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Ducusin v. Commissioner of Social Security

September 5, 2009

ALEJANDRA D. DUCUSIN, PLAINTIFF
v.
COMMISSIONER OF SOCIAL SECURITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Henry H. Kennedy, Jr. United States District Judge

MEMORANDUM OPINION

This matter is before the Court on the defendant's motion to dismiss, which the Court treats as one for summary judgment.*fn1 For the reasons discussed below, the Court will grant the motion.

I. BACKGROUND

The plaintiff "applied for Widow's Insurance Benefits and a Lump Sum Death Payment on October 22, 2002[,] stating that she was the widow of Alberto Aquino Ducusin, the deceased wage earner."*fn2 Mem. in Support of the Commissioner's Mot. to Dismiss ("SSA Mot."), Declaration of Earnest Baskerville ("Baskerville Decl."), Ex. 1 ("July 21, 2004 Decision") at 1. The Social Security Administration ("SSA") denied the application initially and on reconsideration on the ground that the plaintiff's marriage to Mr. Ducusin was invalid. Id., Ex. 1 at 1. The plaintiff requested a hearing, at which an Administrative Law Judge ("ALJ") considered two questions:

1. Whether the plaintiff is entitled to Widow's Insurance Benefits and a Lump Sum Death Payment on the record of Mr. Ducusin; and

2. Whether the plaintiff and Mr. Ducusin had a valid marriage.

See id. Evidence in the record before the ALJ showed that the plaintiff and Mr. Ducusin "were married on September 19, 1963 in San Fernando, La Union, Philippines" and that "the [plaintiff's] mother is the sister of [Mr. Ducusin]." Id. at 1-2. The plaintiff had married her uncle, and under Philippine law, "marriage within the fourth civil degree of consaguinity is incestuous and absolutely void." Id. at 2. The ALJ determined that the plaintiff's marriage to Mr. Ducusin was void. Id. He concluded that the plaintiff was not Mr. Ducusin's widow, and, therefore, that she was not eligible for widow's insurance benefits and a lump sum death payment based on Mr. Ducusin's Social Security record. Id.

The plaintiff requested a review of the ALJ's decision by the Appeals Council.*fn3 SSA Mot., Baskerville Decl. ¶ (3)(a). Under its rules, review is warranted if: (1) the ALJ appears to have abused his discretion; (2) there is an error of law; (3) the decision is not supported by substantial evidence; (4) there is a broad policy or procedural issue that may affect the public interest; or (5) the Appeals Council receives new and material evidence and the decision is contrary to the weight of all the evidence now in the record. Id., Ex. 2 (August 23, 2005 Notice of Appeals Council Action) at 1; see 20 C.F.R. § 404.970. "The Appeals Council denied the plaintiff's request for review of the [ALJ's] decision on August 23, 2005 and informed the plaintiff that [she] had the right to commence a civil action within sixty (60) days from the date of receiving the notice." SSA Mot., Baskerville Decl. ¶ (3)(b); see id., Ex. 2 at 2.

The plaintiff subsequently submitted a request to the Appeals Council to reopen the July 21, 2004 Decision, and the Appeals Council denied this request on June 23, 2006. SSA Mot., Baskerville Decl. ¶¶ (3)(b), (3)(c); see id., Ex. 3 (June 23, 2006 letter from P.D. Crawford, Administrative Appeals Judge) at 1. The Appeals Council "found no reason under [its] rules to reopen or change the decision," meaning that the ALJ's July 21, 2004 Decision "is the final decision of the [SSA] in [her] case." Id., Ex. 3 at 1. In addition, the Appeals Council "extend[ed] the time within which [the plaintiff] may file a civil action (ask for court review) of the final decision in [her] case for 30 days from the date [she] receive[d] this letter." Id. at 2. It was "assume[d] that [the plaintiff] receive[d] this letter 5 days after the date on it unless [she] show[ed] that [she] did not receive it within the 5-day period." Id.

In a letter dated November 2, 2006, the plaintiff made another request to reopen and revise the July 21, 2004 Decision. See SSA Mot., Baskerville Decl. ¶ (3)(d); see id., Ex. 4 (December 20, 2006 letter from P.D. Crawford, Administrative Appeals Judge) at 1. She informed the Appeals Council that she "did not receive any correspondence from the [Appeals] Council after January 6, 2006." Id., Ex. 4 at 1. On December 20, 2006, the Appeals Council denied the plaintiff's request. Id. Again, the Appeals Council informed the plaintiff that it found "no basis under [its] rules to reopen and change the decision," rendering the ALJ's decision "the final decision of the [SSA] in [her] case." Id. Further, it found unpersuasive the plaintiff's contention that she had not received correspondence from the SSA. Id. It remarked that "[t]he notice of June 23, 2006 has not been returned to the Council as undeliverable and there is no indication that, in the past, there has been a problem with [the plaintiff's] receipt of mail from the [SSA]." Id.

II. DISCUSSION

In this action, the plaintiff seeks review of the unfavorable July 21, 2004 Decision. See Compl. at 1, 3. The SSA moves to dismiss the complaint under Fed. R. Civ. P. 12(b)(6) on the ground that the complaint fails to state a claim upon which relief can be granted, see generally SSA Mot., and as previously stated, the Court treats the motion as one for summary judgment under Fed. R. Civ. P. 12(d). Specifically, the SSA argues that the plaintiff did not file her complaint timely. See id. at 2-6.

In relevant part, the Social Security Act provides that:

Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision ...


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