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Duong v. Colvin

United States District Court, S.D. California

June 16, 2014

VIET HOANG DUONG, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER

WILLIAM Q. HAYES, District Judge.

The matters before the Court are (1) the Motion to Dismiss and to Strike ("Motion to Dismiss"), filed by Defendant Carolyn W. Colvin, Acting Commissioner of Social Security ("Defendant" or "SSA") (ECF No. 13), and (2) the Motion to Sever, filed by Plaintiff Viet Hoang Duong ("Plaintiff") (ECF No. 14).

I. Background

On November 12, 2013, Plaintiff, represented by attorney Alexandra T. Manbeck ("Manbeck"), initiated this action by filing a Complaint in this Court. (ECF No. 1). The Complaint alleges that "[t]his is an action... to obtain judicial review of a final decision by the defendant, the Commissioner of Social Security, denying the plaintiff's claim for Supplemental Security Income benefits under Title II and Title XVI of the Social Security Act...." Id. at 2. The Complaint alleges that jurisdiction is conferred by, inter alia, 42 U.S.C. ยง 405(g) and "the First and Fifth Amendments to the United States Constitution." Id.

On February 7, 2014, Defendant filed the Motion to Dismiss, accompanied by evidentiary materials. (ECF No. 13). Defendant seeks dismissal of the Complaint for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).

On February 17, 2014, Plaintiff filed the Motion Sever. (ECF No. 14). Plaintiff contends that this case was erroneously transferred pursuant to the "low number rule, " S.D. Cal. Civil Local Rule 40.1, and consolidated with Phan v. Colvin, S.D. Cal. Case No. 13cv2096-WQH-NLS. On March 3, 2014, Defendant filed an opposition to the Motion to Sever. (ECF No. 15).

On March 4, 2014, Plaintiff filed an opposition to the Motion to Dismiss, accompanied by evidentiary materials. (ECF No. 16). On March 10, 2014, Defendant filed a reply in support of the Motion to Dismiss. (ECF No. 18).

A. Evidentiary Materials

On June 28, 2011, Plaintiff filed applications with the SSA for a period of disability and disability insurance benefits and supplemental security income, which were denied initially on November 10, 2011, and upon reconsideration on May 11, 2012. (Weigel Decl., Exs. 1a & 1b, ECF Nos. 13-3 & 13-4). These denials list Plaintiff's address as 1744 Elfin Forest Rd., Apt. 157, San Marcos, California ("San Marcos address") and Manbeck's address as 4531 University Ave., San Diego, California ("San Diego address"). Id. The May 11, 2012 denial letter states that Plaintiff has 60 days to ask for a hearing, which starts "the day after you get this letter." (Weigel Decl., Ex. 1b, ECF No. 13-4 at 4). The May 11, 2012 letter states: "We assume you got this letter 5 days after the date on it unless you show us that you did not get it within the 5-day period. You must have good reason for waiting more than 60 days to ask for a hearing." Id.

On July 30, 2012, Plaintiff personally appeared at an SSA office and filed multiple requests for a hearing by an administrative law judge ("ALJ"). (Weigel Decl., Ex. 2, ECF No. 13-5; Weigel Decl., Ex. 3b, ECF No. 13-7 at 6; Pl. Ex. 5, ECF No. 16-5; Suppl. Borrowman Decl, Ex. 2, ECF No. 18-2). In one request, Plaintiff provided his San Marcos address and provided Manbeck's San Diego address. (Suppl. Borrowman Decl, Ex. 2, ECF No. 18-2). In another request, Plaintiff indicated his address was 6432 O'Lea Ln., Apt. 101, Carlsbad, California ("Carlsbad address"), and indicated Manbeck's address was P.O. Box 449, Cross River, New York ("New York address"). (Pl. Ex. 5, ECF No. 16-5). In another request, Plaintiff provided his Carlsbad address, but did not give an address for Manbeck. (Weigel Decl., Ex. 3b, ECF No. 13-7 at 6). An SSA employee prepared a document entitled, "Request for Hearing by Administrative Law Judge, " in which Plaintiff's address is listed as the San Marcos address and Plaintiff acknowledges that "the request for hearing is not timely filed." (Weigel Decl., Ex. 2 at 2, ECF No. 13-5).

Also on July 30, 2012, Plaintiff submitted to the SSA a "Statement of Good Cause." (Pl. Ex. 5, ECF No. 16-5 at 2; Borrowman Decl., Ex. 1, ECF No. 13-10 at 1). In the Statement of Good Cause, Plaintiff asserted that on July 27, 2012, he personally visited a Social Security Administration office "and was informed that [he] failed to timely file a request for a hearing." (Pl. Ex. 5, ECF No. 16-5 at 2). Plaintiff asserted that he "checked [his] mailbox on a daily basis, " but he "never received the denial letter dated May 11, 2012." Id. Plaintiff asserted that "neither I nor my attorney... received the May 11, 2012 Notice of Denial." Id.

On August 10, 2012, the SSA sent Manbeck a document at the New York address stating that a form she submitted was not able to be processed. (Pl. Ex. 6, ECF No. 16-6 at 2).

On August 22, 2012, the SSA sent a letter to Plaintiff at the San Marcos address and Manbeck at the San Diego address, which confirms Plaintiff's request for a hearing before an ALJ and "explains the hearing process and things that [Plaintiff] should do now to get ready for [the] hearing." (Pl. Ex. 9, ECF No. 16-7 at 12).

On September 26, 2012, the SSA sent a letter to Manbeck at the San Diego address, referencing Plaintiff's request for a hearing and enclosing a CD containing the SSA's file in Plaintiff's case. (Pl. Ex. 10, ECF No. 16-7 at 15). The SSA sent a copy of the September 26, 2012 letter to Plaintiff at the San Marcos address. Id. at 16.

On November 16, 2012, the SSA sent a letter to Plaintiff at the San Marcos address, which contains the same information as the August 22, 2012 letter. (Pl. Ex. 11, ECF No. 16-7 at 18). On December 3, 2012, the SSA sent a letter to Plaintiff at the San Marcos address and Manbeck at the San Diego address, which contains the same information as the August 22, 2012 and the November 16, 2012 letters. (Pl. Ex. 12, ECF No. 16-7 at 20-21).

On May 20, 2013, the ALJ issued a two-page "Order of Dismissal." (Weigel Decl., Ex. 3a, ECF No. 13-6 at 4-5). The ALJ stated:

These claims were denied initially on November 10, 2011 and upon reconsideration on May 11, 2012. Thereafter, the claimant filed an untimely written Request for Hearing on July 30, 2012. The claimant is represented by Alexandra T. Manbeck, Attorney at Law.
An Administrative Law Judge may dismiss a Request for Hearing if the claimant did not request same within the stated time period and no ...

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