Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Rosinko v. Astrue

February 11, 2009

STEVE M. ROSINKO, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Lisa Pupo Lenihan

Doc. No. 3

MEMORANDUM OPINION

Currently before the Court is Defendant's Motion to Dismiss Plaintiff's Complaint for lack of subject matter jurisdiction (Doc. No. 3). Plaintiff filed this action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. §405(g) after having been denied Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI") by Defendant.*fn1

Defendant seeks dismissal of the above-captioned case for lack of subject matter jurisdiction, arguing that there has been no "final decision after a hearing" pursuant to 42 U.S.C. § 405(g). Plaintiff claims the Administrative Law Judge ("ALJ") failed to adhere to 20 C.F.R. § 416.1438 (c), which requires that the ALJ attempt to contact Plaintiff after his failure to acknowledge receipt of notice of the scheduled hearing. For the reasons set forth below, the Court will deny Defendant's Motion to Dismiss and remand to the ALJ for an evidentiary hearing on the merits of Plaintiff's claim for benefits.

I. PROCEDURAL HISTORY

On May 18, 2005, Plaintiff, Steve M. Rosinko, filed a Title II application for a period of disability and DIB, and a Title XVI application for SSI. Both claims were initially denied on August 29, 2005. Thereafter, on September 7, 2005, Plaintiff timely filed his request for a hearing. Plaintiff was unrepresented at this time. (Order of Dismissal of R. Neely Owen, ALJ, October 15, 2007, Doc. No. 4-2 at 6.)

On August 31, 2007, a Notice of Hearing was mailed to Plaintiff at his last known address. The Notice of Hearing advised Plaintiff of the time and place of the hearing, and contained and a reminder that the failure to appear at the hearing without good cause could result in dismissal of Plaintiff's request for a hearing. The Notice of Hearing also asked the Plaintiff to return the enclosed Acknowledgment of Receipt (Notice of Hearing) form "to let the Hearing Office know that he had received the notice." (Order of Dismissal of R. Neely Owen, ALJ, October 15, 2007, Doc. No. 4-2 at 6.)

The Acknowledgment of Receipt (Notice of Hearing) form was never returned and Plaintiff did not appear at the hearing. (Order of Dismissal of R. Neely Owen, ALJ, October 15, 2007, Doc. No. 4-2 at 6.) Plaintiff asserts that he never received the Notice of Hearing form. (Plaintiff's Brief in Opposition to Defendant's Motion to Dismiss, Doc. No. 10 at 1; Rosinko Affidavit*fn2, Doc. No. 10-2 at ¶ 3.) Defendant sets forth no evidence to dispute this assertion. Plaintiff also asserts that no one from the Social Security Administration attempted to contact him after he failed to return the Acknowledgment of Receipt (of the Notice of Hearing) form. (Plaintiff's Brief in Opposition to Defendant's Motion to Dismiss, Doc. No. 10 at 2.) Defendant sets forth no evidence to dispute this assertion.

Instead, on October 15, 2007, the ALJ issued an Order of Dismissal dismissing Plaintiff's September 7, 2005 Request for Hearing, finding "no good cause for [Plaintiff's] failure to appear at the time and place of hearing." (Doc. No. 4-2 at 6-7.) Thereafter, on October 17, 2007, Plaintiff submitted a timely appeal to the Appeals Council, which was denied on February 7, 2008. (Declaration of Paul Halse, Social Security Administration, Doc. No. 4-2 at 3.)

Finally, Plaintiff filed the above-captioned Complaint on April 3, 2008. (Doc. No. 1.) Thereafter, Defendant filed this Motion to Dismiss. (Doc. No. 3.)

II. LEGAL STANDARD

There are two types of Rule 12(b)(1) motions to dismiss for lack of subject matter jurisdiction: those that attack the complaint on its face, and those that attack subject matter jurisdiction as a matter of fact. CNA v. United States, 535 F.3d 132, 139 (3d Cir. 2008). A facial attack involves "an alleged pleading deficiency." U.S. ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 514 (3d Cir. 2007). A factual attack involves "the actual failure of [ plaintiff's] claims to comport [factually] with the jurisdictional prerequisites." Id. The Court here characterizes the Defendant's motion as a factual attack because Defendant's motion to dismiss challenges whether the Court has subject matter jurisdiction based on the facts alleged.

In a factual attack, the Court must consider three procedural requirements. First, unlike a facial attack, the Court attaches no presumption of truthfulness to the allegations of the Complaint. Petruska v. Gannon University, 462 F.3d 294, 302 n.3 (3d Cir. 2006). Next, the Court must place the burden of proving subject matter jurisdiction on the Plaintiff. Id. Finally, the Court may make factual findings decisive to the issue. That is, the Court may review evidence outside the pleadings and may weigh the evidence in an effort to satisfy itself as to the existence of its power to hear the case. Disputed material facts will not preclude the court from determining whether jurisdiction exists. Id.

Defendant argues that this Court lacks subject matter jurisdiction to hear this case. Specifically, Defendant argues that judicial review in Social Security cases is governed by Section 205(g) of the Social ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.