NELSON v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
KENNETH P. NELSON, 	)
)
Plaintiff 	)
)
v. 	) 	1:24-cv-00326-LEW
)
CAROLYN COLVIN, Acting 	)
Commissioner of Social Security, 	)
)
Defendant 	)
RECOMMENDED DECISION ON MOTION TO DISMISS
Defendant moves to dismiss Plaintiff’s complaint pursuant to Federal Rules of Civil
Procedure 12(b)(6) for failure to state a claim. (Motion, ECF No. 12.) Following a review
of the parties’ submissions, I recommend the Court grant the motion.
FACTUAL AND PROCEDURAL BACKGROUND1
Plaintiff applied for disability insurance benefits in 2011.2 (See Plaintiff’s Response
to Motion to Dismiss at 1, ECF No. 13.) 	In 2014, an ALJ denied the application. 	(Id.)
Plaintiff appealed from the decision to this Court, which affirmed the ALJ’s decision.
Nelson v. Colvin, No. 1:15-cv-450-JAW, 2016 WL 4506976, at *1 (D. Me. Aug. 26, 2016).
Plaintiff appealed to the First Circuit, which affirmed the decision, Nelson v. Berryhill, No.
1 The facts set forth below are derived from Plaintiff’s complaint and the record. 	Plaintiff’s factual
allegations are deemed true when evaluating a motion to dismiss. McKee v. Cosby, 874 F.3d 54, 59 (1st
Cir. 2017).
2 Plaintiff appears to have also applied in 2009, but that application is not relevant. (See Letter at 1, ECF
No. 1-1.)
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16-2236, 2018 WL 565777, at *1 (1st Cir. 2018), and then to the United States Supreme
Court, which denied certiorari. Nelson v. Berryhill, 586 U.S. 883 (2018).
In 2019, Plaintiff again applied for disability insurance benefits.3 (Motion at 1.) In
2023, an ALJ issued a fully favorable decision finding Plaintiff had been disabled since
September 1, 2015. (Id. at 2; Plaintiff’s Response at 12–18.) Upon Plaintiff’s request, the
Appeals Council reviewed the decision and remanded it for further proceedings. (Motion
at 2.) In July 2024, an ALJ issued a new, fully favorable decision again finding Plaintiff
disabled since September 1, 2015. (Id.)
Plaintiff filed the present complaint on September 18, 2024. Plaintiff cites the date
of his receipt of the 2024 decision as evidence that he timely filed his complaint. (Exhibit
1 to Complaint, ECF No. 1-1.) Plaintiff’s allegations, however, focus on Defendant’s 2014
decision denying Plaintiff’s request for benefits. Plaintiff alleges in relevant part:
The ALJ ignored probative evidence contained within the record that would
have 	changed 	the 	outcome. 	3 	of 	the 	medical 	experts 	submitted 	in 	the
chronological 	medical 	opinions 	of 	record 	were 	as 	stated 	by 	the
commissioner[’]s attorney predated the hearing onset date by more than a year.
Brief conclusory statements were mere checking of the boxes are entitled to
relatively little weight.
………
This agency came into this very court and presented flagrant 	evidence,
intentional fraud committed by an officer of the court. Intentional fraud directed
at the judicial machinery itself, the intentional fraud deceived the court. That is
the Supreme Court[’]s prerequisite for a fraud upon the court.
………
3 At this time, Plaintiff also applied for supplemental security income, which application was granted.
(Motion at 1–2.)
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The agency cherry-picked, failed to follow their own rules, which are binding
on the agency by law, used post hawk [sic] rationales which are forbidden by
courts, ignored probative evidence, a neurologist, 2 pain specialists, and a
psychiatrist.
(Complaint at 2-3, ECF No. 1.)
LEGAL STANDARD
In reviewing a motion to dismiss under Rule 12(b)(6), a court “must evaluate
whether the complaint adequately pleads facts that ‘state a claim to relief that is plausible
on its face.’” 	Guilfoile v. Shields, 913 F.3d 178, 186 (1st Cir. 2019) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In doing so, a court must “assume the truth
of all well-pleaded facts and give the plaintiff the benefit of all reasonable inferences
therefrom,” but need not “draw unreasonable inferences or credit bald assertions [or] empty
conclusions.” Id. (alteration in original) (internal quotation marks omitted); see Bruns v.
Mayhew, 750 F.3d 61, 71 (1st Cir. 2014) (“[A] court is ‘not bound to accept as true a legal
conclusion couched as a factual allegation.’” (quoting Twombly, 550 U.S. at 555)). Federal
Rule of Civil Procedure 12(b)(6) “demands more than an unadorned, the-defendant-
unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
To evaluate the sufficiency of the complaint, therefore, a court must “first, ‘isolate
and ignore statements in the complaint that simply offer legal labels and conclusions or
merely rehash cause-of-action elements,’ then ‘take the complaint’s well-pled (i.e., non-
conclusory, non-speculative) facts as true, drawing all reasonable inferences in the
pleader’s favor, and see if they plausibly narrate a claim for relief.’” Zell v. Ricci, 957 F.3d
1, 7 (1st Cir. 2020) (alteration omitted) (quoting Zenon v. Guzman, 924 F.3d 611, 615-16
(1st Cir. 2019)).
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“A self-represented plaintiff is not exempt from this framework, but the court must
construe his complaint ‘liberally’ and hold it ‘to less stringent standards than formal
pleadings drafted by lawyers.’” 	Waterman v. White Interior Sols., No. 2:19-cv-00032-
JDL, 2019 WL 5764661 at *2 (D. Me. Nov. 5, 2019) (quoting Erickson v. Pardus, 551
U.S. 89, 94 (2007)).
DISCUSSION
While the exact nature of Plaintiff’s complaint is not entirely clear, Plaintiff
apparently asks the Court to review Defendant’s most recent administrative decision,
reopen his 2011 application, and/or revisit the Court’s decision to affirm Defendant’s 2014
decision.
A. 	Judicial Review of 2024 Decision
Pursuant to 42 U.S.C. § 405(g), individuals may obtain judicial review only of
“final” decisions of the Commissioner of Social Security. 	“The ‘final decision’ required
to invoke jurisdiction in a federal court has been interpreted by the Supreme Court to mean
‘that the administrative remedies prescribed by the Secretary be exhausted.’” 	Serrano v.
Astrue, No. 08-1312(JAG), 2009 WL 890480, at *2 (D.P.R. Mar. 24, 2009) (quoting
Mathews v. Eldridge, 424 U.S. 319, 328 (1976)). To obtain a judicially reviewable “final
decision” claimants must complete a four-step administrative review process. 	Id.; 20
C.F.R. 	§ 	404.900(a). 	Those 	four 	steps 	include: 	(1) 	initial 	determination, 	(2)
reconsideration, (3) hearing before an administrative law judge, and (4) Appeals Council
review. 20 C.F.R. § 404.900(a)(1–4).
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Here, Plaintiff does not assert that he asked the Appeals Council to review the July
2024 decision. 	The uncontroverted record evidence establishes that Plaintiff did not
request a review by the Appeals Council. (Declaration of Arin Levin ¶ 3(d), ECF No. 12-
1.). 	To the extent Plaintiff seeks to challenge the 2024 decision, Plaintiff has failed to
exhaust the available administrative remedy and, therefore, has failed to establish that
Defendant’s 2024 disability determination is a final decision for purposes of judicial
review. Because Plaintiff has not exhausted the available administrative process and thus
has not presented a final decision for review, dismissal is required.4 See Porter v. Social
Sec. Admin., No. 24-40061-MRG, 2024 WL 3744548, at *2 (D. Mass. Aug. 9, 2024)
(“When the complaint fails to allege that a plaintiff has received a final decision from the
Social Security Administration, dismissal is required.”).
B. 	Reopening of 2011 Application
Plaintiff argues that the 2023 and 2024 decisions were “de facto reopenings” of his
2011 claim. (Plaintiff’s Response at 4.) In support of this argument, Plaintiff cites Taylor
for Peck v. Heckler in which the court found there had been a de facto reopening when an
ALJ did not specifically decline to reopen the prior decision and conducted the only
evidentiary hearing in the case. 738 F.2d 1112, 1114–15 (10th Cir. 1984).
4 “[A] party’s failure to exhaust all of the steps in the administrative process may be waived by the agency
or excused by the courts.” Daniel R. L. v. Saul, No. 1:20-cv-00258-DBH, 2011 WL 2801954, at *3 (D.
Me. July 5, 2021). Courts may waive the exhaustion requirement if (i) the issue on appeal is collateral to
the substantive claim for benefits, (ii) the claimant would be irreparably harmed by requiring exhaustion,
and (iii) exhaustion would be futile. Bowen v. City of New York, 476 U.S. 467, 482–86 (1986); Justiano v.
Social Sec. Admin., 876 F.3d 14, 27 (1st Cir. 2017). Plaintiff has demonstrated grounds for a waiver.
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Unlike in Heckler, here the ALJ who authored the 2024 decision explicitly stated
that he was not reopening any prior applications. 	The ALJ stated that “[a]ny mention of
evidence prior to the alleged onset date serves as a longitudinal review of the record rather
than an implication that any prior applications have been reopened.” (Declaration of Ari
Levin at 46.)
A district court may only review Defendant’s discretionary decision not to reopen
an earlier adjudication if there is “a colorable constitutional claim.” 	Torres v. Sec’y of
Health & Human Servs., 845 F.2d 1136, 1138 (1st Cir. 1988); Califano v. Sanders, 430
U.S. 99, 108 (1977). Plaintiff has not alleged a constitutional claim. The Court, therefore,
lacks jurisdiction to review the ALJ’s decision to not reopen the 2011 application.
C. 	Reconsideration of 2014 Decision
Plaintiff’s request to revisit the 2014 decision is essentially a request for relief from
judgment pursuant to Federal Rule of Civil Procedure 60(b).5 As noted above, Plaintiff
appealed from the 2014 decision to the First Circuit and then to the Supreme Court. The
judgment, therefore, became final when the appeal process concluded in 2018.
Rule 60(b) authorizes the Court to relieve a party from a judgment on the grounds
of “(1) mistake, inadvertence, surprise, or excusable neglect, (2) newly discovered
evidence that, with reasonable diligence, could not have been discovered in time to move
for a new trial under Rule 59(b), (3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party, (4) the judgment is void, (5) the
5 To the extent Plaintiff seeks to challenge directly Defendant’s 2014 decision, the complaint would be
barred by res judicata principles and would likely be time-barred.
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judgment has been satisfied; it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable; or (6) any other reason that
justifies relief.” A party must file the motion within a reasonable time, and for grounds 1
through 3, the party must file the motion within one year of the judgment. Fed. R. Civ. P.
60(c)(1).
First, Plaintiff filed this action more than a year after judgment entered. In addition,
Plaintiff has not asserted any facts that could reasonably be construed as a mistake, newly
discovered evidence, or fraud as grounds for relief. In fact, the evidence Plaintiff cites in
support of his claim is evidence that Plaintiff contends was available to the ALJ.
Furthermore, Plaintiff’s mere assertion of fraud is insufficient to support a request for relief
from judgment. 	Plaintiff also has not argued that the judgment in favor of Defendant is
void, that the judgment has been satisfied, or that a related judgment has been reversed or
vacated. 	Finally, Plaintiff’s contentions do not constitute any “other reason that justifies
relief.”6 Plaintiff, therefore, has not asserted facts that would support relief from judgment
under Rule 60.
6 Examples of “other” reasons justifying relief under Rule 60(b)(6) include “settlement agreements when
one party fails to comply,” “fraud by the party’s own counsel, by a codefendant, or by a third-party witness,”
and, most commonly, failure of the losing party “to receive notice of the entry of judgment in time to file
an appeal.” 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure
Civ. § 2864 (3d ed. 2012).
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C ONCLUSION
Based on the foregoing analysis, I recommend the Court grant Defendant’s motion
to dismiss.
NOTICE
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered
pursuant to 28 U.S.C. § 636(b)(1)(B) for which de novo review by the district
court is sought, together with a supporting memorandum, within fourteen
(14) days of being served with a copy thereof. A responsive memorandum
shall be filed within fourteen (14) days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right
to de novo review by the district court and to appeal the district court’s order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 18th day of December, 2024.
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