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Demedeiros v. Berryhill

United States District Court, N.D. Texas, Dallas Division

January 8, 2018

JULIAN G. DEMEDEIROS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          PAUL D. STICKNEY UNITED STATES MAGISTRATE JUDGE.

         This case has been referred to United States Magistrate Judge Paul D. Stickney. Before the Court is Motion to Dismiss Plaintiff's Complaint [ECF No. 7] (“Motion to Dismiss”) filed by Defendant Nancy A. Berryhill, Acting Commissioner of the Social Security Administration (the “Commissioner”) on May 12, 2017. Plaintiff Julian G. deMedeiros (“Plaintiff”) failed to timely file a response. Therefore, on June 9, 2017, the undersigned recommended that the District Court grant the Commissioner's Motion to Dismiss. See Findings, Conclusions, & Recommendation, ECF No. 8. On June 12, 2017, Plaintiff filed his Motion for 30-Day Extension of Time to File Objections to Defendant-Respondent's Motion to Dismiss [ECF No. 10]. The undersigned granted Plaintiff's motion, vacated the June 9, 2017 Findings, Conclusions, and Recommendation, and ordered Plaintiff to file his response to the Motion to Dismiss by July 12, 2017. See Electronic Order, ECF Nos. 11 & 12. However, as of the date of this Findings, Conclusions, and Recommendation, which is over five months beyond the July 12, 2017 due date for Plaintiff's response to the Commissioner's Motion to Dismiss, Plaintiff still has not filed the response. In consideration of the foregoing, the undersigned recommends that the District Court GRANT the Commissioner's Motion to Dismiss [ECF No. 7].

         BACKGROUND

         On January 23, 2017, Plaintiff Julian G. deMedeiros (“Plaintiff”) filed this lawsuit alleging that the Commissioner wrongfully suspended his benefits on the ground that he was not lawfully present in the United State, even though he is a permanent resident of the United States. Compl. 5-6, ECF No. 3. Plaintiff attaches to his Complaint a copy of his green card. Ex. 1, ECF No. 3 at 11. Plaintiff states that he “has been diagnosed with the terminal disease of multiple myeloma metastasized cancer of the blood and bones all throughout his body; in the past two years[.]” Compl. 2, ECF No. 3. Plaintiff also states that he “has undergone heavy chemotherapy treatment followed by a stem cell transplant and major back surgery, and also [was] hospitalized for a pulmonary embolism and Sepsis[.]” Compl. 2, ECF No. 3. Plaintiff further states that he “is in need of continuing daily chemotherapy treatment (Revlimid), monthly infusions of Zometa (zoledronic acid), and other special medications for the rest of his life[.]” Compl. 2, ECF No. 3. Therefore, Plaintiff states that “[a]ny interruption of such much needed continuing chemotherapy treatment, infusions, blood testing and monitoring, and deprivation of other critical medications even for short periods of time, will cause [his] condition to rapidly deteriorate and cause [his] early death, necessitating the Court's immediate intervention.” Compl. 2, ECF No. 3.

         STANDARD OF REVIEW

         “Federal courts are courts of limited jurisdiction; therefore, they have the power to adjudicate claims only when jurisdiction is conferred by statute or the Constitution.” Brown v. Peterson, No. 7:03-CV-205-R, 2006 WL 349805, at *4 (N.D. Tex. Feb. 3, 2006) (citing Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994); Stockman v. Fed. Election Comm'n, 138 F.3d 144, 151 (5th Cir. 1998)). “A motion to dismiss filed under Rule 12(b)(1) challenges a federal court's subject matter jurisdiction.” Id. “A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Id. (citing Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998)). “The party wishing to invoke the court's jurisdiction bears the burden of proving that subject matter jurisdiction exists.” Id. (citing Rodriguez v. Tex. Comm'n on the Arts, 992 F.Supp. 876, 879 (N.D. Tex. 1998)). “When the court dismisses because the plaintiff lacks subject matter jurisdiction, that dismissal ‘is not a determination of the merits and does not prevent the plaintiff from pursuing a claim in a court that does have proper jurisdiction.'” Hamlett v. Ashcroft, No. 3:03-CV-2202-M (BH), 2004 WL 813184, at *2 (N.D. Tex. Apr. 14, 2004) (quoting Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001)).

         “In ruling on a motion to dismiss for lack of subject matter jurisdiction, a court may evaluate the complaint alone, the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the courts resolution of disputed facts.” Peterson, 2006 WL 349805, at *4 (citing Den Norske Stats Oljeselskap As v. HeereMac V.O.F., 241 F.3d 420, 424 (5th Cir. 2001)). “There are two types of challenges to a court's subject matter jurisdiction under Rule 12(b)(1): ‘facial' attacks and ‘factual' attacks.” Id. (citing Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981); Brooks v. Snow, 313 F.Supp.2d 654, 658 (S.D. Tex. 2004)). “A facial attack, which consists of a Rule 12(b)(1) motion unaccompanied by supporting evidence, challenges jurisdiction based solely on the pleadings.” Id. (citing Weinberger, 644 F.2d at 523). “When ruling on a facial attack, the court must presume that factual allegations in the complaint are true and determine whether they establish subject matter jurisdiction.” Id. “By contrast, a Rule 12(b)(1) motion presents a factual attack when the motion is accompanied by supporting evidence that contradicts the jurisdictional allegations in the complaint.” Id. “In a factual attack, the plaintiff bears the burden of proving by a preponderance of the evidence that the court has subject matter jurisdiction.” Id.

         DISCUSSION

         In the Motion to Dismiss, the Commissioner asks the Court to dismiss this case because Plaintiff has not received a final decision from the Commissioner as necessary to obtain judicial review by a district court under Title 42, United States Code, Section 405(g) (“Section 405(g)”). Mot. 1, ECF No. 7. The Commissioner submits the declaration of Cristina Prelle, Chief of Court Case Preparation and Review Branch 4 of the Office of Appellate Operations, Office of Disability Adjudication and Review, Social Security Administration. Decl., ECF No. 7-1 at 2-4. Ms. Prelle states that Plaintiff's May 6, 2016 request for review of the Administrative Law Judge's March 2, 2016 unfavorable decision is pending with the Appeals Council. Decl., ECF No. 7-1 at 4. Therefore, the Commissioner asks that the Court dismiss Plaintiff's case because Plaintiff failed to exhaust his administrative remedies. Mot. 1, ECF No. 7.

         Section 405(g) provides that “[a]ny individual, after any final decision of the Commissioner of Social Security . . . may obtain a review of such decision by a civil action . . . in the district court of the United States[.]” 42 U.S.C. § 405(g). Furthermore, Section 405(h) states that:

No findings of fact or decision of the Commissioner of Social Security shall be reviewed by any person, tribunal or governmental agency except as herein provided. No. action against the United States, the Commissioner of Social Security, or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter.

42 U.S.C. § 405(h). The Social Security Act “does not define ‘final decision, '” but leaves “it to the SSA to give meaning to that term through regulations.” Sims v. Apfel, 530 U.S. 103, 106 (2000) (citing 42 U.S.C. § 405(a); Weinberger v. Salfi, 422 U.S. 749, 766 (1975)). “SSA regulations provide that, if the Appeals Council grants review of a claim, then the decision that the Council issues is the Commissioner's final decision.” Id. However, if “the Council denies the request for review, the ALJ's opinion becomes the final decision.” Id. (citing 20 C.F.R. §§ 404.900(a)(4)-(5), 404.955, 404.981, 422.210(a)). If the “claimant fails to request review from the Council, there is no final decision and as a result, no judicial review in most cases.” Id. (citing 20 C.F.R. § 404.900(b); Bowen v. City of New York, 476 U.S. 467, 482-83 (1986)). “In administrative-law parlance, such a claimant may not obtain judicial review because he has failed to exhaust administrative remedies.” Id. (citing Salfi, 422 U.S. at 765-66).

         Exhaustion may not be required where a plaintiff seeks relief in federal court for a colorable constitutional claim. Walker v. Astrue, No. 7:11-CV-22-O (BH), 2011 WL 3348059, at *3 n.1 (N.D. Tex. Jul. 13, 2011) (citing Califano v. Sanders, 430 U.S. 99, 108 (1977); Robertson v. Bowen, 803 F.3d 808, 810 (5th Cir. 1986)). “[R]ecognizing the potential frustration of the congressional purpose of § 405(g) that could result from claimants being allowed virtually unending access to judicial review . . . the Fifth Circuit Court of Appeals concluded that judicial review . . . is only allowed when a plaintiff can prove a ‘colorable constitutional claim.'” Valdez v. Astrue, No. 3:11-CV-883-K (BK), 2011 WL 5525751, at *2 (N.D. Tex. Oct. 17, 2011) (citing Robertson, 803 F.2d at 810). “Proof that a colorable constitutional claim exists must be based on more than mere conclusional allegations of due process violations.” Id. “To that end, Plaintiff must do more than simply allege that her due process rights were violated.” Id. (citing Robertson, 803 F.2d at 810; Koerpel v. Heckler, 797 F.2d 858, 863 (10th Cir. 1986)).

         Nevertheless, if Plaintiff's constitutional claim arises under the Social Security Act, Plaintiff is still required to comply with the requirements in Section 405(h). See Edwards v. Burwell, No. 3:14-CV-3124-B, 2015 WL 4131616, at *4 (N.D. Tex. Jul. 8, 2015), aff'd, 657 F. App'x 242 (5th Cir. 2016), cert. denied, 137 S.Ct. 639 (2017) (“Although Plaintiff argues that this action is focused on his constitutional claim . . . which he states has no connection to the policy or procedure guiding the review of [the] claims, the Supreme Court has established that the constitutional nature of a claim does not exempt a plaintiff from the requirements set forth in 42 U.S.C. § 405(h).” (citing Salfi, 422 U.S. at 760-61; Physican Hosps. of Am. v. Sebelius, 691 F.3d 649, 656 (5th Cir. 2012)); Heckler v. Ringer, 466 U.S. 602, 615 (1984) (“Thus, to be true to the language of the statute, the inquiry in determining whether 405(h) bars federal-question jurisdiction must be whether the claim ‘arises under' the Act.”). The United States Supreme Court “established that a claim arises under the [] Act if the Act ‘provides both the standing and the substantive basis' for the asserted action.” Burwell, 2015 WL 4131616, at *4 (citing Salfi, 422 U.S. at 760-61). “A claim also arises under the Act if it is ‘inextricably intertwined' with a claim for [] benefits and would require the court to review the [] claim determinations in resolving the matter.” Id. (citing Marsaw v. Thompson, 133 F. App'x 946, 948 (5th Cir. ...


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