United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
F. BRENNAN UNITED STATES MAGISTRATE JUDGE
proceeding pro se, seeks review of decisions of the
Commissioner of Social Security's
(“Commissioner”) denying his application for
Childhood Disability Benefits (“CDB”) and finding
overpayment of disability benefits. The Commissioner moves to
dismiss the complaint for lack of subject matter
jurisdiction, arguing that plaintiff failed to exhaust his
administrative remedies. ECF No. 21. For the following
reasons, it is recommended that the motion be granted and the
action dismissed for lack of jurisdiction.
Commissioner previously found that plaintiff was disabled
under Title XVI of the Social Security Act (the
“Act”) as of July 1, 1991, and plaintiff started
receiving Supplemental Security Income (“SSI”)
that same month. Declaration of Mai Huynh
(“Huynh”), ECF No. 21-1, ¶ a. In 2008, the
Social Security Administration (the “agency”)
reviewed plaintiff's file and discovered he was eligible
for Disability Insurance Benefits (“DIB”) under
Title II of the Act. Id. ¶ b. The agency
contacted plaintiff and scheduled a meeting to obtain
information needed to complete a medical determination.
Id. ¶ d. The appointment was scheduled for
August 29, 2008, but plaintiff failed to appear for the
appointment. Id. ¶ e.
October 2008, plaintiff went to an agency field office and
completed his DIB application. Id. ¶ h. The
application was granted and the Commissioner determined that
plaintiff was entitled to DIB effective June
1993. Id. ¶ i. After offsetting
the amount for the SSI benefits plaintiff had received over
the prior 16 years, the Commission paid plaintiff $3, 000 in
back payments for his DIB, and in March 2009 plaintiff began
receiving both SSI and DIB payments. Id. ¶ l.
Also in October 2008, plaintiff filed an application for
Childhood Disability Benefits (“CDB”).
Id. ¶ y. That application was denied because
plaintiff failed to show that he was disabled prior to age
22. Id. ¶ z.
2015, the agency suspended plaintiff's SSI payments
because he had failed to provide necessary information to the
agency. Id. ¶ o; See 20 C.F.R. §
416.714 (providing that the agency may “request a
report from you if [it] need[s] information to determine
continuing eligibility, ” and that benefits will be
suspended should the information not be provided). Plaintiff
subsequently appeared at an agency field office, but he
declined to provide information regarding his living
arrangement, income, and resources. Id. ¶ p.
Consequently, the agency did not have the information needed
to reinstate his SSI payments. Id. A field office
technician advised plaintiff that a representative payee
could help him with his reporting responsibilities, but
plaintiff was not assigned a representative payee.
Id. ¶ r.
never provided the information sought by the agency, and his
SSI benefits remained suspended until July 20, 2016, at which
time they were terminated. Id. ¶ s;
see 20 C.F.R. § 416.1335 (providing that
eligibility for SSI benefits will be terminated
“following 12 consecutive months of benefit suspension
for any reason . . . .”). To make matters worse for
plaintiff, the State of California ceased subsidizing his
Medicare premiums in November 2015. The agency, however, did
not immediately begin deducting the Medicare premiums, which
were $104.90 a month, from his DIB payments, resulting in
overpayment of $104.90 in each subsequent month. Id.
¶ v. To recoup the overpayments-as well as to recover
SSI overpayments caused by plaintiff's failure to provide
information regarding his living arrangement, income, and
resources-plaintiff's DIB account was placed in deferred
status. Id. ¶ w.
never appealed the Commissioner's decision finding an
overpayment, id. ¶ x, nor did he appeal the
2008 denial of his application for Childhood Disability
Benefits, id. ¶ bb.
argues that plaintiff's complaint must be dismissed
because he failed to exhaust his administrative remedies
prior to filing this action. ECF No. 15 at 2-3.
sovereign, the United States is immune from suit except
according to its consent to be sued. Lehman v.
Nakshian, 453 U.S. 156, 160 (1981). It necessarily
follows where Congress waives the immunity of the United
States any terms and conditions that it places on the waiver
are jurisdictional and must be strictly construed. See
Block v. North Dakota ex rel. Board of Univ. and School
Lands, 461 U.S. 273, 287 (1983); Jerves v. United
States, 966 F.2d 517, 521 (9th Cir. 1992).
U.S.C. § 405(g) provides a limited waiver of sovereign
immunity by permitting district courts to review a
“final decision” of the Commissioner of Social
Security. A claimant may obtain a final decision
from the Commissioner only by proceeding through all stages
of the administrative appeals process. Bowen v. City of
New York, 476 U.S. 467, 482 (1986). The stages of the
appeals process consists of: 1) initial determination; 2)
reconsideration; 3) hearing before an ALJ; and 4) Appeals
Council review. Only upon the Appeals Council issuing a
decision or declining review may a claimant seek review in a
federal district court. 20 C.F.R. § 404.981.
exhaustion requirement, however, may be waived where the
claim is “(1) collateral to a substantive claim of
entitlement (collaterality), (2) colorable in its showing
that denial of relief will cause irreparable harm
(irreparability), and (3) one whose resolution would not
serve the purposes of exhaustion (futility).”
Kildare v. Saenz, 325 F.3d 1078, 1082 (9th Cir.
2003). All three factors must be established to waive the
exhaustion requirement. Kaiser v. Blue Cross of
California, 347 F.3d 1107, 1115 (9th Cir. 2003).
evidence submitted by the Commissioner demonstrates that
plaintiff did not seek administrative review of the
agency's initial decisions denying his application for
CDB and finding an overpayment of disability
benefits. Plaintiff does not dispute that he failed
to obtain administrative review. Instead, he appears to
contend that any attempt to exhaust his administrative
remedies would have been futile. ECF No. 34 at 2 (arguing
that exhaustion is not “required when the
administrative remedy [is] shown to be inadequate or would be
futile.”). Plaintiffs belief that seeking
administrative review would have resulted in an adverse
decision does not excuse ...