Petition for Writ of Certiorari — Gibler v. Barnhart
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/ Supreme Court, U.S,
FILED
No.04-_94 1357 4PR 4 2005
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Ur;
IN THE
Supreme Court of the Anited States
—
TIMOTHY GIBLER,
Petitioner,
- v.
Jo ANNE B. BARNHART,
* Commissioner of the Social Security Administration,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit
PETITION FOR A WRIT OF CERTIORARI
STEVEN BRUCE, *
PEOPLE WITH DISABILITIES
FOUNDATION
507 Polk Street, Second Floor
San Francisco, California 94102
(415) 931-3070
* Counsel of Record Attorney for Petitioner
WILSON-EPES PRINTING CO., INC. - (202) 789-0096 - WASHINGTON, D. C. 20001
QUESTIONS PRESENTED FOR REVIEW
1. Petitioner, Timothy Gibler, asks this Court to decide
whether the Social Security Administration can take away
social security disability benefits and Medicare needed for the
necessities of life from an individual without first providing:
a) Notice which a reasonable person can understand and
b) An opportunity to present objections at a meaningful
evidentiary hearing in accordance with basic due process
standards.
2. Petitioner, Timothy Gibler, asks this Court to decide if a
social security disability beneficiary may have access to the
federal court system to adjudicate due process issues over
which the Social Security Administration’s Administrative
Law Judges and Appeals Council have no jurisdiction.
3. Petitioner, Timothy Gibler, asks this Court to decide
whether the Social Security Administration can retroactively,
with no time limit, require beneficiaries, as a condition to
continue to receive social security disability benefits and
Medicare, to produce minute detail, such as the amount of
money spent on anti-psychotic medication, taxi fare or leav-
ing work early.
(i)
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW ................ i
TABLE OF AUTHORITIEG................scssccssessseseereeseenees iv
UNITED STATES CODES. ...cccccrccccsccscesececcasvscccesescneses iv
FEDERAL REGULATIONS. ................s0.scssssrssrsesseesenee v
RUIN cccsccecccccecccecscccccescnsncsnessesecsecensosnseseeses I
FRI IOIN, ccccssscsccsccssessesscserssescccsnensrenssssssososssoesoses 3
STATEDENT OF PACTS q.ccccoscoscesccscorevsccsessccssccenceseose 3
A. Connation Of Bemettts ........ccsecsccccscesceccsccscseceseseee 3
B. District Court Disposition ...............scecceeeeeeeeeees 6
C. Hearing before the Administrative Law Judge .. 10
I UPEE SINS cccsennescsnsesnensctnsenensvasensenasennennsoqnecnnepenanen 10
STATUTORY AND REGULATORY SCHEME ........ 11
A. Disability Status and Work Activity...............-+ 11
B. Exhaustion................. susienibsnieccntionaptadnennen’ 13
REASONS FOR GRANTING THE PETITION........... 14
A. Continuing Due Process Violations................-+ 14
B. Right to Notice and an Opportunity to Appeal .. 14
C. Right to Fair and Accurate Evidence................. 16
ALL ADMINISTRATIVE REMEDIES WERE-
EXHAUSTED wechhanioee 17
THE NINTH CIRCUIT'S DECISION WAS NOT
MADE ON THE MERITS 19
CONCLUSION 20
APPENDIX A-i
(iii)
iv
TABLE OF AUTHORITIES
CASES Page
Bowen v. New York, 476 U.S. 467 (1986)......... 14, 16, 23
Corroa v. Shalala, 20 F. 3d 934 at 948. (9th Cir.
Fa sinnanitatinrtancinhinnaienatibiosiatiinniaie el tds seat ac 17
Dusenbery v. United States, 534 U. S. 161
Go atisniinitiniseniaisenstiiaeciiiatndl idee iil teen 21
Friends of the Earth v. Laidlaw Environmental
Services, 528 U. S. 167, 120 S. Ct. 693
ie icsienitindicavibbintiaincmieienadandeted cena 14
Goldberg v. Kelly, 397 U.S. 254 (1970).......c.cc000. 23, 24
Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th
Seite: vip aiinssininsansatethiidillanssbetestiasiiis aitieaden a 2!
Lewis v. Apfel, 236 F. 3d 533 (9th. Cir. 2001)....... 17
Matthews v. Eldridge, 424 U.S., at 328, 96 S.Ct.,
Se ccsicntiiseihintinineidihitaaattgeiit lata 14
Matthews v. Eldridge, 424 U.S. 319, 342-343
(FIO OPA ccisdaspnsemnnnigiiansnisdeesinadieeisamminiet casi stots: 24
Schweicker v. Chilicky, 487 U. S. 415, 415-417
a ecteriiitaialiemssadaibinilaacic elie ee - 24
Sweierkiewiez v. Sorema, 534 U.S. 506 (2002)..... 25
Udd v. Massanari, 245 F.3d 1096, 1099-1102
Ce Fare etscedanntintnitgitaeiidiccidaetaiets ree 21
Udd vy. Massanari, 245 F.2d 1096 (9th Cir.
icieilsichitiiiintnabaiiniiacbietl ite eee oe 22
Weinberger v. Salfi, 422 U.S. 795, 95 S. Ct.
SI) BAe CE tacihctiitinsinastnnitantag ee 16
UNITED STATES CODES
42 U.S.C. § 405(C)(3), (C4) A)....cccccecccsecesceceseees 15
Da a cilities EE 16
EE TA, Bc chinticvtcninconimas aie os 16
ra OD ineestnctcvinineniciteie eo oa pe
SS ft SRR ERecebaenies .pAie 24
G2 Ee Ci inicihstiessiteiettnsrinatigtetccrisseei 18, 25
42 U.S.C. § 1320 b-19, Pub. L. 106-170............... 17
Vv
TABLE OF AUTHORITIES —
FEDERAL REGULATIONS Page
20 C.E.R. § 406.803 ...ccrcscccsccscccesccosccccossssccesscsesceses 15, 22
20 C.F.R. § 404.909 (a) (1).....0g-..ecccrccrccsrcerccsersnees 18
20 C.F.R. § 404.987, €f. SO. ceccsecssessserseereeseeenensens 13
20 C.F.R. § 404.1505 ef. 5€q. .eescccseessesseereeeresseeees 16
20 C.F.R. § 404.15 10.....ccc.cccscccccssccesccececrsesecssseseess 10
20 C.F.R. § 404.15722........cccccccssscscceccescecreccssesssesees 10
20 C.F.R. § 404.1573(C), (1)-(6)..eeeseresesessereceeneees 17
20 C.F.R. § 404.1574(2) Table 1.0... cecsecseereeeeeee 16
20 C.F.R. § 404.1574 (a) & (8)(2) ..ercserserseereeneees 16
20 C.F.R. § 404.1574 (a)2 ...........cersscsrccecsecssocesesees 16
20. C.F.R. § 404. 1589.........cccccccoccscserrssccsnscscssccceses 18, 19
20 C.F.R. § 404. 1595(a) ............ccccccseccsrrescrssscsssenss 20
20 C.F.R. § 404.1595 (D) 1... ceeessersesseereensersenenseeees 9, 24
20 C.F.R. § 404.1595 (D)(2) ...ceseeereeeeserseeeeeeenesees 18, 20
20 C.F.R. § 404.1595 (C) .......ccccccsorresccesesssccseseceees 9
20 C.F.R. § 404.1596 (C) ....eccccrcerceresssrcsscecenssecseses 18
20 C.F.R. § 404. 1596(C)( 1)... eeccessecreeeeereeneeneenenes 24
20 C.F.R. § 404.1597 (a) ......cescsrcercercssssesecssssesseees 18
20 C.F.R. § 416.1112 (7) (2004) .0.......cccesreerseeees 17
IN THE
Supreme Court of the United States
No. 04-___
TIMOTHY GIBLER,
Petitioner,
Vv.
JO ANNE B. BARNHART,
Commissioner of the Social Security Administration,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit
PETITION FOR A WRIT OF CERTIORARI
INTRODUCTION
Petitioner (“Gibler”) seeks judicial review of the due
process violations that he experienced when Respondent
Social Security Administration (“SSA”) summarily cut off his
disability benefits. Although those benefits were ultimately
restored (but at a lower monthly rate), it took two years for
the internal Social Security processes to reverse the initial
determination to end his benefits. The consequences were
catastrophic for a mentally disabled individual who relies on
his disability benefits which are essential for his survival.
The administrative mishandling of Gibler’s claims file
(which included evidence of his ongoing, critical medical
condition, as well as evidence that SSA had previously
determined that Gibler’s “work”—as an occasional singer in
2
church choirs—was de minimus) was egregious. So egre-
gious were its administrative omissions that due process
considerations lead to the conclusion that disability bene-
ficiaries should be protected by actual hearings before their
benefits are cut off as SSA has only afforded this protection
to disabilities if a review is denoted a “medical review”
verses a “work review.”
Any benefit of administrative ease by not affording notice
and a hearing prior to termination of benefits cannot override
basic notions of due process. This hesitancy by the courts
below is understood to facilitate administrative processing;
however, Gibler requests that this Court find his Fifth
Amendment rights were—and continue to be—violated.
The issues raised here are by no means moot. SSA
initiated yet another review of Gibler’s earnings history
(including re-review of years that had already been adju-
dicated by the Administrative Law Judge in this case) while
two appeals were still pending before the Ninth Circuit,
resulting in the United States Court of Appeals issuing an
emergency stay. =
Gibler was further denied his due process rights by Social
Security regulations that mandate that great weight be given
to stale evidence, that is, adverse action summarily taken on
earnings records that are over ten years old. Even the Admin-
istrative Law Judge below, who followed those regulations,
made clear that he was uncomfortable with their application
in the instant case.
Due process violations run throughout this case; yet so far
the courts have declined to address those concerns on the
merits.
3
JURISDICTION
This Petition flows from a Denial of two Petitions For
Rehearing En Banc before the United States Court of Appeals
for the Ninth Circuit dated January 5, 2005 (Appendix Exhs.
2,7 pp. 2,7)
___ STATEMENT OF FACTS
A. Cessation of Benefits
Gibler was diagnosed as schizophrenic when he was in his
twenties. Not long after, in 1979, he received Social Security
disability benefits and has remaincod on them ever since.
Periodic medical reviews performed by SSA in 1986, 1991
and 1996, have confirmed his ongoing disability. In 1987,
Gibler was subjected to a “work review.” His occasional
work as a pick-up singer in church choirs was determined to
be “sheltered work”. (Opinion of Administrative Law Judge,
dated August 30, 2001, Appendix Exh. 17, pp. 95-110)
In a continuing disability review report, dated and signed
by Gibler on January 15, 2000, which is the subject of this
appeal, Gibler informed SSA that he is afraid to leave his
apartment, he has agoraphobia, he is trying to see a
counselors, and “I could not remember where to go...1 must
quit... .” (ALJ Decision Exhibit List No. 28, Appendix Exh.
17, pp. 95-110). Similarly SSA typed an acknowledgment
that it was informed that Gibler was psychotic and would be
out on the street without benefits. (ALJ Decision, Exhibit List
No. 34.) In early February 2000 during the pendency of the
review, Gibler was placed in a psychiatric lock-up ward in a
San Francisco hospital for approximately a week to ten days.
(See hospital discharge summary dated February 18, 2000
from SSA file, Appendix Exh. 22, p.120)
On April 20, 2000 SSA, through one of its local San
Francisco field offices, sent Gibler a letter and questionnaire
requesting information about his work history since 1979.
4
According to Social Security records, the in-person and
written communications were followed by a telephone call to
Gibler, initiated by Social Security claims representative,
Donald Worms. Gibler and SSA claims representative
Worms went over Gibler’s work history for the previous
twenty years. For many years, the only work that Gibler had
been able to undertake had been occasional singing in choirs.
Shortly thereafter, Gibler received a written commu-
nication, dated July 27, 2000 (Appendix Exh. 19 pp. 113-
116), from SSA, requesting additional information for Gib-
ler’s earnings history for the years 1979 through 2000. This
letter listed seven employers (all churches or musical
associations), as well as a supposed period of “self-employ-
ment,” from January 1988 to December 1991. The employers
listed were the very ones that Gibler had named to claims
representative Worms. There was no mention of a hospital
discharge summary from February 2000 in the SSA file.
20 C.F.R. § 404.1595 (c) states “. . . If you agree with the
advance notice, you do not need to take any action... .” This
regulation also states at 404.1595 (b)1 that “* Medical reasons.
The advance notice will tell you what the medical infor-
mation in your file shows. . . .” SSA ignored its own
regulation by not telling Gibler that being in a lock-up
psychiatric ward was a ground for not terminating benefits
and that SSA was required to obtain an opinion from a [his]
psychiatrist, a treating source, infra at page 20.
This letter dated July 27, 2000, from SSA contained little
specific information. It did not set out the amount (or even
range) of Gibler’s purported earnings. The letter did not in
any way intimate that the Social Security concepts of
“sheltered work,” “work subsidies,” “impairment related
work expenses”, or “sporadic work” had been or could be
5
considered.' The letter discussed briefly SSA’s “substantial
gainful activity work” test (usually called “SGA”) and told
him of his so-called “trial work period,” which Gibler was
then first told ended in 1981.” The letter did suggest that
Gibler might have mistakenly been receiving disability bene-
fits since April 1988 (over twelve years previously), due to
“substantial work as of January 1988.” (Appendix, Exh. 19,
pp. 113-116)
Gibler, with the assistance of counsel, sought testimony
from his treating psychiatrist, Dr. Carol Banyas, who testified
in the district court via declaration (Declaration of treating
psychiatrist. Appendix, Exh. 20, pp.117-118). He also filed a
new application for disability benefits; which was approved
hased on the very same evidence used to terminate him.
For almost all years of his earnings history, Gibler’s wages
fell below the monthly SGA’ caps of $300 (that applied in
1980-1989), $500 (1990-1998) and $700 (1999-2000). In
two years, 1988 and 1990, his wages were higher.
Without any further communications the SSA summarily
ceased paying Gibler’s benefits on November |, 2000 with no
appealable notice."
Multiple attempts via telephone, fax and mail’ to have
Gibler’s benefits reinstated through Mr. Larimore, senior
attorney at SSA’s Regional Commissioner’s Office, Critical
Congressional Unit were unavailing because the claims file
' “Sporadic work” comes from substantial gainful activity 42 U.S.C.
423 (d) (1) and 20 C.F.R.404.1510 & 1572 and case law.
2 20 C.F.R. 404.1592(a)
*See 42 U.S.C. § 423(d)(1MA); 423(d(2A), and § 20 C.F.R.
§§ 404.1510 and 404.1572 .
4 The check he did not receive in November would have been for his
October benefits.
5 ~ : eas
* Numerous confirming letters are exhibits of record.
6
had already been closed and transferred to Baltimore, MD
where it was lost for five to six months. Although SSA
never® gave Gibler a formal notice initial cessation,’ in order
to put the appeal process on track, Gibler filed a “premature”
Request for Reconsideration on or about November 2000.
The Request for Reconsideration was denied by summary
notice, issued by SSA’s headquarters in Baltimore dated
March 23, 2001."
B. District Court Disposition
As Gibler had been deprived of benefit checks and
Medicare coverage for four months, on March 1, 2001, he
petitioned the District Court for a Writ of Mandamus, seeking
immediate re-instatement of benefits. Gibler also sought to
have the district court order SSA to commence a new
evaluation of Gibler’s medical condition given the testimony
of his former treating psychiatrist who stated there was
substantial increased risk of decompensation. (District Court
Case No. CV 01-0895 MJJ/JL, “Gibler I”).. SSA brought a
Motion to Dismiss for lack of subject matter jurisdiction
(based on not fulfilling the exhaustion administrative reme-
dies doctrine) which was denied, after hearing on June 12,
2001, by Order entered July 11, 2001. The District Court’s
basis for denying the motion to dismiss was a determination
that Gibler had raised a colorable constitutional claim of a
due process violation. (Order Denying Motion to Dismiss,
Appendix Exh. 15, pp. 60-81.
° Long after the Request for Reconsideration had been filed in this
case, the SSA issued a “reconstructed” Notice of Cessation.
’ This omission is conceded by the SSA. (SSA’s Brief In Support of
Cross Motion for Summary Judgment dated May 28, 2002 at page 11:1-3
and Brief of Appellee, Case No. 03-15836, page 5 and footnote 3.)
* Per District Court’s October 16, 2002, Order, Appendix Exh. 13,
pp. 22-42 reconsideration was denied on March 23, 2001. Normally,
Requests for Reconsideration are handled in a local (San Francisco) office
not in Baltimore, MD. -
7
At the June 12,2001 hearing and in its July 11, 2001 Order,
the District Court indicated that its concern was a prompt
resolution of Gibler’s case by way of a hearing before an
Administrative Law Judge. The District Court was appar-
ently unwilling or unabie to explore the full ramifications of a
prompt hearing and decision by an Administrative Law
Judge. The Court, moreover, suggested that mandamus would
not lie because Gibler had failed to exhaust his administra-
tive remedies. (Appendix Exh. 15; pp. 60-81, Order of July
11, 2001, page 4.)
In response, counsel for Gibler brought a second action for
declaratory and injunctive relief (Gibler II, District Court
Case No. C 01-2774 MJJ) and at or about the same time filed
a Motion for Injunctive and Declaratory Relief in the first
action (Gibler I). The court chose to deny the motion in the
first case (Gibler I) and to dismiss the second case (Gibler II).
Gibler was not permitted to utilize discovery. A Motion to
Compel Discovery was denied with respect to all depositions
and other discovery, except for production of one document
because a Magistrate Judge found the Court had already
decided not to rule on how due process impacts social
security procedures. (See Order of Magistrate Judge, Gibler I,
dated July 2, 2002, with a clear restatement of the posture of
the case and Order confirming stipulation of the parties.
(Appendix Exh. 14, pp. 43-59)
The case commenced by Petition for Writ of Mandamus
was thereafter left to languish until it was brought to
conclusion by Gibler’s Motion for Summary Judgment, filed
February 14, 2002 and denied, after hearing on October 15,
2002, by Order dated October 16, 2002 (Appendix Exh. 13,
pp. 22-42 ) At the same time, Respondent’s Cross-Motion for
Summary Judgment was granted.
The issues herein are not moot. At no time during this case
did the District Court go further than addressing a “colorable
8
claim of due process,” in so far as how promptly the hearing
by the Administrative Law Judge could be scheduled.”
“However, the Court expressly declined to reach the
issue of whether SSA’s scheme for review was uncon-
stitutional as applied to Gibler.” Order of January 11,
2002, at page 3.)
Similarly, at an earlier hearing in the same case, the District
Court stated with respect to due process and social security
procedure:
. . I never took jurisdiction of the merits of the
determination. So you could not get judgment for
that.”"”
Ultimately, Gibler filed a third action for injunctive and
declaratory relief on February 25, 2003. (District Court Case
No. CV-03—0823 MJJ (Gibler II], one of the two subject
cases of this appeal). By this time, every conceivable
administrative avenue had been explored, even by moving to
“reopen” within SSA’s regulatory framework... The ALJ, on
Gibler’s request to reopen pursuant to 20 C.F.R. § 404. 987,
et. seq. amended his decision after which time, SSA’ appeals
council denied review. The District Court complaint (Gibler
Ill) was timely filed thereafter. (See Amendment to ALJ
decision dated October 30, 2002, as to reopening (Appendix,
pp. 111-112) Since the District Court had refused to address
the major due process issues in the mandamus case (Gibler I)
including precluding Gibler from taking any depositions,
Gibler sought declaratory and injunctive relief to urge the
district court to permit appropriate discovery and adjudicate
the due process issues. (Gibler III)
* October 16, 2002, Order, (Appendix Exh. 13, pp. 22-24
Wo
125).
Transcript, January 8, 2002 hearing, (Appendix Exh. 23, pp. 121-
9
The Gibler III complaint was dismissed for failure to state
a cause of action even though SSA addressed the allegations
on the merits. In its second Motion to Dismiss the complaint
SSA stated: Res judicata bars all grounds for recovery
which could have been asserted and the Court already
adjudicated the due process issues and 2) SSA had given
Gibler an opportunity to be heard. (Brief of SSA filed July
17, 2003, pages 4:8-12, 21-28). The District Court stated “To
the extent “collateral estoppel ”,[nor res judicata]. (Order of
August 21, 2003).
In any event, the constitutional issues were never adju-
dicated.
~Citing Friends of the Earth v. Laidlaw Environmental
Services, 528 U. S. 167, 120 S. Ct. 693 (2000), Gibler
believed he could be subjected to yet another work review
although his benefits had been restored. Gibler, in fact,
received another work review notice resulting in the Ninth
Circuit issuing an unopposed Emergency Order dated April
28, 2004 for a stay. (Appendix Exh. 9, pp. 12-13.
A Rule 60(B) Motion for Relief from Judgment was denied
by Order dated filed April 16, 2003 (Appendix Exh. 12 pp.
18-21) which preceded an appeal in the Ninth Circuit. (Gibler
1). Gibler requested the Circuit Court take into account a
merit reason for tolling for a late filing after a Judgment
based on Motions for Summary Judgment, i.e., that Gibler
was in a psychotic episode and temporarily would not (be-
cause of incapacitation) authorize the appeal. (See declaration
of Gibler’s attorney dated July 7, 2003, Appendix Exh. 10,
pp. 14-16 and Order denying request to toll from a two judge
“procedure only” panel). See Bowen vs. New York, 476 U.S.
467 (1986) and Matthews v. Eldridge, 424 U.S., at 328, 96
S.Ct., at 899 for tolling.
In each of the three cases detailed above, Gibler raised the
due process concerns that his Petition for Writ of Certiorari
addresses.
10
C. Hearing before the Administrative Law Judge
This has become the final decision of SSA. On August 27,
2001, a de novo'' hearing was held before United States
Administration Law Judge F. Neil Aschemeyer, who issued a
mostly favorable Decision on August 30, 2001. (Appendix
Exh. 17, pp. 95-110) For the first time since SSA began the
work review process in January 2000, there was a hearing
with an opportunity to present evidence in the form of
testimony and an opportunity to make objections.
The Administrative Law Judge determined that Gibler had
been disabled within the meaning of Title Il of the Social
Security Act and that he had not performed SGA since
January 1, 1991.'" Moreover, the Administrative Law Judge
found that after Gibler’s disability benefits were cut off, his
“only income at this time is the still small amount of wages
and food stamps, which are insufficient to cover his ordi-
nary living expenses.” (ALJ Opinion, supra.)
The Administrative Law Judge was obliged to accept
Social Security’s evidence of Gibler’s earnings records. 42
U.S.C. § 405(c)(3), (c)(4)(A); 20 C.F.R. § 404.803. He
expressed, however, serious reservations about the accuracy
of those records for the years 1988, 1989 and 1990, years
during which the SSA asserted that Gibler had been self-
employed. (ALJ Opinion, supra.)
Four months after this decision was rendered, Gibler’s
benefits were ultimately restored, in part, by the Baltimore,
MD payment center in December 2002.
EXHAUSTION
The ALJ and SSA’s Appeals Council (administrative
appeal) being bound by all SSA’s regulations and internal
'' See 20 C.F.R. § 404.943.
' Appendix pp 95-110, Exhibit 1—ALJ Opinion, page 7.
rulings, have no jurisdiction to rule on constitutional issues. A
filing under these circumstances would be futile and mean-
ingless. See Bowen vs. New York, 476 U.S. 467 (1986);
Weinberger vs. Salfi, 422 U.S. 795, 95 S. Ct. 2557, 2581
(1975).
After the ALJ reopened and amended his Decision, dated
October 30, 2002, review of which was denied by the
Appeals Council (Appendix Exh. 18, pp. 111-112.), the third
due process complaint was filed in the District Court, Gibler
lil.
STATUTORY AND REGULATORY SCHEME
A. Disability Status and Work Activity
To determine whether an individual is disabled within the
meaning of 42 U.S.C. §§ 416(i), 423(d) and 20 C.F.R.
§ 404.1505 ef seq., requires analysis of a host of complex
factors. Aside from analyzing how medical diagnoses'°
impact an individual's ability to work, SSA must also
consider an individual’s work history.
The amounts of the SGA caps have increased slowly over
the years. From 1980 to 1989, the cap was $300 per month.
20 C.F.R. § 404.1574(2) Table 1. From 1990 to June 1999,
the cap was $500 of earnings per month. /d, etc. If an
individual is being paid more than other similarly situated
workers receive for it, such activity is considered “subsidized
work.” 20 C.F.R. § 404.1574 (a)2. Earnings from “sub-
sidized” work do not “count” towards the SGA. 20 C.F.R.
§ 404.1574 (a) & (a)(2.)
An individual may “work” in a “sheltered workshop.” 20
C.F.R. § 404.1573(c), (1)-(6). Work in a sheltered workshop
does not count towards a calculation of SGA. Additionally,
'’ Which SSA contends are not at issue in the present cases, but which
Gibler asserts should have been addressed.
12
—
impairment related work expenses (IRWE’s) are deductible
from a presumptive monthly SGA dollar amount.
A parallel exception to those established by the regulations
cited above is “sporadic work.”
The reasons for initiating a particular work review are not
publicly known. In practice, for any reason and at any time-
even arbitrary and capricious reasons—the Agency may
begin a work review.
As explained above, earnings of a certain level only raise a
presumption of SGA. Lewis vs. Apfel vs. 236 F. 3d 533 (9th.
Cir. 2001); Corroa vs. Shalala, 20 F. 3d 934 at 948. (9" Cir.
1994) Many factors must be considered before benefits may
be cut off. In addition to the exceptions outlined above, there
are multiple “return-to-work” schemes, which permit a recip-
ient to experiment with returning to work before foregoing
his benefit checks. Similarly, he may participate in the
Ticket-to-work act and work incentive program 42 U.S.C.
§ 1320 b-19, Pub. L. 106-170, or under SSI rules a
beneficiary may keep one dollar for every two dollars earned.
20 C.F.R. § 416.1112 (7) (2004)"*
The congressional policy underlying these work schemes is
that the disabled should be encouraged to go back to work
and should in no way be discouraged from attempting to work
for fear of jeopardizing their benefits. (Ticket To Work Act,
supra).
Once the Agency has taken into consideration all of the
above factors, if it then makes a determination that a
disability benefits recipient is engaging in SGA, the Agency
may terminate his benefits. But now the burden of proof has
'* Although this applies to SSI recipients it shows Congress’ policy of
work incentives. If Gibler had not worked during his life he would not
have been ceased because of the “2 for 1” work incentive rule under the
poverty program.
13
shifted. Pursuant to 42 U.S.C. § 423 (f) Disability insurance
benefit payments, which also apply to medical reviews, the
beneficiary is presumed to continue to qualify for disability
status absent a showing of substantial evidence to the
contrary. 42 U.S.C. § 423 (g) provides for continuation of
benefits pending review simply by requesting it.
Moreover, before benefits can actually be cut off, the
Agency must give the beneficiary proper notice. See 20
C.F.R. § 404.1589. Notice must contain certain informa-
tion, i.e.
“
_ The advance notice will tell you ... this work
shows you are not disabled.” 20 C.F. R. § 1595(b)(2).
Also see 20 C.F.R. § 404.1597(a).
The regulations provide that benefits will not stop if:
“We will not suspend your cash benefits if . . . (1)
The evidence in your file does not clearly show that you
are not disabled. . .” 20 C.F.R. § 404.1596 (c).
B. Exhaustion
After receiving an adverse determination, an individual
must file a Request for Reconsideration, within 60 days. 20
C.F.R. § 404.909 (a) (1). Within 60 days of a denial of
Reconsideration (in this case called a “Notice of Recon-
sideration,”) a claimant may file a request for hearing before
an administrative law judge. It generally takes between six
months to two years before the hearing is held. (See District
Court Order denying SSA’s Motion to Dismiss dated July 11,
2001. (Appendix Exh. 15, pp. 60-81)
It often takes months (in the case here, four months) for the
judge’s decision to be implemented.
After an adverse (or only partially favorable) decision from
the Administrative Law Judge, within sixty days, a claimant
may seek review from the “Appeals Council,” located in Falls
Church, VA. In this case, as neither the Administrative Law
14
Judge nor the Appeais Council had jurisdiction over due
process issues, further applications for relief from either one
would have meaningless, there being no further adminis-
trative remedies to exhaust.
Moreover, Gibler agreed with the ALJ's decision'® except-
ing only the part over which the ALJ had no jurisdiction, the
detail relating to the years 1988-1990. This was appealed to
the Appeals Council after the ALJ amended his decision. This
due process complaint, dismissed with prejudice, is now
before this Court (Gibler III). (Appendix Exh. 16, pp. 82-94).
REASONS FOR GRANTING THE PETITION
A. Continuing Due Process Violations
During the pendency of these appeals before the Court of
Appeals for the Ninth Circuit, SSA commenced another work
review. The period of time SSA proposed to consider in its
new work review included, years in the 1990s that had been
adjudicated by the Administrative Law Judge in the present
two cases in August 2001. SSA did not even oppose
Gibler’s request for an emergency stay pending appeal.
B. Right to Notice and an Opportunity to Appeal
To cease benefits, the continuing disability review scheme
calls for at least a two-step notice procedure: “. . . we will
notify you in writing and give you an opportunity to appeal.”
20 C.F.R. § 404.1589.
The July 27, 2000, letter from Social Security to Gibler
(Appendix Exh. 19, pp. 113-116) clearly was in the nature of
the first notice outlined in the regulation cited immediately
above. “[W]e will notify you that we are reviewing your
'* 20 C.F.R. 404.900 (3) provides for administrative review for people
who are “dissatisfied” with an ALJ decision.
15
eligibility for disability benefits and why we are reviewing
your eligibility ....” Id.
The second notice, which should have set out the claims
representative's decision and the reasons for it, was never
sent. The second notice would have included information on
Gibler’s right to appeal. Instead, Gibler’s benefits were
summarily cut off on November 1, 2000, before he was ever
given any opportunity to appeal. What the second notice
should have shown was Social Security's analysis of Gibler’s
earnings history and how the analysis compelled a conclusion
that he was engaging in SGA. The second notice should have
detailed Gibler’s opportunity to appeal from such an analysis,
not simply an invitation to provide further information.
“ _ | We will tell you why we have determined that
you are not now disabled, . . . and why this work shows
you are not disabled. 20 C.F.R. §§ 404.1595(a);
404.1595(b)(2).
Gibler had no procedural opportunity to challenge the
faulty nature of the Administration's analysis. The only
avenue of relief remaining was the filing of a premature
“appeal” (Request for Reconsideration) after Gibler’s benefits
were cut off. SSA claims representative Donald Worms had
never applied the mitigating factors of sheltered work, work
subsidies, impairment-related work expenses and sporadic
work to Gibler’s work history.
Yet, particularly in light of its own determination of
“sheltered work” back in 1987, the SSA was under an
obligation to perform such an analysis before termination.
The doctrines of res judicata and administrative finality apply
to social security decisions. Nothing has changed in Gibler’s
work or ability to work since the 1987 review. (See AiJ
opinion (Appendix Exh. 17, pp. 95-110)
SSA makes much of Gibler’s failure to reply to its July 27,
2000, letter. Yet, in his telephone conference with claims
16
representative Worms, Gibler had already complied and had
no further basic facts to supply about his employers or
earnings for the previous 20 years. In addition to obtaining
the opinion of Carol Banyas, M.D., the former primary
treating psychiatrist, Gibler filed a new application for
disability. Without an initial decision from which to appeal,
Gibler did all that could be expected. Notice was deficient
See Dusenbery v. United States, 534 U.S. 161 (2002).
Before their benefits are cut off, Social Security recipients
are entitled to proper notice. Udd vs. Massanari, 245 F.3d
1096, 1099-1102 (9th Cir. 2001); Gonzalez vs. Sullivan, 914
F.2d 1197, 1203 (9th Cir. 1990). In a case such as Gibler’s,
involving support for the necessities of life, such due process
protections are particularly vital.
C. Right to Fair and Accurate Evidence
In the case below, the Administrative Law Judge con-
sidered Gibler’s entire work history since 1979. The most
troubling part for the ALJ to analyze was Gibler’s earnings
records for 1988 and 1990 because a reasonable person would
not ordinarily be able to recall minute detail from ten to
thirteen years ago. Yet the ALJ went so far as to reveal in his
opinion that he had doubts about the accuracy of these
records: “.. . The self employment income established by the
claimant’s earnings record appears (on the surface) to be an
aberration. . .” (ALJ Opinion.)
The special considerations to which the Administrative
Law Judge referred in the passage quoted above were con-
siderations of “impairment-related work expenses,”'® as
sheltered work or sporadic work. Gibler’s case would have
been greatly bolstered, if he had been able to produce receipts
'® See the ALJ’s comments on page 3 of his August 30, 2001 opinion:
“[FJactor such as . . . whether the severity of the individual's impairment
or impairments requires” (ALJ Opinion)
17
for expenses, such as special anti-psychotic medications
needed or receipts from taxis taken after rehearsals. Those
years were too long ago to reasonably require Gibler to recall.
The Administrative Law Judge noted:
“Regulations at 20 C.F.R. § 404.803 state that after the
statutory time limit (3 years, 3 months and 15 days after
the end of a tax year), earnings records are conclusive. . .
since it is impossible to determine whether special
considerations existed in 1988 and 1990. . . .”
(ALJ Opinion.)
This statute of limitations is not reciprocal which means
SSA can go back 10, 20, 30 or more years in a retroactive
work review termination.
ALL ADMINISTRATIVE REMEDIES
WERE EXHAUSTED
An ALJ and the Appeals Council have no jurisdiction
outside of the social security act. Therefore, there was no
realistic opportunity to make a factual record on consti-
tutional issues beyond the ALJ decision.
SSA takes the position that Gibler failed to exhaust his
administrative remedies. This Court has construed the due —
process clause to require a meaningful opportunity to be
heard and present objections before benefits can be taken
away or property alienated. Too often, decisions by low-level
administrators, unfettered by considerations of fundamental
fairness, are ill-conceived, as they are motivated primarily by
such concerns as the number of cases processed each month.
Udd vs. Massanari, 245 F.2d 1096 (9th Cir. 2001).
The facts of the present case demonstrate a wanton
disregard of materials that were already contained in the SSA
field office files. First, Gibler had already undergone a work
review in 1987, wherein SSA had reached the conclusion that
Gibler’s sporadic singing in church (and occasionally, other)
choirs was in the nature of “sheltered work.” When, in 2000,
18
district office claims representative, Donald Worms, dis-
cussed Gibler’s work history with him, Gibler informed Mr.
Worms that he continued to earn a very limited income in
the same way, and that he was very excitable and nervous.
(Appendix Exh. 21 p. 119)
No sooner did the work review process get underway then
Gibler was placed in a hospital psychiatric lock-up ward for a
period of at least one week.'’ Gibler’s hospital discharge
papers were submitted to the local SSA office before SSA
acted to cut off his benefits. The question of continuing
disability should a!ways be raised whenever a social security
disability recipient is in a psychiatric lock-up ward.'*
Several times including at a hearing on January 8, 2002
SSA represented that *. . . This cessation was not based on a
continuing disability review, it was based on earnings over
several years.”'”
Yet, the basis for discontinuing Gibler’s benefits was that
he was working or able to work. SSA‘s national policy is to
ignore medical evidence and it has denied it had to consider
medical evidence throughout this litigation contrary to 20
C.F.R. § 404. 1595 (b)1 and 404.1596(c)(1).
Goldberg v. Kelly, 397 U.S. 254 (1970) is the seminal case
calling for hearings prior to termination of benefits. This case
falls within the parameters of Goldberg for terminating bene-
fits prior to a hearing as opposed to after and Bowen, supra
for egregious conduct in disregarding the fact that Gibler was
in a lock-up psychiatric ward during the work review.
'’ The record shows that Gibler entered the hospital of California
Pacific Medical Center, in San Francisco, discharged on February 18,
2000. (Appendix Exh. 22, p. 120)
‘* “Work,” as in engage in SGA, not as in singing for a choir every
once in a while.
’ See Transcript January 8, 2002 (Appendix Exh. 23, pp. 121-125)
19
Matthew vs. Eldridge, 424 U. S. 319, 342-343 (1976)
purported to distinguish disability beneficiaries from welfare
recipients and held that claimants of “modest means and
outside resources” (emphasis added) need not be protected by
the stringent standards of a Goldberg vs. Kelly hearing. Id.
Further in support of its holding in Matthews, this Court
adduced evidence of procedural safeguards in the multi-layered
review process including the use of medical professionals.
Congress over-ruled this holding of Matthews vs. Eldridge,
supra. In the Social Security Disability Benefits Reform Act
of 1984, 42 U.S.C. § 423 (f), (g), Congress enacted a pro-
vision requiring continuation of benefits pending a “face to
face” (hearing officer/judicial) hearing. In Schweicker vs.
Chilicky, 487 U. S. 415, 415-417 (1988), egregious abuses
were noted, e.g. ceasing social security beneficiaries on the
very same evidence used to initially determine that they were
disabled. Gibler was found disabled based on his new 2001
application for benefits filed in January 2001 based on the
very same evidence used to terminate him.
Here a medical review was required so as not to violate
procedural due process. A long line of cases commonly
known as the “treating source rule” whereby a treating
doctor’s opinion may not be rejected absent clear and con-
vincing evidence to the contrary.” A due process violation
occurred here when treating psychiatrists’ opinions were
disregarded.
THE NINTH CIRCUIT’S DECISION WAS NOT
MADE ON THE MERITS
Both the Court of Appeals for the Ninth Circuit and the
District Court failed to adjudicate the due process issues
squarely raised in the cases below. Yet Gibler is entitled to
his day in court.
” Moore vs. Commissioner, 278 F.3d 920 (9th Cir. 2002); Lester v.
Chater, 81 F. 3d 821, 835 (9th Cir. 1995)
20
In Sweierkiewiez v, Sorema, 534 U.S. 506 (2002), this
Court stated “we will not impose heightened pleading stan-
dards where Congress has not instructed us to do se...”
Gibler has both a Fifth Amendment right to access to the
courts because SSA is violating the 1984 amendments, supra
in that benefits are required pending appeal so as not to
violate due process.
The courts are needed to determine the fairness of Social
Security administrative hearings when, as in the cases here,
the evidentiary rules dictated by SSA regulations offend all
notions of due process by the treatment of stale evidence (ten
to thirteen years old, since 1987) as presumptively correct.
CONCLUSION
Gibler is asking this Court to find that necessities of life
cannot be taken away before notice and a meaningful
opportunity to be heard consistent with Congress’s amend-
ments giving recipients benefits pending appeal—42. U.S.C.
§ 423 (g) and the Due Process Clause.
Apparently, the District Court was reluctant to find
exhaustion and decide the due process issues on the merits
because of administrative ease. Although no depositions were
permitted, since SSA concedes it properly followed its na-
tional procedure, Gibler submits there are hundreds of thou-
sands of similarly situated people.
Respectfully submitted,
STEVEN BRUCE, *
PEOPLE WITH DISABILITIES
FOUNDATION
507 Polk Street, Second Floor
San Francisco, California 94102
(415) 931-3070
* Counsel of Record Attorney for Petitioner
APPENDIX
A-i
TABLE OF CONTENTS '
FOR THE APPENDIX Page
Exh.1!. Judgment Filed January 14, 2005 in the
Court of Appeals for the Ninth Circuit in Case
03-16901 entitled “Timothy Gibler vs. Jo Anne
B. Barnhart, Commissioner of the Social
Security Administration” (District Court Case
No. 03-00823-MJJ)........ccccscecscossccsccceccsserscsecsees l
Exh.2. Order Filed on January 5, 2005, in the
Court of Appeals for the Ninth Circuit in Case
03-16901 entitled “ Timothy Gibler vs. Jo
Anne B. Barnhart, Commissioner of the Social
Security Administration” (District Court Case
No. 03-00823-MiSJ).........c.ccccccssccercceccercssnseensees 2
Exh.3. Memorandum Filed and Entered October
8, 2004, in the Court of Appeals for the Ninth
Circuit in Case 03-16901 entitled “Timothy
Gibler vs. Jo Anne B. Barnhart Commissioner
of the Social Security Administration” (District
Court Case No. 03-00823-MJJ).........cccccccsseeeeeee 3
Exh.4. Judgment Filed January 18, 2005 in the
United States Court of Appeals for the Ninth
Circuit in Case 03-15836 entitled “Timothy
Gibler vs. William A. Halter, Acting Com-
missioner of the Social Security Admin-
istration” (District Court Case No. Ol-
OQOBOSMII/IL) .....0..corecscorcccrcccsscssescesceccsencsessseses 6
' With regard to documents in the Appendix, counsel has reviewed
scanned reproductions of original documents and certifies that to a
substantial extent, they are true and correct replicas of the original
documents
A-ii
TABLE OF CONTENTS—Continued
Exh. 5. Order Filed January 5, 2005 in the
United States Court of Appeals for the Ninth
Circuit in Case 03-15836 entitled “Timothy
Gibler vs. Jo Anne B. Barnhart, Commissioner
of Social Security Administration” (District
Court Case No. 01-OO895MIJJ/IL) 0... .eceseeseeee
Exh. 6. Memorandum Filed and Entered October
7, 2004 in the United States Court of Appeals
for the Ninth Circuit in Case 03-15836 entitled
“Timothy Gibler vs. Jo Anne B. Barnhart,
Commissioner of the Social Security
Administration” (District Court Case No. 01-
TID seccesntuiuhenitilishsiieipainsddauibietiieteindintiteadgia
Exh. 7. Order filed September 9, 2004, in the
United States Court of Appeals for the Ninth
Circuit in Case 03-15836 Submitting Case
Without Oral Argument. (District Court Case
POR, GE MD cosisinecrsstinictntessnisnndtinninmane
Exh. 8. Order filed September 9, 2004, in the
United States Court of Appeals for the Ninth
Circuit in Case 03-16901 Submitting Case
Without Oral Argument. (District Court Case
UR SGI Acncsinsetcieessnnbtandstosanestnihanntensnn
Exh. 9. Emergency Order for Stay Issued in the
United States Court of Appeals for the Ninth
Circuit in Cases 03-15836 and 03-16901. Filed
April 28, 2004 (District Court Case No. 01-
SPINE AD cinticnissstovinninansncitsdesenniiabebdodiehpaiiamnssiit
Page
A-iii
TABLE OF CONTENTS—Continued
Exh. 10. Declaration of Steven Bruce in Support
of Opposition to Motion to Dismiss Filed
July 7, 2003 in the United States Court of
Appeals for the Ninth Circuit in Case 03-
15836 entitled “Timothy Gibler vs. Jo Anne
Barnhart, Commissioner of the Social Security
Administration” ((District Court Case No. 01-
OOSOSMII/IL)).....csccccsccescssscsseeecercenssrssssscssesseres
Exh. 11. Order Dismissing Plaintiff's Second
Amended Complaint with Prejudice Filed
September 22, 2003 in the United States
District Court for the Northern District of
California Case 03-00823-MJJ entitled
“Timothy Gibler vs. Jo Anne Barnhart” .......+++.
Exh. 12. Order Denying Plaintiff's Motion for
Relief from Judgment in United States District
Court Case entitled “Timothy Gibler vs. Jo
Anne B. Barnhart’ Dated April 16, 2003.
(District Court Case No. 01-00895MJJ /JL)......
Exh. 13. Order Filed October 16, 2002 Denying
Plaintiff's Motion for Summary Judgment and
Granting Motion for Summary Judg-
ment in the in the United States District Court
for the Northern District of California Case C
01-0895 entitled “Timothy Gibler vs. Jo Anne
Barnhart” (District Court Case No. OlI-
OOBOSMII/IL) .......ceccsssccsssvssccsesceneccescssnssssseeesees
Page
ia
17
18
22
A-iv
TABLE OF CONTENTS—Continued
Page
Exh. 14. Discovery Order Filed July 3, 2002 in
the United States District Court for the
Northern District of California Case C OI-
O895 entitled “Timothy Gibler vs. Jo Anne B.
Barnhart, Commissioner of the Social Security
Administration.” And Order Confirming Stip-
ulation Regarding Discovery Order Filed
August 5, 2002 (District Court Case No. 01-
8 Ne I 43
Exh. 15. Order Denying Res ondent’s Motion
To Dismiss filed July 11, 201 in the United
States District Court for t! . Northern Dis-
trict of California Case C 01-0895 entitled
“Timothy Gibler vs. Larry G. Massanari,
Acting Commissioner of the Social Security
RI, weicesninnciccitniinieniaaaiaticitiniataniibenas 60
Exh. 16. Second Amended Complaint for
Injunctive Relief, Declaratory Relief, Social
Security Benefits and Sanctions; Jury Demand
{Per Court Order] Filed August 28, 2003 in the
2003 in the United States District Court for the
Northern District of California in Case C 03-
0823 MJJ entitled “Timothy Gibler vs. Jo Anne
1D. De sscssncieniistiannanitiiaiinnataibiiiadeialadaaiegiiassis 82
Exh. 17. Decision of U.S. Administrative Law
Judge F. Neil Aschemeyer, Dated August 30,
2001, in the Claim of Timothy Gibler for
Period of Disability and Disability Insurance
Payments, Social Security Administration’s
Office of Hearings and Appeals ...................0+. 95
A-v
TABLE OF CONTENTS—Continued
Exh. 18. October 30, 2002 Amendment To De-
cision by U.S. ALJ, F. Neil Aschemeyer to
Reopen and Revise the Hearing Decision
Dated August 30, 2001. ..........sseeversesnesnenenes
Exh. 19. Social Security Administration Request
for Additional Earnings Information Dated
July 27, 2000 Issued by Field Office Manager
John Hanley .. pusneaceusssenpenndsnsnagnensssenbenenneans
Exh. 20. Declaration of Carol Banyas, M.D.,
Former Treating Psychiatrist, filed in United
States District Court for the Northern District
of California Case CV 01-0895 MJJ/JL
entitled “Timothy Gibler vs. Larry G. Massa-
nari, Acting Commissioner of the Social
Security Administration.” ............-sssseseeeeeeeeeees
Exh. 21. Report of Contact dated July 26, 200
by SSA Claims Representative Donald Worms
Exh. 22. Patient Discharge Instruction Sheet
Dated February 18, 2000...
Exh. 23. Transcript of Hearing January 8, 2002
on Plaintiff's Motion for Relief from Judgment
and for Bad Faith EAJA Attorney Fees in the
in the United States District Court for the
Northern District of California Case C-0-0895
entitled “Timothy Gibler vs. Jo Anne Barn-
hart” Cover page and pages 4, 5, 12 and 13....
Page
113
117
119
120
121
la
EXHIBIT 1
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
[Filed Jan 14, 2005]
No. 03-16901
D.C. No. CV-03-00823-MJJ
TIMOTHY GIBLER,
Plaintiff-Appellant,
v2
Jo ANNE B. BARNHART,
Commissioner of Social Security Administration,
Defendant-Appellee.
JUDGMENT
Appeal from the United States District Court for the
Northern District of California (San Francisco).
This cause came on to be heard on the Transcript of the
Record from the United States District Court for the Northern
District of California (San Francisco) and was duly
submitted.
On consideration whereof, it is now here ordered and
adjudged by this Court, that the judgment of the, said District
Court in this cause be, and hereby is AFFIRMED.
Filed and entered Friday, October 8, 2004.
A TRUE COPY
Cathy A. Catterson
Clerk of Court
ATTEST
JAN 13 2005
by: illegible signature
2a
EXHIBIT 2
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
[Filed Jan. 5, 2005]
No. 03-16901
D.C. No. CV-03-00823-MJJ
TIMOTHY GIBLER,
Plaintiff-Appellant,
Vv.
JO ANNE B. BARNHART,
Commissioner of Social Security Administration,
Defendant-Appellee.
ORDER
Before: CUDAHY,” GRABER, and FISHER. Circuit
Judges.
Judges Graber and Fisher have voted to deny the petition
for rehearing en bane and Judge Cudahy has so recom-
mended.
The full court has been advised of the petition for rehearing
en banc and no judge of the court has requested a vote on it.
The petition for rehearing en banc is DENIED.
* The Honorable Richard D. Cudahy, Senior Circuit Judge for the
United States Court of Appeals for the Seventh Circuit, sitting by
designation.
3a
EXHIBIT 3
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
[Filed Oct. 8, 2004]
No. 03-16901
D.C. No. CV-0300823-MJJ
TIMOTHY GIBLER,
Plaintiff-Appellant,
Vv.
Jo ANNE B. BARNHART,
Commissioner of Social Security Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Martin J. Jenkins, District Judge, Presiding
Submitted October 5, 2004°
San Francisco, California
MEMORANDUM™
Before: CUDAHY,”** GRABER, and FISHER, Circuit Judges.
* This disposition is not appropriate for publication and may not be
cited to or by the courts of this circuit except as provided by Ninth Circuit
Rule 36-3.
** This panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
*** The Honorable Richard D. Cudahy, Senior Circuit Judge for the
United States Court of Appeals for the Seventh Circuit, sitting by
designation.
4a
Plaintiff Timothy Gibler appeals from the district court’s
order dismissing, with prejudice, his second amended com-
plaint against the Social Security Administration. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
We review de novo the dismissal of a complaint for lack
of subject matter jurisdiction, including dismissal for failure
to exhaust administrative remedies. Kildare v. Saenz, 325
F.3d 1078, 1082 (9th Cir. 2003). We also have de novo
review over dismissals for failure to state a claim, Miller v.
Yokohama Tire Corp., 358 F.3d 616, 619 (9th Cir. 2004), and
decisions regarding issue preclusion, San Remo Hotel, L.P. v.
San Francisco, 364 F.3d 1088, 1094 (9th Cir. 2004), petition
for cert. filed, 73 U.S.L.W. 3162 (U.S. Sept. 7, 2004) (No.
04-340).
After carefully reviewing the claims in Plaintiffs succes-
sive complaints, we conclude that the Second Amended
Complaint properly was dismissed with prejudice. Several of
Plaintiffs claims were not exhausted and do not warrant
waiver of the exhaustion requirement. See Johnson vy.
Shalala, 2 F.3d 918, 921 (9th Cir. 1993) (describing the
exhaustion requirement and judicial standards for waiving the
exhaustion requirement). Several of Plaintiff's claims were
litigated previously, in Gibler v. Barnhart, No. 03-15836, and
therefore are precluded. See Littlejohn v. United States, 321
F.3d 915, 923 (9th Cir.) (describing the requirements for issue
preclusion), cert. denied, 124 S. Ct. 486 (2003). Plaintiff's
remaining claims fail to state a “colorable constitutional claim
of due process violation that implicate[s] a due process right
[either] to a meaningful opportunity to be heard or to seek
reconsideration of an adverse benefits determination.” Evans
v. Chater, 110 F.3d 1480, 1483 (9th Cir. 1997) (alteration in
original) (citation and internal quotation marks omitted)
(describing an exception to the exhaustion requirement for
colorable due process claims).
Sa
Moreover, we hold that the district court did not abuse its
discretion when it dismissed Plaintiff's Second Amended
Complaint with prejudice, after giving Plaintiff two prior
opportunities to focus and clarify his complaint. Cf. McHenry
v. Renne, 84 F.3d 1172, 1180 (9th Cir. 1996) (holding that the
district court did not abuse its discretion by dismissing the
plaintiff’s third amended complaint with prejudice for failure
to abide by Rule 8, which requires that each averment of a
pleading be “simple, concise, and direct”).
AFFIRMED.
A TRUE COPY
Cathy A. Catterson
Clerk of Court
ATTEST
JAN 13 2005
by: illegible signature
Deputy Clerk
6a
EXHIBIT 4
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
[Filed Jan. 18, 2005]
No. 03-15836
D.C. No. CV-01-00895MJJ/JL
TIMOTHY GIBLER,
Plaintiff-Appellant,
Ti
WILLIAM A. HALTER,
Acting Commissioner of the Social Security Administration,
Defendant-Appellee.
JUDGMENT
Appeal from the United States District Court for the
Northern District of California (San Francisco).
This cause came on to be heard on the Transcript of
the Record from the United States District Court for the
Northern District of California (San Francisco) and was duly
submitted.
On consideration whereof, it is now here ordered and ad-
judged by this Court, that the judgment of the said District
Court in this cause be, and hereby is AFFIRMED.
Filed and entered Thursday, October 07, 2004.
A TRUE COPY
Cathy A. Catterson
Clerk of Court
ATTEST
JAN 13 2005
by: illegible signature
Ta
EXHIBIT 5
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
[Filed Jan 05, 2005]
No. 03-15836
D.C. No. CV-01-00895-MJJ/JL
TIMOTHY GIBLER,
Plaintiff-Appellant,
v.
Jo ANNE B. BARNHART,
Commissioner of Social Security Administration,
Defendant-Appellee.
| ORDER
Before. CUDAHY,” GRABER, and FISHER, Circuit
Judges.
Judges Graber and Fisher have voted to deny the petition
for rehearing en banc and Judge Cudahy has so recom-
mended.
The full court has been advised of the petition for rehearing
en banc and no judge of the court has requested a vote on it.
The petition for rehearing en banc is DENIED.
* The Honorable Richard D. Cudahy, Senior Circuit Judge for the
United States Court of Appeals for the Seventh Circuit, sitting by
designation.
8a
EXHIBIT 6
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
[Filed Oct. 7, 2004]
No. 03-15836
D.C. No. CV-01-00895-MJJ/JL
TIMOTHY GIBLER,
Plaintiff-Appellant,
v.
JO ANNE B. BARNHART,
Commissioner of the Social Security Administration,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Martin J. Jenkins, District Judge, Presiding
Submitted October 5, 2004"
San Francisco, California
MEMORANDUM”
Before: CUDAHY,”** GRABER, and FISHER, Circuit Judges.
* This disposition is not appropriate for publication and may not be
cited to or by the courts of this circuit except as provided by Ninth Circuit
Rule 36-3.
** This panel unanimously finds this case suitable for decision without
oral argument. Fed. R. App. P. 34(a)(2).
“ The Honorable Richard D. Cudahy, Senior Circuit Judge for the
United States Court of Appeals for the Seventh Circuit, sitting by
designation.
9a
Plaintiff Timothy Gibler appeals from the district court's
order denying his motion for relief from judgment under
Federal Rule of Civil Procedure 6003). We review only the
grounds raised in the motion and cannot review the merits of
the underlying judgment, Cel-A-Pak v. Cal. Agric. Labor
Relations Bd,, 680 F.2d 664, 668 (9th Cir. 1982) (per curiam),
and the standard is abuse of discretion, Bateman v. U.S.
Postal Serv., 231 F.3d 1220, 1223 (9th Cir. 2000).
Plaintiff sought relief from the judgment on the basis of
two legal arguments. “Legal error does not by itself warrant
the application of Rule 60(b),” however. Plotkin v. Pac.
Tel. & Tel. Co., 688 F.2d 1291, 1293 (9th Cir. 1982). Even
assuming that Plaintiff's Legal arguments had merit, the
district court did not abuse its discretion in concluding that he
had failed to demonstrate to that court “extraordinary circum-
stances which prevented” him from filing an appeal. /d.
Plaintiff also argues that we should reconsider a prior
panel’s ruling that he is not entitled to equitable tolling of the
period for appeal of the underlying judgment. The period for
filing a notice of appeal is subject to tolling only as provided
in Federal Rule of Appellate Procedure 4, Torres v. Oakland
Scavenger Co., 487 U.S. 312, 315, 317 (1988), the conditions
of which Plaintiff did not meet.
AFFIRMED.
A TRUE COPY
Cathy A. Catterson
Clerk of Court
ATTEST
JAN 13 2005
by: illegible signature
Deputy Clerk
10a
EXHIBIT 7
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
[Filed Sep. 9, 2004]
No. 03-15836
D.C. No. CV-01-00895-MJJ/JL
TIMOTHY GIBLER,
Plaintiff-Appellant,
¥.
JO ANNE B. BARNHART,
Commissioner of Social Security Administration,
Defendant-Appellee.
ORDER
This case shall be submitted on the briefs and record,
without oral argument, on October 5, 2004, in San Francisco,
California, pursuant to Fed. R. App. P. 34(a)(2).
FOR THE COURT
CATHY A. CATTERSON
CLERK OF COURT
By: /s/ [Illegible]
Deputy Clerk
lla
EXHIBIT 8
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
[Filed Sep. 9, 2004]
No. 03-16901
D.C. No. CV-03-00823-MJJ
TIMOTHY GIBLER,
Plaintiff-Appellant,
wi
Jo ANNE B. BARNHART,
Commissioner of Social Security Administration,
Defendant-Appellee.
ORDER
This case shall be submitted on the briefs and record,
without oral argument, on October 5, 2004, in San Francisco,
California, pursuant to Fed. R. App. P. 34(a)(2).
FOR THE COURT
CATHY A. CATTERSON
CLERK OF COURT
By: /s/ [Illegible]
Deputy Clerk
l2a
EXHIBIT 9
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
{Filed April 28, 2004]
Nos. 03-15836, 03-16901
DC# CVO | -895-MJJ
Northern District of California
(San Francisco)
TIMOTHY GIBLER,
Plaintiff-Appellant,
Vv.
WILLIAM A. HALTER, Acting Commissioner of the
Social Security Administration,
Defendant-Appellee.
Before: O'SCANNLAN and BEA, Circuit Judges
Appellant's emergency motion for an order staying further
administrative proceedings pending review of these related
appeals is granted, pursuant to the agreement of the parties, as
follows only:
Appellant is not required to respond to the March
2004 inquiry for information;
The Social Security Administration will not take any
action concerning appellant’s benefit record;
The Social Security Administration will not send any
correspondence to appellant; and
13a
4. If appellant inadvertently receives a systems gener-
ated letter from the Social Security Administration
while these appeals are pending, he shall not be re-
quired to provide any response.
Appellant's request that this stay continue beyond disposi-
tion of these appeals through any remanded proceedings is
denied without prejudice to seeking such relief, if appropriate,
from the agency.
These related appeals are ready for calendaring.
Ida
EXHIBIT 10
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
[Filed July 07, 2003]
CIVIL ACTION NO. C 03-15836
STEVEN BRUCE, EsQ. CBN 70300
People With Disabilities Foundation
507 Polk Street, Mezzanine
San Francisco, CA 94102
Tel (415) 931-3070
(415) 931-2828
Attorneys for Appellant
TIMOTHY GIBLER
Appellant,
VS.
JO ANNE B. BARNHART, COMMISSIONER OF
THE SOCIAL SECURITY ADMINISTRATION
Appellee.
DECLARATION OF STEVEN BRUCE IN SUPPORT OF
OPPOSITION TO MOTION TO DISMISS
I, Steven Bruce am the attorney for Appellant and am duly
licensed to practice before this Court and hereby declare as
follows:
1. That on or about the time of Judgement in District
Court this case, October 17, 2002, my client was
undergoing severe exacerbation of his disability
(psychotic and schizophrenia). He was in contact
15a
periodically with the office and went back to the
mid-west.
2. Around that point in time, October, November, and
December, 2002, Mr. Gibler had tried to commit sui-
cide on at least two occasions and was having severe
problems with agitation, including panic attacks and
suicide attempts.
3. It was and is my opinion as his attorney that I did not
have clear authority to file the appeal at that time but
did have authority to file a Motion for Relief from
Judgment in which I clearly stated the Motion was
timely filed due to my client’s disability (mental
condition).
4. The United States attorney and Office of General
Counsel of Appellee fled no response to my Motion
for Relief from Judgment within the time permitted.
5. I called Claire Mueller, the paralegal in charge of
Social Security cases at the U.S. Attorney’s office in
San Francisco to ask why there was no opposition. I
was informed that it was overlooked and that ap-
pellee asked for a stipulation for more time to fide a
response. I signed the stipulation after which time
the Hon. Martin J. Jenkins signed the stipulation to
extend time.
6. The Motion was under submission for a long while
after which time a timely Notice of Appeal was filed.
I was convinced at that time that I had Mr. Giblet’s
clear authority to file the appeal herein.
I, Steven Bruce declare under penalty of perjury under the
laws of the United States that the foregoing is true and correct
to the best of my knowledge; and that this Declaration was
executed on July 7, 2003 at San Francisco.
/s/ Steven Bruce
STEVEN BRUCE
16a
CERTIFICATE OF SERVICE
I certify that I served Appellant’s Declaration of Steven
Bruce in Support of Opposition to Motion to Dismiss by
mailing two copies of the document to their attorney on this
date addressed as follows: ©
GERALYN A. GULSETH, Esq.
Social Security Administration
333 Market Street, Suite 1500
San Francisco, CA 94102
Executed on July 7, 2003 in San Francisco, California.
/s/ Carolyn Pruitt
CAROLYN PRUITT
17a
EXHIBIT 11
IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA
[Filed Sep. 22, 2003]
No. C 03-0823 MJJ
TIMOTHY GIBLER,
Plaintiff,
Vv.
JO ANNE B. BARNHART,
Defendant.
ORDER DISMISSING PLAINTIFF’S SECOND
AMENDED COMPLAINT WITH PREJUDICE
Pursuant to the Court’s August 21, 2003 Order, Plaintiff's
Second Amended Complaint is DISMISSED with prejudice;
in addition, the Court declines to consider Plaintiff’s “cor-
rected” Second Amended Complaint, which was submitted
without leave of Court.
IT IS SO ORDERED
Dated: September 22, 2003
/s/ Martin J. Jenkins
MARTIN J. JENKINS
UNITED STATES DISTRICT JUDGE
18a
EXHIBIT 12
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DSTRICIT OF CALIFORNIA
[Filed April 16, 2003]
No. CO1-0895 MJJ
TIMOTHY GIBLER,
| Plaintiff,
Ve
JO ANNE B. BARNHART,
Defendant.
ORDER DENYING PLAINTIFF’S MOTION FOR
RELIEF FROM JUDGMENT
INTRODUCTION
On October 16, 2002, the Court denied Plaintiff's motion
for summary judgment and granted summary judgment in
favor of Defendant (“October Order”). Now before the Court
is Plaintiffs motion for relief from judgment pursuant to
sections (b)(2), (b)(4) and (b)(6) of Federal Rule of Civil
Procedure 60. See Motion at 1:24. However, the only appli-
cable provision under these circumstances is 60(b)(6), which
provides for relief from judgement for “any . . . reason
justifying” such relief.' This motion requires the Court to de-
' Section (b)(2) provides relief from judgment where “newly discov-
ered evidence which by due diligence could not have been discovered in
time to move for a new trial under Rule 59(b).” See also Riviera v. M/T
Fossarina, 840 F.2d 152 (9th Cir. 1988) (‘newly discovered evidence’
19a
termine whether Plaintiffs bases for relief from judgement
constitute “extraordinary circumstances.” Lafarge, 791 F.2d
at 1338. having considered the briefing in this matter, the
Court DENIES Plaintiff's motion.
ANALYSIS
A. Matthews v. Eldridge
In denying (Plaintiffs procedural due process claim, the
Court relied on the three-Dart balancing test outlined by the
Supreme Court in Matthews v. Eldridge, 424 U.S. 319
(1976):? See October Order at 8:5-14:25. Plaintiff contends
that Matthews has been overruled by the Supreme Court's
more recent decision in Dusenbery v. United States, 534 1.J.S.
161 (2002). See Motion at 2:5-16. The Court disagrees.
In Dusenbery, Supreme Court declined to apply the Mat-
thews balancing test to determine “the adequacy of the means
employed by the Federal Bureau of Investigation (“FBI”) to
provide notice to a federal prisoner of his right to contest the
administrative forfeiture of property seized (luring the execu-
tion of a search warrant for the residence where he was ar-
normally refers to evidence of facts in existence at the time of trial of
which the aggrieved party was excusably ignorant’). Here, Plaintiff offers
no newly discovered evidence. Section (b}(4) provides for relief from
judgment where “the judgment is void.” Plaintiff offers no explanation as
to why the Court’s judgment would be void. Moreover, Plaintiff cannot
plead under (b)(2) and (b)(4) if he chooses to plead under (b\(6). See
Lafarge Conseils Et Utudes, S.A. v. Kaiser Cement Gypsum Corp.,79 |
F.2d 1334,1338 (9th Cir. 1986) (“{a] motion brought under (O(b)(6) must
be based on grounds other than those listed in the preceding clauses”).
2 In Matthews Court balanced the following factors: (1) the private
interest that will be affected by the official action; (2) the risk of an
erroneous deprivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute procedural safe-
guards; and (3) the Government's interest, including the function involved
and the fiscal and administrative burdens that the additional or substitute
procedure requirement would entail. /d. at 334-35.
20a
rested.” Jd. at 163.° The Court held that although Matthews
had been used to evaluate due process claims in a variety of
contexts, the decision was not (meant to establish an “all-
embracing test for deciding due process claims.” /d. at 168.
However, the Dusenbery Court never questioned the appro-
priateness of applying Matthews in the Social Security con-~
text, which is the very context in which the case itself arose.
See id. at 167-68. Therefore, Plaintiff's motion fur relief from
Judgment on this ground is denied.
B. Schweiker v. Chilicky _
The Court also relied on the Supreme Court’s decision in
Schweiker v. Chilicky, 487 U.S. 412 (1988), which held that a
Bivens remedy (money damages against government offi-
cials) was unavailable, as a matter of law, based on alleged
due process violations in the denial of social security benefits
because “Congress . . . has address the problems created by
state agencies’ wrongful termination of disability benefits.”
Id. at 429; see also October Order 13:7-14:1. Plaintiff con-
tends that he “does not fall within the class of [p]laintiffs
address by the Supreme Court in... Schweiker... 2’ Motion
at 5:3-4. Specifically, he argues that, unlike the plaintiffs in
Schweiker, he was denied benefits based on “work review,”
not a “continuing disability review.” Motion at 4:21-5:3.
However, this factual distinction does not affect the applica-
bility of the holding in Schweiker to the matter currently be-
fore the Court. Therefore, Plaintiffs motion for relief from
judgment on this ground is denied as well.
CONCLUSION
Based on the above analysis the Court DENIES Plaintiff’s
motion for relief from judgment.
* Rather, the Court applied a test of reasonableness under all the cir-
cumstances. See Dusenbery, 534 U.S. at 167-71 (citing Mullane v. Central
Hanover Bank & Trust Co., 339°U.S. 306, 314 (1950)).
IT IS SO ORDERED.
Dated: April 16, 2003
/s/ Martin J. Jenkins
MARTIN J. JENKINS
UNITED STATES DISTRICT JUDGE
22a
EXHIBIT 13
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
[Filed October 16, 2002]
No. C 01-0895 MJJ
TIMOTHY GIBLER,
Petitioner,
JO ANNE B. BARNHART,
acting Commissioner of the Social Security Administration,
Respondent.
ORDER DENYING PLAINTIFF’S MOTION
AND GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
INTRODUCTION
Before this Court is a motion and cross motion for sum-
mary judgment pursuant to Rule 56 of the Federal-Rules of
Civil Procedure. In connection with his motion, Plaintiff
Timothy Gibler (“Plaintiff’) seeks a variety of relief, include-
ing a request for attorney’s fees and costs pursuant to the
Equal Access for Justice Act, 28 U.S.C. § 2412. (“EAJA”).
The motions require” the Court to determine whether Plaintiff
is entitled to judgment as a matter of law on his claim the
Social Security Administration (“SSA” or “Defendant”) vio-
lated his due process rights in terminating his disability
benefits on the basis that his work singing in a church choir
was substantial gainful activity (“SGA”) which rendered him
ineligible for benefits, and-then failing to immediately pro-
vide a hearing with an Administrative Law Judge (“ALJ”) to
23a
review the termination. Having read and considered the
papers,’ and having heard the parties at oral argument, the
Court DENIES Plaintiff's motion for summary judgment and-
GRANTS Defendant's dross motion.”
FACTUAL BACKGROUND
Plaintiff received social security benefits under Title II of
the Social Security Act (“Title II”) from on or about 1979
because of a severe psychiatric disorder. Plaintiff underwent
several continuing disability reviews since he became entitled
to benefits. Each review resulted in a finding there had been
no improvement in his psychiatric condition.
On July 26, 2000, Defendant provided Plaintiff with a
Notice of Proposed Decision, informing him his reported
work could affect his benefits and that he had ten (10) days in
which to provide more information before a final decision
and notice of termination. See Declaration of Donald Worms
(“Worms Decl.”) at § 3, E h. 2. Defendant issued this notice
on the basis of Plaintiffs claim of sporadic employment as .a
signer in a church choir since 1979. The notice explained he
had used up his practice work periods by 1988, his records
' Together with his motion, Plaintiff-requests the Court take judicial
notice of two things: 1). there are many Social Security beneficiaries who
are on both the program under Title JI of the Social Security Act (“Title
II”), which has no income and resources eligibility requirements, and the
program under Title of the Social Security Act program which does have
income and resource eligibility requirements; (2) the Administrative Law
Judge (“ALJ”) does not have authority or jurisdiction to adjudicate
constitutional claims. The Court DENIES Plaintiff's request as these are
facts which are not of the type judicially noticed. See Fed. R. Evid. 201(b)
(defining judicial noticed facts as those “not subject to reasonable dispute
in that it is either (1) generally known within the territorial jurisdiction of
the trial court or (2) capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be questioned.”).
? Because the Court DENIES Plaintiff's motion, the request for relief,
including attorney’s fees and costs under the EAJA, is also DENIED.
24a
reflecting earnings of $11,319 for 1988, $3,790 for 1989
and $13,210 in 1990. See Declaration of Cheryl Jacobson
(“Jacobson Decl.”) at § 4. Defendant did not take Plaintiff s
medical record into account in making its termination deci-
sion, terminating benefits instead on grounds he completed of
a 9-month trial work period, as opposed to a change in medi-
cal condition.
The ten (10) days expired without any new submissions
from either Plaintiff or his attorney, although his attorney had
visited the SSA district office in San Francisco sometime in
August 2000 to review and copy the file. See Worms Decl. at
q 5. Records indicate, social security payments for Plaintiff
stopped in October 2000. See Jacobson Decl, at | 8. No final
notice had been issued, bit, at that time, his attorney filed a
request for reconsideration. In addition, Plaintiff, through his
attorney, contacted staff in multiple departments of the SSA,
requesting he remain on check status and have a medical
examination to evaluate his continuing disability. Neither,
however, was forthcoming.
On February 13, 2001, Plaintiff received the Notice of
Termination informing him he no longer qualified for social
security benefits because he had been engaging in SGA as of
January, 1988, and his entitlement to benefits had therefore
ended as of March 1988. This letter also informed Plaintiff of
his right to appeal the decision within sixty days and/or file a
new application.
On March 1, 2001, Plaintiff fled this instant action seeking
review of the termination of benefits, and immediate rein-
statement of benefits. See Complaint at 11:19-22; see also
August Order at 1:22-24 (describing motion as seeking
immediate reinstatement of benefits). At or about the same
time, Plaintiff filed a motion for reconsideration of the termi-
25a
nation with the SSA, which it denied on March 23, 2001.’
Plaintiff then requested a hearing with an ALJ to appeal the
decision.
In the interim, Defendant moved to dismiss the instant
action for lack of subject matter jurisdiction, arguing Plaintiff
had failed to exhaust all administrative remedies as required
by the Social Security Act and did not raise a colorable
constitutional due process claim. After hearing the parties and
considering the papers, the Court found Plaintiff had not
exhausted his administrative remedies and, on that basis, the
Court rejected almost all of his ‘constitutional claims. It
denied the motion, however, upon finding that Plaintiff raised
at least a colorable constitutional claim the procedures in
place for challenging an adverse SSA determination through
an ALJ hearing, as applied to him, violated his due process
rights, See July 11, 2001 Order Denying Motion to Dismiss
(“July Order”) at 16-22-17:3. This finding was based on the
length of time it took to obtain an ALJ hearing after an
adverse SSA determination and evidence Plaintiff may men-
tally decompensate before he was granted a hearing, which
could make such a hearing so unreasonably delayed as to
violate due process. See id. at 12:16-17:3. However, the Court
expressly declined to reach the issue of whether the SSA’s
scheme for review was actually unconstitutional as applied to
Plaintiff. See id. at 16:20-22.
After the July Order issued, the A notified Plaintiff his
appeal of the termination would be heard on August 27, 2001.
At or about the same time, Plaintiff moved for declaratory
and preliminary injunctive relief in the instant action,
requesting the Court order the SSA to reinstate him to
Medicare and all other Title II benefits within ten days, and
award him costs and attorney’s fees. The Court denied the
* During the reconsideration, Defendants transferred Plaintiff's file to
their Office of Central Operations in Baltimore, Maryland.
26a
motion based upon its findings, as articulated in the July 11
Order, that it did not have jurisdiction to hear claims relating
to past and present entitlement of benefits: See August 16,
2001 Order Denying Application for Temporary Restraining
Order (“August Order”) at 6:13:16. The Court rejected the
government's argument, however, that Plaintiffs due process
claim was moot because of the SSA’s recent decision to grant
Plaintiff an ALJ hearing on August 27, 2001. See id. at 8:6-
21. It made its, decision because it was not absolutely clear
the allegedly wrongful behavior would not recur and because
it was not clear whether Plaintiff's due process rights were
already violated by the delay. See id.
On August 27, 2001, Plaintiff presented his appeal to the
ALJ After consideration of all of the evidence presented, the
ALJ found Plaintiff had completed a 9-month trial work
period in 1981, his disability ceased as of January 1988 due to
his demonstrated ability to engage in substantial gainful
activity, and he was not entitled to benefits under Title II as
of April 1988. See Plaintiffs Opposition to Cross Motion,
Reply to Motion (“Mot. Rep.”), Exh. 6 (ALJ Decision). The
ALJ further found Plaintiff had been disabled under Title II
since January |, 1991, and through August 30, 2001; he was
entitled to both monthly benefits and Medicare at all times
since January 1991; and although Plaintiff should not have
been paid benefits between April 1988 through December
1990, the SSA would waive any overpayment of benefits
because Plaintiff was not “at fault,” and because Plaintiff was
fiscally incapable of covering his ordinary living expense. See
id. Social security payments were restarted on August 31,
2001. See Jacobson Decl. at §§ 8-9.* The ALJ Decision
became final when Plaintiff allowed the time to appeal lapse
without seeking appeal.
* Plaintiff Medicare coverage had been terminated in April 2001, and
was restarted in November 2001. See Jacobson Decl. at €€ 8, 10.
27a
On November 8, 2001, the Clerk of the Court entered
judgment because the Court had denied Plaintiff's. motion for
declaratory relief and injunctive relief Plaintiff moved for
relief from the Clerk’s judgment pursuant to Rule 60 of the
Federal Rules of Civil Procedure and requested the Court
entered judgment in his favor. He further requested attorney’s
fees and costs under the EAJA.
The Court granted relief from judgment on January 11,
2002, on grounds the entry of judgment was in error. See
January 11, 2002 Order Granting Motion for Relief from
Judgement (“January Order”) at 4:18-5:1. Indeed, Plaintiffs
due process claim remained and, as such, entry of judgment
was premature. See id. On the same basis, the Court denied
Plaintiff's request for entry of judgment in his favor. See id.
at 5:1 n.3. It further denied Plaintiff's request under RAJA.
on a finding Plaintiff failed to establish it was a prevailing
party, as he must. See id. at 6:1-9:6.
LEGAL STANDARD
Summary judgment is appropriate if there is no genuine
issue as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. Pro. 56(c). The
moving party bears the initial burden of establishing that
there is no genuine issue of material fact. /d.; Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). If the moving party does
not bear the burden of proof at trial, the initial burden of
showing that no genuine issue of material fact remains may
be discharged by demonstrating that “there is an absence of
evidence to support the nonmoving party’s case.” /d. at 325.
The moving party is not required to produce evidence
showing the absence of genuine issues of material fact. See
Lujan v. National Wildlife Fed’n, 497 U.S. 871, 885 (1990).
Nor must the moving party support his or her own motion
with evidence negating the non-moving party’s claim. See id.
28a
After the moving party makes a properly supported motion,
the responding party must present specific facts showing that
contradiction is possible. British Airways Bd. v. Boeing Co.,
585 F.2d 946, 950-52 (9th Cir. 1978). It is not enough for the
responding party to point to the mere allegations or denials
contained in the pleadings. Instead, it must set forth, by
affidavit or other admissible evidence, specific facts demon-
strating the existence of an actual issue for trial. The evidence
must be more than a mere “scintilla;” the responding party
must show that the trier of fact could reasonably find in
its favor. Anderson vy. Liberty Lobby, Inc., 477 U.S. 242,
252 (1986). However, in. reviewing a motion for summary
judgment, the Court does not make credibility determinations
with respect to evidence offered, and is required to draw all
inferences in the light most favorable to the non-moving
party. See T W Elec. Serv., Inc. v. Pacific Elec. Contractors
Ass'n, 809 F.2d 626, 630-31 (9th Cir. 1987). Summary
judgment is therefore not appropriate “where contradictory
inferences may reasonably be drawn from undisputed evi-
dentiary facts ... .” Hollingsworth Solderless Terminal Co. v.
Turley, 622 F.2d 1324, 1335 (9th Cir. 1980).
DISCUSSION
Plaintiff now moves for summary judgment on the due
process claim, arguing that by failing to consider medical
records prior to termination and instead terminating benefits
on grounds of SGA, Defendants violated Plaintiffs due
process rights. See Plaintiffs Motion for Summary Judgment
(“Mot.”). Indeed, according to Plaintiff, regardless of whether
the denial was non-medical, the SSA knew Plaintiff was
disabled ‘and should have reviewed Plaintiff's medical
records and confirmed Plaintiff was disabled. See id. More-
over, Plaintiff argues, by terminating benefits without a
hearing prior to termination, Defendant violated Plaintiffs due
process rights as he was not gainfully employed and was at
great risk of losing his livelihood, not having enough money
29a
to pay his rent, to pay for food or continued medical treat-
ment. See id. at 13-14. Given his condition argues Plaintiff,
the lapse of time, from the date first terminated to the date
Defendants reinstated benefits, was too long. See id. at 13.
Defendant opposes the motion and brings a cross motion
on grounds there is no outstanding case or controversy, OF
available remedy. See Defendant’s Opposition to Mot. and
Cross Motion (“Mot. Opp.””) at 4:1-7:6. It further contends
the SSA procedures are adequate and do not constitute a
violation of due process, even as applied to Plaintiff. See id.
at.7:7-15:28. In arguing no due process violation occurred,
Defendant asserts there is no factual dispute as to Plaintiff's
waiting period for his ALJ hearing and decision. See id.
at 8:20-22. The Court addresses each of the arguments
below, beginning with Defendant’s contention regarding
jurisprudence.
A. Article Ill
To satisfy Article HI standing requirements for a federal
court action; a plaintiff must show that he suffered an injury
in fact, that the injury is fairly traceable to the challenged
action of the defendant, and that it is likely a favorable deci-
sion would address the injury. See Friends of the Earth v.
Laidlaw Environ. Servs., 528 U.S. 167, 180-81 (2000). An
actual controversy must be .extant at all stages of review.
See Arizonans for Official English v. Arizona, 520 U.S. 43,
67 (1997).
Defendant argues there is no outstanding case or contro-
versy, or available remedy. See Mot. Opp. at 4:1-7:6.
Specifically, Defendants contend in August 2001, the AU
issued a mostly favorable decision by restarting his benefits,
* In his papers, Plaintiff claims there was a lapse of 458 days. It is un-
clear to the Court how Plaintiff came upon the 458 days figure as benefits-
terminated in October 2000, and payment resumed on August 31, 2001.
30a
paying hint retroactively owed benefits, and waiving recov-
ery of overpaid benefits for the years 19884 990. See id.
(citing ALJ Findings). Thus, according to Defendant, Plaintiff
already received the only remedies available to him under
Title Il, a hearing and reinstatement of benefits. See id. at
4:17-24.
Plaintiff contends his benefits were wrongfully terminated
by Defendant which intentionaily ignored pertinent informa-
tion proving disability. The Supreme Court, however, in
Schweiker v. Chilicky, 487 U.S. 412 (1988 ), found the
erroneous termination of social security disability benefits is
not the basis for a due process suit. See id. at 428-29. The
Supreme Court made this finding despite allegations state and
federal officials would, among other things, intentionally dis-
regard favorable dispositive evidence in terminating benefits.
See id. at 418.
Because the Supreme Court iias already deter .ed that even
where intentional conduct is involved, the wrongful termina-
tion of benefits does not constitute a basis for a due process
violation, Plaintiff's arguments, to the extent based on SSA’s
conduct in ignoring medical evidence when terminating
benefits do not form the basis of the due process claim. This
is especially true here since Plaintiff allowed the ALJ’s
decision to go final, without seeking appeal.
Having found that, Plaintiff premises part of his due
process claim on the time involved before the ALJ would
hear his appeal. That the appeal was heard on August 27,
2001, did not dispose of his due process claim entirely as
Plaintiff objects to the time already passed, namely since
March 2001, when he requested a hearing.° Indeed, this is the
“ According to Defendant, between March and August 2001, the aver-
age number of reques.s for hearings pending was 998, in San Francisco
alone. See Declaration of Serena Hong (“Hong Decl.”) at 45. The average
time between the request for hearing and the actual hearing was 244 days.
See id.
3la
precise ruling made by the Court with its August Order. See
August Order at 7:10-8:23. The Court, therefore finds, for the
second time, jurisprudence is not lacking.
B. Due Process Claim
A colorable Constitutional claim of due process violation is
anf exception to the jurisdictional limitations of the Act. See
Evans v. Chater, 110 F.3d 1480, 1483 (9th Cir. 1997) (find-
ing that “the exception applies to any colorable constitutional
claim of due process violation-that implicates a due process
right either to a meaningful opportunity to be heard or to seek
reconsideration of an adverse benefits determination”). The
fundamental requisite of due process of law is the opportunity
to be heard at a meaningful time and in a meaningful manner.
Goldberg v. Kelly, 397 U.S. 254, 267 (1970).
Due ‘process is “flexible and calls for such procedural pro-
tections as the particular situation demands?’ Matthews v.
Eldridge, 424 U.S. 319, 334 (1976). In determining whether
ihe SSA administrative procedures were constitutionally
sufficient, the Matthews Court balanced the following factors:
(1) the private interest that will be affected by the official
action; (2) the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards; and
(3) the Government’s interest, including the function involved
and the fiscal and administrative burdens that the additional
or substitute procedure requirement would entail. See id. at
334-35.
Instructive in the analysis of whether the administrative
process involved here violated Plaintiffs due process rights
are two cases: Goldberg y. Kelly, 397 U.S. 254 (1970) and
Matthews v. Eldridge, 424 U.S. 319 (1976). The Supreme
Court in Goldberg determined the procedures involved in.
denying welfare benefits to its recipients violated due proc-
ess when it ;vovided for no pre-termination hearing. See
32a
Goldberg, 397 U.S. at264. In considering the first factor, the
Court found the private interest impacted by the denial of
benefits was great as welfare “provid[ed] the means to obtain
essential food, clothing, housing and medical care.” /d. at
264. According to the Court, termination of aid pending
resolution of a controversy over eligibility could deprive an
otherwise eligible recipient of the “very means by which to
live while he waits.” /d.
With respect to the second factor, the Goldberg Court
determined a pre-termination hearing was necessary because
“credibility and veracity are at issue” and “written submis-
sions arc a wholly unsatisfactory basis for decision.”
Goldberg, 397 U.S. at 268-69. Finally, it found important
government interest were promoted by affording welfare
recipients a pre-termination evidentiary hearing, especially
since promoted general welfare of the public and secured the
“blessings of liberty to ourselves and our posterity.” /d. at
264-65. Any interest in conserving fiscal and administrative
resources, it determined, were not overriding in the welfare
context, and any drain could be reduced by developing
procedures for prompt pre-termination hearings and by skill-
ful use of personnel and facilities. See id. at 266.
In Matthews, the Supreme Court found the procedures
followed by the SSA in terminating Title 1T disability
benefits were constitutionally valid, and that an evidentiary
hearing was not required prior to termination to protect a
recipients due process fights. See Matthews, 424 U.S. at 349.
The Court found the impact on claimant’s interest in the
uninterrupted source of income pending a final administrative
decision on his claim was less devastating than that of welfare
recipients. See id. at 34043. The basis for its determination
was that eligibility for disability was not based on a financial
need, and, as such, a disabled worker’s need was “likely to be
less than that of a welfare recipient.” Matthews, 424 U.S. at
342. Indeed, although the Court recognized terminated
33a
recipients and their families could suffer “significant” hard-
ships, the recipient would have the “possibility of access to
private resources, [and) other forms of government assistance
_...” Id. “In view of these potential sources of temporary
income, there is less reason here than in Goldberg to depart
from the ordinary principle . . . that something less than an
evidentiary hearing is sufficient prior to adverse adminis-
trative action.” /d. at 343. The Court made this determination
despite having recognized that the delay between a request
for hearing before an AU and a decision on the claim was
between ten (10) and eleven (11) months, and the time
between the actual termination of benefits and a final decision
after hearing exceeded a year. See id. at 342.
In considering the second factor, the Matthews Court
evaluated the impact of adding a pre-termination hearing to
the fairness and reliability of the procedures, as it existed.
See Matthews, 424 U.S. at 343-44. It determined a pre-
termination hearing would add little to the procedures already
in place because the type of determination already required in
the continued eligibility determinations of social security
disability benefits involved “sharply focused and easily
documented” matters, unlike the credivility determinations
made by administrators in the welfare arena as discussed in
Goldberg. Matthews, 424 U.S. at 343. The factors considered,
including whether the claimant could engage in SGA, were
described as “amenable to effective written presentation.” /d.
at 344 n.28.
Finally, the Supreme Court determined the administrative
burden and other societal costs associated with requiring a
pre-termination hearing would be great. See Matthews, 424
U.S. at 347. It further found the constitutional system did
not require the imposition of judicial type procedures on
administrative action to assure fairness, and that all that is
required is that “the procedures be tailored, in light of the
decision to be made to “the capacities and circumstances of
34a
those-who are to be heard [citation omitted] to insure that
they are given a meaningful opportunity to present their
“case.’” Jd. at 348-39. It concluded as follows:
In assessing what process is due in this case, substantial
weight must be given to the good-faith judgments of
individuals charged by Congress with the administration
of social welfare programs that the procedures they have
provided assure fair consideration of the entitlement
ciaims of individuals. [citation omitted]. This is espe-
cially so where, as here, the prescribed procedures not
only provide the claimant with an effective process for
asserting his claim prior to any administrative action, but
also assure a right to an evidentiary hearing, as well as to
subsequent judicial review, before the denial of his claim
becomes final.
Id. at.349. With these two cases in mind, the Court considers
the factors necessary to determine whether the administrative
procedure here violated plaintiff's due process rights.
1. Plaintiffs Interest Affected by Defendant’s Conduct
In the context of reviewing the procedure in connection
with the administration of welfare benefits, the Goldberg
Court found the effect of the defendant’s conduct on the
welfare recipient’s interest was great, as it went to the core of
the recipient’s ability to exist. See Goldberg, 397 U.S. at 264
(finding “termination of aid pending resolution of a contro-
versy over eligibility may deprive an eligible recipient of the
very means by which to live while he waits. Since he lacks
independent resources, his situation becomes immediately
desperate.”). In the context of reviewing procedures in
connection with the administration of disability benefits, the
Matthews Court found the effect of the SSA’s conduct on the
recipient was less devastating, because disability recipients
had access to potential sources of temporary income as the
35a
benefit was not based on financial need. See Matthews, 424
U.S. at 340-43.
Plaintiff here was a recipient of disability, not welfare,
benefits. As such, the Matthews Court’s characterization of
the affect of the SSA’s conduct on disability benefit
recipients would appear to apply. Plaintiff, however, argues it
does not. Specifically, the termination of benefits here
affected Plaintiff by rendering him unable to pay rent, buy
food or seek medical assistance. See Mot. Rep, at 9:16-10:1.
According to Plaintiff, his unique circumstances equated
him the welfare recipients in Goldberg, about whom the
Supreme Court found termination of benefits would have a
profound impact.
Defendant counters thé instant action is exactly like the
scenario discussed in Matthews and the Matthews Court
characterization should apply. Specifically, according to
Defendant, Plaintiff had personal resources, having earned
roughly $9,570 in 1999, and $7,120 in 2000. See Jacobson
Deck at § 4. In addition to the money earned, Plaintiff further
received social security benefits for most of 2000. See id. at
44 5, 8. Moreover, like the plaintiff in Matthews, Defendant
contends Plaintiff had access to public assistance pend-
ing further administrative review, having in fact applied to
other assistance during the time terminated. See Mot. Rep. at
10:14-15.
While sympathetic to the dire circumstances alleged to-
have been faced by Plaintiff, the Court is not persuaded
Matthews does not apply. Specifically, with its cross motion,
Defendant f submits, and Plaintiff does not contest, evidence
of some personal resources, albeit not in any significant
amounts. Plaintiff himself further attested he had in fact
applied-for other public assistance during the period termi-
nated. As such, like in Matthews, while the hardship suffered
by Plaintiff with-the erroneous termination of benefits may
have been significant, Plaintiff here had “potential sources of
36a
temporary income.” On this basis, the Court is not persuaded
by Plaintiff to depart from the findings of the Matthews
Court. With this determination in mind, the Court turns to the
remaining factors.
2. Probative Value of Additional Procedures
Although unclear, Plaintiff suggests two additional proce-
dures which he contends are required here to protect his due
process rights. First, by contesting the delay between termi-
nation and the ability to appear before the AU during which
Plaintiff received no benefits, Plaintiff contends termination
prior to hearing violates his due process rights, especially
since, in his case, he was without benefits for nearly a year
since termination. As such, the first additional procedure
suggested is an immediate review, or, the imposition of a pre-
termination hearing.
Second, Plaintiff argues the SSA violated his due process
rights by failing to consider medical evidence demonstrating
he was disabled. See Mot. at 7:27-8:11. As such, Plaintiff
appears to suggest requiring a mandatory review of medical
evidence, even when termination is based on non-medical
grounds. The Court, in keeping with the Matthews factors,
considers the probative value of both additional procedures in
turn below.
a. Immediate Review by ALJ and/or Pre-Termination
Hearing
In determining a pre-termination hearing was not required
for the social security procedures to comport with due
process, the Matthews Court found that in the context of
administering social security disabi'ity benefits, a hearing was
not required to effectively establish eligibility because evi-
dence was more amendable to written, as opposed to oral,
presentations. See Matthews, 424 U.S. at 343-44, n.28;
compare Goldberg, 397 U.S. at 269 (folding written presen-
37a
tations wholly unsatisfactory where criteria for eligibility
included witness credibility amid veracity).
Here, Plajntiff does not assert the SSA failed to give him
time to submit written presentations as to why benefits should
not be terminated before the benefits were in fact terminated..
Plaintiff further does not provide that had he followed the
procedure available, namely submitting written presentations
as to eligibility, the procedure would have been insufficient.
Instead, the record seems to indicate otherwise. According to
Defendant, Plaintiff was sent a Notice of Proposed Decision
to terminate, with instructions stating he could submit further
evidence for consideration within ten (10) days, See Worms
Decl., Exh. 2. Plaintiff’s counsel did in fact review the file
after receipt of notice, but did not make further submissions.
See id. a4 5.
There is no evidence showing that had he submitted the
medical evidence establishing disability, the SSA would have
decided not to terminate benefits. However, by having failed
to submit written presentations when afforded the oppor-
tunity, Plaintiff is unable to demonstrate that the criteria for
eligibility in the administration of disability benefits was not
amenable to written presentations. Moreover, with the
declarations of Plaintiff and doctors Plaintiff does submit,
Plaintiff appears to support the Matthews Court decision that
the criteria in determining eligibility to disability benefits is
easily documented. In light of this finding, the Court fails to
see why either an immediate appeal or a pre-termination
hearing would have any probative impact on the process
already in place, even as applied to Plaintiff.
b. Review Medical Evidence Before Termination on
SGA Basis
Defendant counters the procedures taken by it were in
compliance with terminations based on non-medical reasons,
such as terminations based on a finding of SGA. See Mot.
38a
Opp. at 14:9-45:4. Plaintiff does not dispute the procedures
followed by Defendant in Processing the appeal complied
with terminations for non-medical reasons, only arguing
Defendant knew Plaintiff was still disabled yet failed to
consider medical evidence before terminating benefits. See
Plaintiff's Reply. Opposition to Cross Motion (“Mot. Rep.”)
at 2:15-3:9.
As determined before, the Court finds Plaintiff failed to
frame a due process violation,’ but instead raises the issue of
whether current SSA regulations require medical evidence to
be taken into account before termination of his benefits on a
non-medical basis. Plaintiff's argument requires an analysis
of current SSA regulations and their applicability in his case,
and does not raise a constitutional issue. See July Order at
9:9-11:2.
Moreover, wrongful termination of benefits does not
constitute a violation of due process, even if there is evidence
the officers reviewing the criteria intentionally ignored
pertinent evidence establishing eligibility. See Schweiker, 487
U.S. at 418, 428-29. As such, the Court could not find the
failure to consider medical evidence before terminating for
non-medical reasons constitutes a due process violation,
especially since the failure to consider evidence is not the
basis of a violation at all, according to Schweiker. The Court
” The Court, in its order, instructed that to state a due process claim that
the review of medical evidence prior to termination of Title II benefits is
Constitutionally required, Plaintiff would need to allege that a failure to
take such evidence into account is so unreasonable that it affords him no
process at all. See July Order at 9:10-16 (citing, among others, Bateson v.
Geisse, 857 F.2d 1300, 1303 (9th Cir.1988) (holding that “to establish a
violation of substantive due process, a plaintiff is ordinarily required to
prove that a challenged government action was ‘clearly arbitrary and
unreasonable, ordinarily required to prove that a challenged government
action was ‘clearly arbitrary and unreasonable, having no substantial
relation to the public health, safety, morals, or general welfare,’”)).
39a
therefore finds there is little or no p-obative value to requiring
the Defendant review medical records when terminating
benefits for non-medical reasons.
3. Governmental Interest/Impact of Additional Procedure
on Fiscal and Administrative Burdens
In Matthews, the Supreme Court determined the adminis-
trative burden and other societal, costs associated with
requiring a pre-termination hearing Would be great, giving
“substantial” weight to the judgments of those persons
administering disability benefits. See Matthews, 424 U.S. at
347. Plaintiff does not, with his motion; provide the Court
with any indication why it should depart from the findings of
the Matthews Court, not even arguing the third factor should
be analogized to the Goldberg Court’s discussion in the
context of administering welfare benefits.
Defendant, on the other hand, provides evidence the burden
on the administration and society would be no different, if not
greater, than when the Matthews Court made its determi-
nation. Specifically, Defendant submits evidence there were
an average of 998 requests for AU hearings in San Francisco
alone between March 2001, when Plaintiff requested a
hearing, and August 2001, when the ALT scheduled and
heard the appeal. See Hong Decl. at ¥ 5. In addition, there was
an average wait of 244 days between requesting a hearing and
actually being heard. See id. As such, and according to
Defendant, by requiring a pre-termination hearing, costs
would be increased significantly and claimants waiting for
review might be adversely affected.
The Court finds Defendant’s arguments persuasive, Indeed,
there are a large number of claimants seeking hearings. The
cost of providing benefits until a hearing is had for each of
the claimants seeking review would be high as other
claimants waiting for review would be delayed further. This
is especially true where, as here, Plaintiff has not established
40a
his interests affected were greater than that of the Matthews
plaintiff, and that anything could be gained by the additional
procedures suggested. Compare Goldberg, 397 U.S. at 266
(finding where termination of welfare benefits involved, the
interest in conserving costs failed to override the impact of
terminating benefits, and the value of oral presentations in
assessing eligibility).
4. Other Grounds
a. Notices
Plaintiff further argues that the notices issued by the SSA
were unconstitutionally vague. As with the argument above,
Plaintiff made this argument earlier and the Court rejected it
See July Order at 8:25-9:8. The Court, therefore, again finds
this argument without merit.
b. Misrepresentations
Plaintiff alleges the SSA intentional misrepresented various
SSA rules and procedures concerning Medicare coverage and
the “Ticket to Work” provisions in depositions, briefing
submitted and at hearings in connection with this action. See
Mot. at 8:20-9:16. The Court is unclear how misrepresen-
tations, if any made, by the SSA in connection with this
action interfered with Plaintiff's due process rights as he was
represented, and he obtained an ALJ hearing within five
months of his request. On this ground, therefore, the Court
finds Defendant had not violated Plaintiff's due process
rights.
5. Conclusion
After careful consideration of the factors articulated in
Matthews, the Court is unable to see how Plaintiff is in a
situation different from any of the other thousands of recip-
ients of disability benefits, so much so that the application of
normal administrative procedures would violate his due proc-
ess rights when the Supreme Court has already determined
4la
that the exact same procedures comport with due process. It
also is not persuaded that the imposition of deadlines for ALJ
hearing, the imposition of a pre-pre-termination hearing, or
the requirement that the SSA review medical evidence prior
to termination for non-medical reasons would have any
impact on the system in play.
The Court makes these findings without diminishing the
difficulty Plaintiff claims to have faced during the termi-
nation. Indeed, it is aware, having been advised, Plaintiff
incurred credit card debt, borrowed money from friends and.
family just to survive, feared losing his home, and had to
terminate medical care with his preferred physician. The
same considerations have been considered by other courts
which have upheld the constitutionality of these very same
procedures. Indeed, the Supreme Court in Schweiker put it
best when it determined:
[T]hat suffering months of delay in receiving the income
on which one has depended for the very necessities of
life cannot be fully remedies by the “belated restoration
of benefits.” The trauma to respondents; and thousands
of others like them, must surely have gone beyond what
anyone of normal sensibilities would wish to see
imposed on innocent disabled citizens. Nor would we
care to “trivialize” the nature of he wrongs alleged in
this case. Congress, however; has addressed the prob-
lems created by state agencies’ wrongful termination of
disability benefits. Whether or not we believe that its
response was the best response, Congress is the body
charged with making the inevitable compromises re-
quired in the design of a massive and complex welfare
benefits program. Congress has discharged that
responsibility to the extent that it affects the case before
us, and we see no legal basis that would allow us to
revise its decision.
Schweiker, 487 U.S. at 428-29.
42a
Because Plaintiff fails to establish he is entitled to
judgment as a matter of law, the Court finds Plaintiff does not
prevail on his due process claim. Rather, Defendant succeeds
in demonstrating the process, as currently administered,
protects the due process rights of all, including Plaintiff
Accordingly, Plaintiffs motion is DENTED, and Defendant’s
motion is GRANTED.
CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s
motion for summary judgment; and GRANTS Defendants’
cross-motion. Plaintiffs prayer for relief, including the request
pursuant to the BAJA, is DENIED.
IT IS SO ORDERED.
Dated October 16, 2002
/s/ Martin J. Jenkins
MARTIN J. JENKINS
UNITED STATES DISTRICT JUDGE
43a
EXHIBIT 14
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
[Filed July 03, 2002}
No. C 01-0895 MJJ (JL)
DISCOVERY ORDER
TIMOTHY GIBLER,
Plaintiff,
Vv.
Jo ANNE B. BARNHART,
Commissioner of the Social Security Administration,
INTRODUCTION
Plaintiff Timothy Gibler’s Motion to Compel the Produc-
tion of Documents and Depositions' [Document Num-
ber 57 on the court’s docket] came on for hearing June 26,
2002. Steven Bruce appeared on behalf of Plaintiff. Geralyn
Gulseth appeared on behalf of Defendant, Jo Anne Barnhart,
Commissioner of Social Security, (“Defendant”). The court
heard oral argument and took the matter under submission.
BACKGROUND
I. Facts
Plaintiff is an individual with a severe psychiatric disorder
who has been receiving benefits under Title II of the Social
' There was also a request to shorten time in order for the motion to be
heard prior to the hearing on the motions for summary judgment. The
district court vacated the hearing date, which mooted the request to
shorten time, which is therefore denied.
44a
Security Act since 1979. While he was receiving benefits, Mr.
Gibler underwent several continuing disability reviews by
doctors contracted by the State Agency whose role, pursuant
to the Social Security Act, is to conduct medical evaluations
ensuring claimants remain disabled within the meaning of the
Act.
On January 15, 2000, Plaintiff filled out a form entitled
“Report of Work Activity-Continuing Disability”, where he
for the first time reported his sporadic paid work singing for
church choirs. He had been singing for the choirs since
October 1979. On July 26, 2000, the Social Security Admini-
stration (“SSA”) provided Gibler with a “Notice of Proposed
Decision” that his reported work could affect his benefits and
that he had ten days in which to provide more information
before a final decision and Notice of Termination. Gibler
contends, and the Acting Commissioner does not dispute, that
Gibler’s medical record was not taken into account in
reaching this determination. In December 2000 Plaintiff did
not receive his benefits check, and his attorney filed a Re-
quest for Reconsideration even though no Notice of
Termination had been issued. At that time, Gibler requested
that he continue receiving benefits. His request was denied.
Gibler, through his attorney, contacted staff in multiple de-
partments of the SSA during January and February 2001, to
request reinstatement of his benefits and a medical exami-
nation to evaluate his continuing disability, but neither was
forthcoming. On February 13, 2001, Gibler received a notice
informing him that he no longer qualified for Social Security
benefits due to his work activity, and that his benefits were
discontinued retroactive to March 1988. (Defendant’s Oppo-
sition to Plaintiff's Motion to Compel, pg. 2.). On August 30,
2001, the Administrative Law Judge (“AU”) affirmed Social =
Security’s finding that Plaintiffs disability had ceased in
January 1988 due to his work activity, (Defendant’s Oppo-
sition to Plaintiff's Motion to Compel,_pg. 2, lines 4-5).
uy
45a
II. Procedural History
On March 2001, Plaintiff filed a petition for Writ of
Mandamus, alleging that Defendant violated Plaintiff's due
process rights Under the Fifth Amendment of the United
States Constitution by failing to hold a hearing prior to the
termination of his disability benefits. Goldberg v. Kelly, 397
U.S. 254, 275 (1:978.) However, the court in Goldberg held
that the Due Process Clause requires that a recipient be af-
forded an adequate evidentiary hearing before the termination
of welfare benefits, and the fact that there is a subsequent
constitutionally fair p: ceeding does riot alter the result. /d. at
260. The Goldberg holding is restricted to welfare benefits, as
distinguished from disability benefits. /d.
In May 2001, the Defendant moved to dismiss the petition
for lack of subject matter jurisdiction. At that point, the
Defendant had denied Plaintiff's request for reconsideration,
but Plaintiff had not yet exhausted his administrative reme-
dies through the hearing and Appeals Council level of
administrative review. 20 C.F R. §§ 404.900, et.seq. (2001).
The district court (Hon. Martin J. Jenkins) denied the
Defendant’s motion to dismiss for lack of subject matter
jurisdiction on July 11, 2001. The court found no basis for
mandamus jurisdiction. The court also determined that it did
not have jurisdiction over Plaintiff's substantive claim for
past or present Social Security benefits. (Defendant’s Oppo-
sition to Plaintiff’s Motion to Compel, pg. 2, line 12).
However, the court found that Plaintiff had raised a
colorable constitutional issue that the delay in obtaining a
hearing violated his due process rights. The court did not rule
on the issue of whether the SSA’s scheme for review of a
work activity cessation was unconstitutional as applied to
Plaintiff.
In July 2001, Plaintiff moved for declaratory and pre-
liminary injunctive relief. The Defendant opposed Plaintiffs
46a
motion and informed the court that Plaintiff*s claim was still
pending before an ALJ at the hearing level of review. (De-
fendant’s Opposition to Plaintiffs Motion to Compel, pg. 2).
On August 10, 2001, the court denied Plaintiff's motion for
declaratory and preliminary injunctive relief. However, the
court found that the scheduled hearing did not render
Plaintiff's due process claim “moot”, because Plaintiff could
legitimately contend that his due process rights had already
been violated by the delay in obtaining a hearing and by the
fact that the AU did not address all of his claims. (Defen-
dant’s opposition to Plaintiff's Motion to Compel, pg. 2, lines
20-28).
After the court denied injunctive and declaratory relief, the
All held a hearing on August 27, 2001, and issued a decision
on August 30, 2001. (See Exhibit | of Plaintiff's Motion for
Relief From the Judgment). The All’s decision was mostly
favorable to Plaintiff. First, the AU affirmed Social Security’s
finding that Plaintiffs disability had indeed ceased in January
1988 due to his work activity. However, the AU found that
Plaintiff became disabled again in January 1991 and that he
continued to be disabled through the date of the August 2001
decision. Thus, Plaintiff was entitled to all of the benefits he
had received since January 1991, as well as continuing bene-
fits and Medicare coverage. Furthermore, the AU waived
recovery of the overpayment of benefits resulting from Plain-
ffs work activity for the years 1988, 1989, and 1990.
Therefore, Plaintiff did not have to repay the Social Security
Administration for the benefits he received during those
years.
In Defendant’s Opposition to Plaintiff's Motion to Compel,
Defendant asserts that “there is no further remedy that can be
achieved by Plaintiff in this action because he has received
the only remedy provided by the Social Security ..ct:
retroactive benefits.” (Defendant’s opposition to Plaintiff's
Motion to Compel, pg. 4, lines 19- 21). Plaintiff argues that
47a
his monthly check is lower than it was before SSA cut off his
benefits. However, Plaintiff's dispute with the calculation of
benefits is not an issue before this court. The district court has
ruled that it has no jurisdiction over the substantive claims of
entitlement. (Defendant’s opposition to Plaintiffs Motion to
Compel, pg. 4, footnote 2.)
On November 8, 2001, the Clerk of the court entered a
judgment denying Plaintiff's motion for declaratory and
injunctive relief. Plaintiff moved for relief from the Clerk’s
entry of judgment pursuant to FRCP 60 and requested that
the court enter judgment in his favor.
The district court granted relief from the judgment on
January 11, 2002. The court explained that the Clerk had
erroneously entered judgment while the Plaintiff's due
process claim was still outstanding. However the court
denied Plaintiff’s motion to enter judgment in his favor and
denied his motion for attorney’s fees.
On February 14, 2002, Plaintiff moved for summary
judgment. The Defendant opposed the motion, and moved for
summary judgment on the due process claim on April 16,
2002. However, the hearing on these pending motions has
been postponed because Plaintiff claims that discovery is
necessary to flesh out his motion.
III. This Motion
On April 29, 2002, Plaintiff moved for an Order com-
pelling Defendant to produce nine depositions and two
documents (one cassette tape and one Notice of Award).
Specifically, plaintiff requests (1) to take the depositions of
nine Social Security employees, (2) a tape of his August 2001
hearing before the AU; and (3) a copy of the Notice of his
Award of benefits pursuant to the ALJ’s August 30, 2001
decision. (See C.R. 72-74: Plaintiff's Motion to Compel
Production of Documents tone Tape and Notice of Award)
48a
and the Taking of Depositions.?. The Defendant requests that
this court find that discovery is unnecessary at this time and
stay discovery until the District Court decides the parties’
pending cross- motions for summary judgment.
On May 30, 2002, the Assistant United States Attorney
Mailed a cassette tape of Plaintiff's August 30, 2001 adminis-
trative hearing to Plaintiff's counsel. In addition, pursuant to
the Privacy Act, Defendant provided documents related to
Plaintiff's Social Security claims, including in a Notice of
Award letter informing Plaintiff that his payments would
begin in August 2001. The only document withheld by De-
fendant was a privileged attorney-client communication.
Since the Tape, and Notice of-Award have been provided
to Plaintiff by Defendant, the only remaining issue before this
court is whether Defendant must produce the nine individuals
to testify about the proceedings leading up to the termination
of Plaintiff's Social Security benefits.
Plaintiff seeks to question the deponents as to:(1) why the
Social Security Administration (SSA) employees sent Mr.
Gibler’s file to Baltimore; (2) whether an Administrative Law
Judge has jurisdiction over due process issues; (3) whether
Defendant knew of Plaintiffs financial status at the time that
Plaintiff's benefits were terminated without a prior Goldberg
v. Kelly due process hearing.
Defendant opposes Plaintiffs motion to compel on the basis
of relevance. Defendant asserts that there-are no genuine
issues of material fact which require the nine depositions and
that, contrary to Plaintiff's contentions, the only remaining
issue in this case is whether the Plaintiffs due process rights
were violated by his having to wait for a post- termination of
benefits hearing before an ALJ. “Defendant claims that this is
an issue of law and does not involve disputed facts.
> “CLR.” is the Clerk’s record of documents filed in this case.
49a
As stated above, Defendant asserts that there are no further
remedies that can be obtained by Plaintiff in this action
because he has already received the only remedy provided by
the Social Security Act: retroactive benefits.’ Schweiker v.
Chilicky, 487 U.S. 412, 428- 429 (1988). Defendant further
asserts that under Schweiker there are no money damages
available for alleged constitutional violations committed by
the SSA. /d. At 112.
ANALYSIS
I. General Statement of the Law: Relevance of
Documents.
Under Fed. R. Civ.P. 26(B)(1), parties may obtain discov-
ery regarding any matter, not privileged, that is relevant to the
claim or defense of any party, including the existence, de-
scription, nature, custody, condition, and location of any
books, documents, or other tangible things, and the identity
and location of persons having knowledge of any discov-
erable matter. For good cause, the court may order discovery
of any matter relevant to the claims and defenses of a party.
Relevant information need not be admissible at trial if the
discovery appears reasonably calculated to lead to the dis-
covery of admissible evidence. FRCP 26(b)(1). This rule is
subject to limitations as provided in FRCP 26 (b)(2).
Under Rule 26(b)(2), although certain documents may be
relevant to the claims and defenses of both parties and are
reasonably calculated to lead to. the discovery of admissible
evidence, if the discovery sought is obtainable from some
other source that is “more convenient, less burdensome, or
’ The Commissioner has since paid Plaintiff his benefits for the
relevant period. See C.R.71. Plaintiff argues that his monthly benefit
amount is lower than it was before SSA terminated his benefits. Plaintiffs
Motion to Compel, p. 4. However, this dispute regarding the calculation
of benefits is not at issue before this court.
50a
less expensive”, then discovery should be obtained from that
source. FRCP 26(b)(2).
A) The Government has produced the Hearing Tape and
Notice of Award Letter.
The Tape and the Notice of Award letter sought to be
discovered by Plaintiff are relevant to the claims and defenses
of both parties. Both documents are reasonably calculated to
lead to the discovery of admissible evidence. The tape of the
hearing has been provided.
In Plaintiffs Reply he asserts that Defendant’s statement
that she has supplied the Notice of Award is misleading. The
benefits which resumed in August 2001 were not a result of
the hearing held on August 29, 2001, but were pursuant to
separate application filed in January, 2001. The original
Notice of Award is dated August 27, 2001 (two days before
the hearing of August 29, 2001 took place). In other words,
there may be two Notices of Award. Plaintiff contends that
the Notice of Award he received is defective, because it did
not explain how monthly fees were calculated, and therefore,
formed no objective basis for appeal. If such a second notice
exists, Plaintiff should be given the second Notice of Award
as well. It is so ordered.
B) Relevance of Nine Depositions.
1) Jurisdiction
This court has ruled that it has “no jurisdiction over Plain-
uff’s claim with regards to past and present Social Security
benefits”. (Defendant’s opposition to Plaintiff's Motion to
Compel, pg. 2, line 12). This court also declined to find juris-
diction over Plaintiff's claim that “SSA’s notices were inade-
quate.” (Defendant’s opposition to Plaintiff's Motion to
Compel, pg. 6). Consequently, any inquiry into these areas
would be Irrelevant.
Sla
2) Relevance
a) Whether the Depositions are Necessary and
Relevant to Determine Whether it was Proper
for the SSA to Send Plaintiff's File to Balti-
more, and Whether the SSA did so inten-
tionally and maliciously’.
Plaintiff argues that he must depose these employees to
show that the SSA allegedly “intentionally and maliciously”
sent his file to Baltimore for the reconsideration. C.R. 72- 74:
Motion to Compel, § 2-3, 7. Plaintiff also claims that the
employees deprived him of his right to a Goldberg v. Kelly
due process hearing.
Deiendant contends that whether its scheme of adminis-
trative review of violated Plaintiff's rights is a legal issue that
can be resolved without more discovery on the present record.
The potential deponents are: Donald Worms; and Curtis
Faville—claims representative; John Hanley supervisor
who handled the initial cessation review; Royce Hanley and
her supervisor in SSA’s Office of Central operations in
Baltimore, the individual who handled the reconsideration
review: AU Neil Aschemeyer—who heard Plaintiff's claim in
August 2001 and issued a mostly favorable decision); John
Larimore—an employee in the Congressional Unit in SSA’s
Regional Commissioner's office, whom Plaintiff's attorney
contacted during the initial stages of administrative review;
and Carolyn Goodwin—a SSA employee in Baltimore con-
tacted about administrative remedies available to Plaintiff.
(The Administrative Chief Judge of SSA’s Region IX, Arthur
Cahn, has no personal knowledge:of this case.) (Memo-
randum in Support of Defendant’s Motion to Stay Discovery
and in opposition to Plaintiff's Motion to Compel Discovery,
pg. 5).
Defendant asserts that testimony from the nine deponents is
not required to resolve the due process question. (Defendant’s
S2a
opposition to Plaintiffs Motion to Compel, pg. 6, lines 3-4).
Defendant states that the SSA employees complied with the
regulations for reviewing a benefit cessation based on work
activity. (Defendant’s opposition to Plaintiff's Motion to
Compel, pg. 6, lines 1-2). Moreover, Defendant asserts that
even if the SSA employees acted incorrectly, Plaintiff can
seek no further remedy because the only remedy provided by
the SSA is retroactive benefits, which Plaintiff has already
received. Schweiker v. Chilicky, 487 U.S. 412, 428- 429.
This court finds that Judge Jenkins may well be able to
decide the motions without the nine depositions requested by
Plaintiff. If not, the court may revisit the issue.
b) Whether Discovery of the Nine Depositions is
Necessary and Relevant to Determine if an
Administrative Law Judge has the Authority to
Adjudicate Due Process Issues.
Whether an All has the authority to adjudicate due process
issues is a question of law for the court to decide. Thus, dis-
covery of the nine deponents in this context is not necessary.
c) Whether Discovery of the Nine Depositions is
Necessary and Relevant to Determine Whether
SSA Employees Knew that Plaintiff was In-
digent and at Risk of Losing his Medical Care
when his Disability Benefits were Terminated.
Plaintiff argues that he needs to question these nine SSA
employees to determine whether they knew he was indigent
and at risk of losing his medical care when his disability
benefits were terminated. However, as Defendant argues, the
issue is not whether the Commissioner knew about Plaintiff’s
circumstances at the time Plaintiff's benefits were terminated,
but whether Plaintiff's due process rights were violated as a
result of the termination of his disability benefits.
53a
Plaintiff argues that he was not afforded a due process
hearing as required by Goldberg and that the nine depositions
are necessary to determine if his due process rights were
violated. A determination of whether Plaintiffs due process
rights were violated as a result of the termination of his
disability benefits can be derived from a review of the SSA
regulations and internal policy manual and the present record.
Specifically, 42 U.S.C.A. §§ 405 (b)(1) governs the proper
procedures that the SSA must follow when terminating an
individual’s disability benefits. As Defendant states in her
opposition to Plaintiff's Motion to Compel,” [T]he issue of
whether Commissioner’s scheme of administrative review of
Plaintiff’s benefit cessation violated his rights can be resolved
without discovery of the SSA decision-makers and their
supervisors who worked on or helped to effectuate Plaintiff's
administrative appeal.” (Defendant’s opposition to Plaintiff's
Motion to Compel, pg. 5, lines 13-14). The SSA regulations
and internal policy manual outline the current procedures to
terminate disability benefits. Review of the SSA regulations
and internal policy manual is “more convenient, less burden-
some, and less expensive” for both parties. FRCP 26(b)(2).
Thus, it is not necessary to take the nine depositions request-
ed regarding disability termination procedures.
The present administrative procedure is outlined in 42
U.S.C.A. § 405(b)(1), which states that “upon request by any
such individual .. . who makes a showing in writing that his
or her rights may be prejudiced by any decision the
Commissioner of Social Security has rendered, the Commis-
sioner shall give such applicant and such other individual
reasonable notice and an opportunity for a hearing with re-
spect. to such decision, and, if a hearing is held, shall, on the
basis of evidence adduced at the hearing, affirm, modify, or
reverse the Commissioner’s findings of fact and such de-
cision.” 42 U.S.C.A. § 405(b)(1).
S4a
Section 405(b)(1) was last am._.ided in 1994, and the sub-
stantive changes in 1994 within section 405(b)(1) do not
affect the requirement that an individual must be given
“reasonable notice and an opportunity for a hearing with re-
spect to the adverse decision”. 42 U.S.C.A. § 405(b)(1 ). In
October 2000 when Plaintiff's Social Security checks were
terminated, the 1994 version of § 405(b)(1) was controlling.
A review of 42 U.S.C.A. § 405(b)(1) along with SSA regu-
lations, SSA procedures, and the administrative record may
be the SSA internal policy manual sufficient to determine
whether Plaintiff's due process rights were violated by not
receiving a hearing. The nine depositions are not necessary at
this time to determine whether Plaintiff's due process rights
were violated.
Section 12:1 “Constitutional right to hearing” of the Social
Security Claims and Procedures states that “Both the Social
Security Act and the Due Process Clause of the Fifth
Amendment require that a claimant receive an opportunity to
personaily appear at a hearing, before a claim for disability
benefits is denied.” Harvey L. McCormick, Social Security
Claims and Procedures, Volume Two, § 12:1, pg. 3 (Fifth
Edition, West Group 1998). This suggests that a hearing may
be required before the termination of disability benefits. If so,
Plaintiff should have had a hearing prior to the termination of
his disability benefits. In any event, review of the SSA
regulations and internal policy manual is an adequate means
at this time for the court to assess whether Plaintiff's due
process rights were violated by not receiving a hearing prior
to the termination of his disability benefits without of the nine
depositions.
SUMMARY
Plaintiff alleges that his due process rights were violated
When his benefits were terminated. The court may determine
whether Plaintiffs due process rights were violated by
reviewing the Social Security Administration regulations and
5Sa
internal policy manual on the present record as suggested by
Defendant. The nine depositions are not necessary at this
time. The tape and Notice of Award have previously been
produced by Defendant. If there is an additional Notice of
Award, it shall be produced forthwith. Otherwise, Plaintiff's
motion to compel is denied without prejudice. Defendant’s
motion to stay further discovery is granted.
IT IS SO ORDERED.
DATED: July 2, 2002
/s/ James Larson
JAMES LARSON
United States magistrate Judge
S6a
United States District Court for the
Northern District of California
July 2, 2002
* * CERTIFICATE OF SERVICE * *
Case Number: 3:01-cv-00895
GILBER
Vs
HALTER
I, the undersigned, hereby certify that | am an employee in
the office of the Clerk, U.S. District Court, Northern District
of California.
That on July 2, 2002, 1 SERVED a true and correct
copy(ies) of the attached, by placing said copy(ies) in a
postage paid envelope addressed to the person(s) hereinafter
listed, by depositing said envelope in the U.S. Mail, or by
placing said copy(ies) into an inter-office delivery receptacle
located in the Clerk’s office.
STEVEN BRUCE, Esq.
People With Disabilities Foundation
507 Polk Street, Mezzanine
San Francisco, CA 94102
ALEX G. TSE, Esq.
U.S. Attorney’s office
450 Golden Gate Avenue
P.O. Box 36055
San Francisco, CA 94102
RICHARD W. WIEKING, Clerk
BY:
Deputy Clerk
57a
UNITED STATES DISTRICT COURT
THE NORTHERN DISTRICT OF CALIFORNIA
[Filed Aug. 5, 2002]
CASE NO. C 01-0895 MJJ (JL)
TIMOTHY GIBLER,
Plaintiff,
VS.
Jo ANNE B. BARNHART,
Commissioner of Social Security Administration,
Defendant.
ORDER CONFIRMING STIPULATION TO
CORRECTION OF DISCOVERY ORDER
DATED JULY 3, 2002
Whereas Plaintiff and Defendant have reviewed Plaintiff's
letter of July 16, 2002 relating to a clerical error in said Order
hereby stipulate as follows:
On line 9 of page 2 “. . . where he for the first time reported
his sporadic paid work singing for church choirs,” is deleted,
and the following is inserted therein: “As the Administrative
Law Judge found in his decision dated August 30, 2001, Mr.
Gibler reported his earnings.
Dated: 7/29/02 Dated: 7/31/02
/s/ Steven Bruce /s/ Alex G. Tse
STEVEN BRUCE ALEX G. TSE
Attorney for Plaintiff Attorney for Defendant
IT IS SO ORDERED:
DATED: 8-5-02
/s/ James Larson
HONORABLE JAMES LARSON
Magistrate Judge of the
District Court
59a
United States District Court
for the
Northern District of California
August 5, 2002
* * CERTIFICATE OF SERVICE * *
Case Number: 3:01-cv-00895
GILBER,
VS.
HALTER.
|, the undersigned, hereby certify that I am an employee in
the office of the Clerk, U.S. District Court, Northern District
of California.
That on August 5, 2002, I SERVED a true and correct copy-
(ies) of the attached, by placing said copy(ies) in a postage
paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said
copy(ies) into an inter-office delivery receptacle located in
the Clerk's office.
Steven Bruce, Esq.
People With Disabilities Foundation
507 Polk Street, Mezzanine
San Francisco, CA 94102
Alex G. Tse, Esq.
U.S. Attorney's Office
450 Golden Gate Avenue
P.O. Box 36055
San Francisco, CA 94102
Richard W. Wieking, Clerk
By: /s/ [Illegible]
Deputy Clerk
60a
EXHIBIT 15
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
[Filed Jul 11, 2001]
No. C 01-0895 MJJ
TIMOTHY GIBLER,
Petitioner.
va
LARRY G. MASSANARI, Acting Commissioner
of the Social Security Administration
Respondent.
ORDER DENYING RESPONDENT’S MOTION
TO DISMISS FOR LACK OF SUBJECT
MATTER JURISDICTION
INTRODUCTION
Before the Court is Respondent Larry G. Massanari’s,'
Acting Commissioner of the Social Security Administration
(“the Acting Commissioner”), motion to dismiss Petitioner
Timothy Gibler’s (“Gibler’) petition for a writ of mandamus
for lack of subject matter Jjurisdiction. Having considered the
moving papers and the arguments of counsel at the hearing on
this matter, and for the reasons set forth below, the Court
DENIES the’Acting Commissioner’s motion to dismiss.
' Larry G. Massanari became the Acting Commissioner of Social
Security on January 20, 2001. He was therefore substituted for former
Acting Commissioner. William Halter, the original respondent in this suit,
pursuant to Federal Rule of Civil Procedure 25(d)(1).
6la
Although Petitioner has failed to exhaust administrative rem-
edies, this Court has jurisdiction because Gibler has raised a
colorable Constitutional claim of Due Process violation.
FACTUAL BACKGROUND
Gibler received social security benefits under Title II of the
Social Security Act (hereinafter “the Act”) from on or about
1979 until December, 2000; because of a severe psychiatric
disorder. Since 1979, he has undergone several continuing
disability reviews performed by doctors contracted by the
state agency to determine if he is still disabled within the
meaning of am Act. On January 15, 2000, Gibler filled out a
form entitled “Report of Work Activity-Continuing Dis-
ability,” where he reported sporadic paid work activity
involving singing for church choirs. On July 26, 2000, the
Social Security Administration (“SSA”) provided Gibler with
a Notice of Proposed Decision to inform him. that his
reported work could affect his benefits and that he had ten
days in which to * provide more information before a final
decision and Notice of Termination. Gibler contends, and the
Acting Commissioner does not dispute, that Gibler’s medical
record was not taken into account in making this deter-
mination. In December, 2000, Gibler did not receive a social
security check, and his attorney filed a Request for Recon-
sideration even though no Notice of Termination had been
issued. At that time Gibler requested that he be kept on check
status pending appeal, but was not.
Gibler, through his attorney, contacted staff in multiple
departments of the SSA during January and February, 2001,
and requested that he remain on check status and have a
medical examination to evaluate his continuing disability, but
neither was forthcoming. On February 13, 2001, Gibler
received a notice informing him that he no longer qualified
for social security benefits because of his work, and that he
was not entitled to payment retroactive to March, 1988. This
letter also informed Gibler of his right to appeal the decision
62a
within 60 days and/or file a new application. Gibler’s
challenge to this decision was denied at the reconsideration
level on March 23, 2001, and he has requested an Admin-
istrative Law Judge (“ALJ”) hearing to appeal the decision. In
April 2001, Gibler requested that he be reinstated to check
status pursuant to the Ticket to Work and Work Incentives
Improvement Act of 1999 (hereinafter “Ticket to Work Act”),
42 U.S.C. § 1320b-19, and its expedited reinstatement pro-
visions included in 42 U.S.C. 423(1). He was deemed
ineligible for expedited reinstatement because his request did
not come within 60 months of termination (because his
benefits were terminated retroactively to 1988), and because
the provision was not in effect at the time his benefits were
terminated. See Resp.’s Motion to Dismiss Ex. 3. According
to operating instructions distributed to SSA workers on
December 29, 2001, the expedited reinstatement provisions of
the Ticket to Work Act went into effect January 1, 2001 and
apply to former Title II and Title XVI beneficiaries who had
their benefits terminated based on work and file a request for
-reinstatement within 60 months of termination. See Pet. for
Writ of Mandamus, Ex. 3.
Gibler has since filed a new application for benefits which
has been tentatively approved by the SSA since February
2001, and his request for a hearing with an AU is pending
while the SSA consolidates his claims files. Since the
termination of his benefits, Gibler has been taken off Medi-
care and is unable to continue seeing his treating psychiatrist.
He has sought treatment at county facilities to ward off
psychiatric decompensation.
Gibler seeks a writ of mandamus from this Court ordering
a medical termination review to determine his eligibility for
benefits as well as reinstatement to check status pending
appeal. He contends that this Court has subject matter
jurisdiction pursuant to 8 U.S.C. § 1329 (jurisdiction over all
63a
causes arising under Title II of the Social. Security Act),” 28
U.S.C. § 1361 (jurisdiction to compel an officer of the United
states to perform a duty owed to the petitioner) and 28 U.S.C.
§ 1331 (federal question jurisdiction). The Acting Com-
missioner has moved to dismiss the petition for a writ of
mandamus under Federal Rule of Civil Procedure 12(b)(1) for
lack of subject matter jurisdiction, arguing that Gibler has
failed to exhaust available administrative remedies within the
SSA as required by 28 U.S.C. § 1361 and that he has not
raised a colorable Constitutional Due Process claim to invoke
jurisdiction under 28 U.S.C. § 1331.
LEGAL STANDARD
A motion brought under Federal Rule of Civil Procedure
12(b)(1) seeks dismissal of the plaintiff s complaint for lack of
subject matter jurisdiction. “Unlike a Rule 12(b)(6) motion, a
Rule 12(b)(1) motion can attack the substance of a com-
plaint’s jurisdictional allegations despite their formal suf-
ficiency, and in so doing rely on affidavits or any other
evidence properly before the court.” St. Clair v. City Chico,
880 F.2d 199, 201 (9th Cir. 1989). Because federal courts are
presumptively without jurisdiction in civil matters, the burden
of proving the Court’s authority to consider a case rests on
the party asserting jurisdiction. See Kokkonen v. Guardian
Life Ins. Co. of America, 114 S. Ct. 1673, 1675 (1994).
2 8 U.S.C. § 1329 states in pertinent part that: “The district courts of
the United States shall have jurisdiction of all causes, civil and criminal,
brought by the United States that arise under the provisions of this
subchapter. . . . Nothing in this section shall be construed as providing
jurisdiction for suits against the United States or its agencies or officers.”
Under its express terms, 8 U.S.C. § 1329 is not a valid basis for
jurisdiction in a claim against the Acting Commissioner of the Social
Security Administration, and will not be discussed further.
64a
ANALYSIS
A. Failure to Exhaust Administrative Procedure and
Waiver for Jurisdiction under 28 U.S.C. 1361
Under 42 U.S.C. § 405(g), the Act provides the sole
jurisdictional basis for judicial review of administrative
actions concerning benefits claims, and judicial review is
available only where the Commissioner has issued a final
decision after a hearing to which claimant is a party.
Schweiker v. Chilicky, 487 U.S. 412, 424 (1988) (emphasis
added); see also 42 U.S.C. 405(g). Therefore, a court
generally does not have jurisdiction when a claimant has
failed to exhaust the administrative procedures set forth in the
Act. Bass v. Social Security Administration, 872 F.2d 832,
833 (9th Cir. 1989). Further, a writ of mandamus is intended
to provide a remedy for a petitioner “only if he has exhausted
all other avenues of relief, and only if the respondent owes
him a clear nondiscretionary duty.” Laurie Q. v. Callahan,
973 F. Supp. 925, 933 (N.D. Cal. 1997) (quoting Heckler v.
Ringer, 466 U.S. 602, 616 (1984)). Here, the Court holds that
Gibler has not exhausted all administrative remedies and has
not met the requirements for a waiver of the exhaustion
requirement.
1. Failure to Exhaust
Gibler has not exhausted all administrative remedies within
the SSA for his challenge of the cessation of his benefits in
December, 2000 based on work, or for his demand for rein-
statement of benefits. According to a letter from Gibler’s
attorney to this Court dated April 3, 2001, this case was not
filed pursuant to Procedural Rule 16-I(e) after a final deci-
sion by the SSA, but was instead .fled as a writ of mandamus
before final administrative action based on Constitutional and
other grounds.
Although Gibler has initiated a request for a hearing before
an ALJ to challenge the cessation of benefits in December,
65a
2000, this request is pending while the SSA consolidates his
claims and there has been no final decision on this issue. See
Bash, 872 F.2d at 833 (holding that a decision is not the final
decision of the Secretary until after a decision by the appeals
council following a hearing before an ALJ. Additionally,
Gibler has not yet challenged the denial of reinstatement
based on the SSA’s interpretation of the expedited reinstate-
ment provisions of the Ticket to Work Act within the SSA’s
appeal framework.’ Thus, Gibler has not exhausted all avail-
able agency procedures. See Sims v. Apfel, 530 U.S.103, 108
(2000) (finding that without a final decision, a claimant
cannot obtain judicial review because he has failed to exhaust
administrative remedies). Because he has not met the
exhaustion requirement, it is unnecessary for this Court to
reach the issue of whether the Acting Commissioner owed
Gibler a clear, nondiscretionary duty to take his medical
disability into account when discontinuing benefits and to
continue the payment of benefits during appeal.
2. Waiver of the Exhaustion Requirement
In some cases, courts may waive the exhaustion require-
ment and assert jurisdiction because “cases may arise where a
claimant’s interest in having a particular issue resolved is so
great that deference to the agency’s judgement is inappro-
priate.” Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir. 1987)
(quoting Mathews v. Eldridge, 424 U.S. 319, 330 (1976)).
Judicial waiver of the exhaustion requirement is proper only
if the claim at issue is: “(1) collateral to” a substantive claim
* The Acting Commissioner concedes that “it is not clear at this
juncture whether a viable administrative remedy concerning the denial of
expedited reinstatement is available.” Resp.’s Motion to Dismiss 6:16-17.
However, it appears to the Court that the denial of the expedited rein-
statement request is an initial determination subject to further adminis-
trative review. See 20 C.F.R. § 404.902(b) (stating that initial determina-
tions are determinations-made subject to administrative and judicial
review and include determinations about reentitlement to benefits).
66a
of entitlement (collaterality), (2) colorable in its showing that
refusal of the relief sought will cause an injury which
retroactive payments can not remedy (irreparability),’ and (3)
one whose resolution would not serve the purposes of
exhaustion (futility).” Briggs, 886 F.2d at 1139 (quoting Bass,
872 F.2d at 833); see also Mathews, 424 U.S. at 330-31;
Bowen v. City of New York, 476 U.S. 467, 483 (1986);
Cassim, 824 F.2d at 795. Gibler contends that he has met the
three-part test for judicial waiver of the exhaustion require-
ment, so jurisdiction should be exercised even if he has not
exhausted all available administrative remedies. However, the
Court cannot waive the exhaustion requirement because
Gibler’s claim is not wholly collateral to his underlying claim
for benefits, and exhaustion of administrative remedies would
not be futile.
a. Collaterality
In order to be collateral to a substantive claim of entitle-
ment, Gibler’s request for an order that the SSA reinstate him
to check status and perform a medical evaluation must not be
“inextricably intertwined” with his claim for social security
benefits. Hironymous v. Bowen, 800 F.2d 888, 894 (9th Cir.
1986). In Hironymous, the petitioner sought to overturn an
SSA determination of ineligibility based on his adjusted
resources. /d. The court found that “although granting a writ
would not result in an award of benefits, it would remove
from the Secretary’s consideration a substantive factor
immediately relevant” to the underlying claim. Jd. However,
in Briggs, 886 F.2d at 1139-40, it was determined that the
* The Ninth Circuit, in Cassim, appears to have initially interpreted this
factor of the exhaustion waiver under a “colorable Constitutional chal-
lenge” standard. 824 F.2d at 795. However, when the court later used the
three-part test in Briggs v. Sullivan, 886 F.2d 1132, 1139 (9th Cir. 1989),
it interpreted the second factor under an “irreparability” standard as
apparently contemplated by the Supreme Court in Mathews and followed
by courts thereafter.
—
67a
plaintiffs’ complaint, regarding suspension of social security
payments when their representatives could no longer serve
the role, was wholly collateral to the claimants’ substantive
benefits eligibility claim. The court reasoned that, because all
plaintiffs in the action were already deemed entitled to
benefits and the question remaining was to whom the benefits
should be paid, this issue was collateral to the Secretary’s
eligibility criteria. Jd. Thus, the case was not a claim of
“substantive eligibility for benefits.” /d.
Here, Gibler has been tentatively approved for benefits
status as of February, 2001, and does not have a claim of
eligibility pending with the SSA. Instead, he is challenging
the SSA determination that he was ineligible for benefits
from March, 1988 to February, 2001, and believes that medi-
cal evidence should have been taken into account in making
that determination. However, granting a writ reinstating
Gibler to check status pending appeal would remove from
consideration at the administrative level whether or not he
was eligible for expedited reinstatement of benefits under the
Ticket to Work Act. Likewise, granting a writ ordering a
medical examination to determine if cessation was proper as
of 1988 would also interfere with an agency determination of
Gibler’s underlying claim. The Court finds that, although his
request for reinstatement and a medical examination is not
inextricably intertwined with a current claim for benefits, it is
so closely related to his claim of substantive eligibility for
benefits from March, 1988 to February, 2001 that it is not
“wholly collateral.”
b. Irreparability
“A colorable showing of irreparable injury for the purposes
of waiver of the exhaustion requirement is one that is not
‘wholly insubstantial, immaterial, or frivolous.’” Briggs, 886
F.2d at 1140 (holding that a showing that denial of payment
would result in months without food or shelter meets “a far
higher standard than colorable”). Here, Carol Banyas, Gib-
68a
ler’s primary treating psychiatrist, stated that “there is a
substantial risk of decompensation during this time due to the
fact that he no longer has Medicare. His ability to function on
a day to day basis is at considerable risk . . . . It is clear that
he has a severe psychotic disorder and is in urgent need of
psychiatric treatment.” Banyas Decl. ¢ 5. Additionally,
Gibler’s attorney stated in a letter to John Larimore dated
December 20, 2000 that his client was about to become
homeless and had no money for rent or food. Pet. for Writ of
Mandamus Ex. 2. From these statements, the Court finds that
Gibler will likely suffer irreparable harm if social security
benefits continue to be denied.
c. Futility
Finally, this Court must determine whether Gibler’s claim
is one whose resolution “would not serve the purposes of
exhaustion.” Briges, 886 F.2d at 1139. In Briggs, the court
found that futility is satisfied where the claimant demon-
strates that “there [i]s nothing to be gained from permitting
the compilation of a detailed factual record, or from agency
expertise.” /d. at 1140 (quoting Cassim, 824 F.2d at 795).
Because of the dispute regarding the interpretation and ad-
ministration of the new Ticket to Work Act and its expedited
reinstatement provisions, this case would certainly benefit
from agency expertise. Additionally, the SSA has an interest
in making initial interpretations of the new provisions through
agency procedures and a hearing with an ALJ. The futility
requirement is therefore not met.
Here. Gibler has not exhausted his administrative remedies
within the SSA because he has a request for a hearing before
an ALJ currently pending. Additionally, he has not met the
three-part test for an exception to the exhaustion requirement
because his claim is not collateral to a substantive claim of
ci.gibility for benefits and exhaustion would not be futile.
Thus, the Court cannot exercise mandamus jurisdiction over
this claim pursuant to 28 U.S.C. § 1361.
69a
B. Constitutional Claims of Due Process Violation for
Jurisdiction under 281 J.S.C. § 1331
A colorable Constitutional claim of Due Process violation
is an exception to the jurisdictional limitations of the Act. See
Udd v. Massanari, 245 F.3d 1096, 1098-99 (9th Cir. 2001);
Evans v. Chater, 110 F.3d 1480, 1483 (9th Cir. 1997) (find-
ing that “the exception applies to any colorable constitutional
claim of due process violation that implicates a right either to
a meaningful opportunity to be heard or to seek reconsid-
eration of an adverse benefits determination”). The funda-
mental requisite of due process of law is the opportunity to be
heard at a meaningful time and in a meaningful manner.
Goldberg y. Kelly, 397 U.S. 254, 267 (1970). A challenge that
is not “wholly insubstantial, immaterial, or frivolous” raises a
colorable Constitutional claim. Boettcher v. Secret of Health
and Human Services, 759 F.2d 719, 722 (9th Cir. 1985).
Gibler alludes to several possible Constitutional Due Proc-
ess violations in his Petition for Writ of Mandamus and in his
Reply to Respondent's Motion to Dismiss. First, he contends
that the Notice of Termination dated February 20, 2001
violates Due Process and the Social Security Act and
regulations because it did not take into account his medical
impairments to determine if he was capable of engaging in
substantial gainful activity. Second, Gibler contends that Due
Process is further violated because the procedures in place for
contesting the SSA’s determination of ineligibility through an
All hearing, as applied to him, do not comport with Due
Process because they force him to risk psychiatric decom-
pensation pending review. Third, Gibler states that Due
Process has been violated because the three notices he
received are unconstitutionally vague. At oral argument,
Gibler also introduced the possibility that Due Process was
violated when the SSA failed to reinstate him to benefits
status pursuant to the Ticket to work Act. Based on the entire
record and arguments presented during oral argument, the
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Court finds that Gibler’s challenge of the timing of his ALJ
hearing in light of his potential decompensation is the only
colorable Due Process claim sufficient to afford this Court
jurisdiction.
1. Notices Unconstitutionally Vague
The Court finds no merit in the contention that the notices
Gibler received, retroactively cutting off his benefits, are
unconstitutionally vague because they do not state that
medical evidence was used in the determinations and do not
state whether Gibler was terminated because of employment
or self-employment. The notices state when and why Gibler
was terminated, as well as information on how to appeal and
file a new application. Therefore, they provide an opportunity
to be heard in a meaningful time and in a meaningful manner;
the essence of Due Process. Boettcher, 759 F.2d at 723 (citing
Mathews, 424 U.S. at 333). Additionally, before receiving
these notices Gibler received a Notice of Proposed Decision
dated July 27, 2000.in-which the information the SSA
considered in making the adverse determination is listed in
detail. Thus, Gibler could adequately challenge the adverse
determination based on the entirety of the information
provided by the SSA. His allegation of vague notices is not a
colorable’ Due Process claim.
2. Review of Medical Evidence before Termination
In order to make a colorable claim that the review of
medical evidence prior to termination of Title II benefits is
Constitutionally required, Gibler would need to allege that a
failure to take such evidence into account is so unreasonable
that it affords him no process at all. See Patel v. Penman, 103
F.3d 868, 874 (9th Ch.. 1996) (quoting Bateson v. Geisse, 857
F.2d 1300, 1303 (9th Cir.1988) (holding that “to establish a
violation of substantive due process, a plaintiff is ordinarily
required to prove that a challenged government action was
‘clearly arbitrary and unreasonable, having no substantial
: Tla
relation to the public health, safety, morals, or general wel-
fare.’”)). Gibler, however, simply argues that the Act and its
regulations require the SSA to take medical evidence into
account, and that failure to do so amounts to a Due Process
violation. This argument fails to frame a colorable claim of
Due Process violation. Instead it raises the issue of whether or
not current SSA regulations required medical evidence to be
taken into account before termination of his benefits, and
requires an analysis of current SSA regulations and their ap-
plicability in his case. Therefore, his claim should be resolved
by an ALI and not by this Court.
Gibler asserts that the decision to terminate his benefits
without a medical evaluation is a Due Process violation
because it does not follow Social Security Regulations
(“SSRs”) currently in place. He relies on Han v. Bowen, 882
F.2d 1453 (9th Cir. 1989) to demonstrate that SSRs inter-
preting the Act or its regulations are binding on the SSA,
including ALJs. Gibler cites SSR 82-66 “Establishing a
Cessation-Date in a Continuing Disability Claim” and SSR
83-34 “Determining Whether work is Substantial Gainful
Activity,” among others, to show that the SSRs were violated
by the termination of Gibler’s benefits and the lack of
medical review. Gibler cites Barker v. Secretary of Health
and Human Services, 882 F.2d 1474 (9th Cir. 1989); where
the court held that the ability to perform sheltered work
activity does not establish an ability to engage in substantial
gainful work. He also relies on Lopez v. Heckler, 713 F.2d
1432, 1434 (9th Cir.1983), which states that “before Social
Security disability benefits can be terminated on the ground
that the recipient is no longer disabled, the Secretary must
introduce evidence that the recipient’s medical condition has
improved.” ;
However, whether or not medical information should have
been taken into account in Gibler’s case, based on current
SSRs, is a factual argument that can and should be made first
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in front of an ALJ The Acting Commissioner contends that
Gibler’s benefits were not terminated because of a change in
continuing disability that would allow him to perform
substantial gainful activity, but because he completed a “trial
work period” of more than nine months.” See generally 20
C.F.R. § 404.1592. Thus, the SSRs and cases cited by Gibler
do not appear to apply to his case. 20 C.F.R. § 404.1592(a)
states that “the trial work period is a period during which you
may test your ability to work and still be considered disabled.
... During this period you may perform ‘services’ . . . [A]fter
the trial work period has ended we will consider the work you
_ did during the trial work period in determining whether your
disability ended at any time after the trial work period.” 20
C.F.R. § 404.1592(b) goes on to define services as “any
activity (whether legal or illegal), even though it is not
substantial gainful activity, which is done in employment or
self-employment for pay or profit.” (emphasis added). While
the SSA might need to take medical information into account
in determining whether a claimant has performed substantial
gainful activity, Gibler’s argument that the SSA is bound by
the same standard in this case appears to be incorrect because
a trial work period need not include substantial gainful
activity.
Because Gibler has failed to frame a colorable Due Process
claim stemming from the denial of a medical evaluation prior
to termination of benefits, but instead raises a factual question
regarding the applicability and interpretation of specific
* Gibler has provided the Court with an earnings record reflecting the
amount he earned during the months from September 1983 to July 2000,
including those found by the SSA to be a “trial work period.” Although
the Court notes the varied amounts of Gibler’s earnings, the issue of
whether Gibler has completed a “trial work period” based on these
earnings is not before this Court and should be presented to an AL as part
of a challenge to the determination of ineligibility.
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portions of the Act and its regulations, there is no basis for
the Court to assert jurisdiction over this claim.
3. Reinstatement Pursuant to the Ticket to Work Act
“Gibler also appears to contend that the SSA’s failure to
reinstate him to benefits status pursuant to the Ticket to Work
Act and its expedited reinstatement provisions, or to afford
him an avenue for appeal from a denial of reinstatement,
constitutes a Due Process violation. However, such allega-
tions have not been stated as colorable Constitutio
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