appeals Council is a “final decision” for purposes of review under 42 U.S.C. § 405(g).
Smith v. Berryhill, 587 U.S. 471, 478-79 (2019). Plaintiff acknowledges that the
Court’s review in this case is limited to whether the dismissal of her Title II claim on
res judicata grounds was appropriate. Plaintiff’s Title XVI claim is not implicated in
the Complaint. The Court concludes that Plaintiff has exhausted her administrative
remedies with respect to her Title II claim and so the Commissioner’s motion to
dismiss on that basis is denied.
The Commissioner also moves to dismiss on the basis that Plaintiff has failed
to raise a colorable constitutional claim by her allegation that the Commissioner
violated her due process rights by failing to follow the necessary procedures for
reopening an application under 20 C.F.R. § 404.988(c). Plaintiff acknowledges that
the Complaint erroneously cites to 20 C.F.R. § 404.988(c) when it should cite instead
to 20 C.F.R. § 404.988(a).2 Plaintiff asserts that this typographical error does not
alter the substance of the Complaint, which asserts that her Plaintiff’s application
for Title II benefits was denied on October 2, 2018, and refiled on December 12, 2018,
and subsequently denied on res judicata grounds. The Court concludes that the
citation to 20 C.F.R. § 404.988(c) was a scrivener’s error and declines to dismiss on
that basis. The Court will allow Plaintiff thirty days from the date of this Order in
which to file an amended complaint correcting the error.
CONCLUSION
For the reasons set forth above, the Motion to Dismiss, ECF No. 7 is DENIED.
Plaintiff has leave to file an amended complaint within thirty (30) days of the date of
this Order.
It is so ORDERED and DATED this ___6_t_h______ day of August 2025.
/s/Ann Aiken
ANN AIKEN
United States District Judge
2 20 C.F.R. § 404.988(a) provides that, within 12 months of the date of the notice of the initial
determination, the determination may be reopened “for any reason.” 20 C.F.R. § 404.988(c) is not
time-limited but allows for the reopening of the determination only in specific circumstances, such as
if the determination was obtained by fraud.