United States District Court, E.D. North Carolina, Western Division
MEMORANDUM AND RECOMMENDATION
B. Jones United States Magistrate Judge
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. [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
STATEMENT OF THE CASE
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. Id; see also 20 C.F.R.
§§ 404.430, 404.434.
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.
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).
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.
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.
Substantial evidence supports the ALJ's
Standard of Review
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).
Substantial evidence supports the ALJ's factual
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,
2. The claimant's application was approved, and she was
found eligible for Title II retirement benefits as of January
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
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.
substantial evidence supports the ALJ's factual findings.
The ALJ applied the correct legal standards.
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." Id.
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
Claimant has standing in this court to bring her
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 .
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).
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 ...