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Gibbon v. Berryhill

United States District Court, E.D. North Carolina, Western Division

February 22, 2019

DENISE GIBBON, Plaintiff/Claimant,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND RECOMMENDATION

          Robert B. Jones United States Magistrate Judge

         This matter is before the court on the Claimant's motion for judgment on the pleadings [DE-27], Defendant's motion to affirm the Commissioner's decision [DE-29], and Defendant's motion to dismiss for lack of jurisdiction or, in the alternative, motion for judgment on the pleadings [DE-30]. Claimant Denise Gibbon ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her request to withdraw her application for Title II retirement benefits. Claimant responded to Defendant's motions [DE-35], Defendant replied to Claimant's response [DE-37], and Claimant filed a surreply.[1] [DE-40]. Accordingly, the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's motion for judgment on the pleadings be denied, Defendant's motion to affirm the Commissioner's decision be allowed, Defendant's motion to dismiss or for judgment on the pleadings be allowed, and the final decision of the Commissioner be upheld.

         I. STATEMENT OF THE CASE

         Claimant reached age sixty two in August 2009, and she filed an application for Title II retirement benefits on October 20, 2009. (R. 11, 26-30). The Social Security Administration ("SSA") found her eligible for retirement benefits with an entitlement date of January 1, 2010. (R. 11, 31-33). However, because Claimant's estimated earnings in 2010 exceeded the earnings threshold for individuals not at full retirement age, a portion of Claimant's benefits were withheld, resulting in no payments from January through August 2010.[2] Id; see also 20 C.F.R. §§ 404.430, 404.434.

         Claimant began receiving benefits in September 2010. (R. 11, 35-38). Claimant thought that she received the September payment in error, and therefore she met with an SSA employee in October 2010, offering to return her benefits. Pl's Mem. [DE-28] at 6. The SSA employee explained that Claimant's payments from January through August 2010 had been offset and that the September 2010 payment was correct. Id. The SSA employee told Claimant further that she could request to withdraw her application for early retirement benefits and repay all previously earned benefits. Id. Doing so would allow Claimant to file an application upon reaching full retirement age and enjoy a greater benefit amount. 20 C.F.R. §§ 404.409, 404.603. The SSA employee advised Claimant that some people choose to accept early retirement benefits, wait until shortly before they reach full retirement age to request to withdraw their applications, and pay back the full amount received at that time, resulting in figurative "interest-free loans" from the SSA. Pl's Mem. [DE-28] at 7. According to Claimant, she decided to pursue that course of action, so she did not immediately request to withdraw her application. Id.

         On December 8, 2010, the SSA revised 20 C.F.R. § 404.640(b)(4) (hereinafter referred to as "the new regulation"). Under the new regulation, a claimant can only withdraw her application for early retirement benefits within twelve months of the first month of entitlement and can only withdraw once per lifetime. Claimant's date of eligibility for early retirement benefits was in January 2010; therefore, under the new regulation, her deadline to withdraw her application was the end of January 2011. (R. 11, 31-33); 20 C.F.R. § 404.640(b)(4)(i).

         Claimant learned of the new regulation in April 2011 and applied to withdraw her application for early retirement benefits on May 3, 2011. Pl's Mem. [DE-28] at 7; (R. 58-60). Her request was denied at the initial and reconsideration administrative levels because it was made more than twelve months after her first month of eligibility. (R. 11-12, 113-16, 126-28). A hearing before the Administrative Law Judge (" AL J") was held on May 7, 2015, at which Claimant was represented by counsel and appeared and testified. (R. 12, 450-74). On August 21, 2015, the ALJ issued a decision denying Claimant's request to withdraw her application. (R. 8-15). Claimant then requested a review of the ALJ's decision by the Appeals Council (R. 398), and she submitted additional evidence as part of her request (R. 399-449). After reviewing and incorporating the additional evidence into the record, the Appeals Council denied Claimant's request for review on August 21, 2015. (R. 4-7). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.

         II. DISCUSSION

         Claimant brings her motion for judgment on the pleadings under Fed. R. Civ. R 12(c). Pl's Mem. [DE-28] at 3. She also brings her motion under Fed.R.Civ.P. 59(e) and requests the court to alter or amend the ALJ's judgment. Id. Thirdly, Claimant brings her motion under Fed.R.Civ.P. 60(b)(6) and requests other relief. Id. Claimant makes several constitutional arguments regarding retroactivity, equal protection, notice, procedural due process, and the Contracts Clause. Id. at 13-45. Defendant responds to Claimant's constitutional arguments and contends that Claimant lacks standing to bring her claims. Def.'s Mem. [DE-31] at 9-30. The court will first discuss Claimant's challenge to the ALJ's decision, it will next address jurisdiction and standing, and it will thirdly discuss Claimant's constitutional arguments.

         A. Substantial evidence supports the ALJ's decision.

         1. Standard of Review

         The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). "The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, '439-40 (4th Cir. 1997).

         2. Substantial evidence supports the ALJ's factual findings.

         The ALJ's findings of fact were as follows:

1. The claimant was 62 years old when she filed an application for Title II retirement benefits on October 20, 2009.
2. The claimant's application was approved, and she was found eligible for Title II retirement benefits as of January 1, 2010.
3. Due to her reported expected income for 2010, the claimant's Title II retirement benefits were offset and she did not actually begin receiving benefit payments until September 2010.
4. The claimant accepted Title II retirement benefit payments beginning in September 2010 and continued receiving the benefits throughout the remainder of 2010 and into 2011.
5. On May 3, 2011, the claimant filed a written request to withdraw her application for Title II retirement benefits.
6. The claimant's request for withdrawal was filed more than 12 months after the first month she was entitled to Title II retirement benefits (January 2010).

(R. 12-14) (citations omitted). Claimant does not appear to challenge the ALJ's factual findings; indeed, they align with her sworn declaration. Decl. in Supp. of Pl's Mem. [DE-28-2] at 1-4.

         Accordingly, substantial evidence supports the ALJ's factual findings.

         3. The ALJ applied the correct legal standards.

         At her hearing, Claimant contended that she did not receive proper notice of the new regulation, that she had only a brief window in which to withdraw her application, that she acted in good faith, and that her due process rights were violated. (R. 14). The ALJ declined to address those arguments and stated that he was "bound to follow all clearly articulated law and policy contained in the Social Security Act, Social Security Regulations, Social Security Rulings and Acquiescence Rulings, POMS, HALLEX, and other sources binding on [him] as an employee of SSA." (R. 15). Because Claimant applied to withdraw her application more than twelve months after her first month of eligibility, the ALJ denied her request to withdraw in accordance with a plain application of the new regulation. (R. 14). The ALJ clearly articulated in his opinion that Claimant was free to pursue her constitutional and other arguments in a federal court. (R. 15). In a footnote, the ALJ wrote, "It is clear on its face that the revised 20 CFR 404.640 applies retroactively and to all applications and contains no exceptions and remains in effect."[3] Id.

         The ALJ applied the correct legal standards. His purview was limited to applying the regulations to Claimant's case; the ALJ could not address Claimant's constitutional and other arguments. Califano v. Sanders, 430 U.S. 99, 109 (1977) ("Constitutional questions obviously are unsuited to resolution in administrative hearing procedures"); Shrader v. Harris, 631 F.2d 297, 302 (4th Cir. 1980) ("The judiciary, and not the Secretary, is the appropriate forum for the resolution of constitutional issues"). The ALJ appropriately based his decision upon the regulations and the Social Security Act, and he left Claimant's constitutional arguments for resolution by the District Court. Accordingly, the ALJ applied the correct legal standards, and his decision is supported by substantial evidence.

         B. Claimant has standing in this court to bring her constitutional claims.

         Although the ALJ's decision was supported by substantial evidence, Claimant may nonetheless raise "general collateral challenges to unconstitutional practices and policies" in her appeal to this court. McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 492 (1991); Low v. Berryhill, 334 F.Supp.3d 1165, 1169 (W.D. Wash. 2018) (finding that judicial review is not restricted to the ALJ's decision and addressing the claimant's retroactivity argument). However, Claimant must show that she has standing to bring her constitutional claims. Davis v. Fed. Election Comm 'n, 554 U.S. 724, 734 (2008) ('"a plaintiff must demonstrate standing for each claim he seeks to press' and 'for each form of relief that is sought.") (quoting Daimler Chrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)). Defendant argues that Claimant does not have standing to bring constitutional claims because she has not suffered an injury in fact and, if there were an injury, a favorable decision here is unlikely to redress it. Def.'s Mem. [DE-31] at 11-15. The court . disagrees.

         The judiciary only has power to resolve "Cases" and "Controversies." U.S. Const, art. III, § 2. "Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy," which a plaintiff must establish. Spokeo v. Robins, __ U.S. __, 136 S.Ct. 1540, 1547 (2016). Standing consists of three elements: (1) "an injury in fact," (2) "a causal connection between the injury and the conduct complained of," and (3) a likelihood that the injury would be "redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (citations omitted).

         The first element, an injury in fact, is "an invasion of a legally protected interest which is (a) concrete and particularized, and (b) 'actual or imminent, not conjectural or hypothetical.'" Id. at 560 (citations omitted). A "concrete" injury is "de facto, that is, it must actually exist." Spokeo, 136 S.Ct. at 1548-49. A "particularized" injury is one in which the plaintiff "personally has suffered" the injury. Id. at 1548 (citing United States v. Richardson,418 U.S. 166, 177 (1974)). An "actual or imminent" injury is one that is more than mere foreclosure of a plan or intention. Lujan, 504 U.S. at 559, 563-64 (holding that the plaintiffs' "some day intentions" to travel abroad to observe ...


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