United States District Court, S.D. West Virginia, Huntington Division
BARRY J. DILLON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, CHIEF JUDGE
before the Court is Defendant's Partial Motion to Dismiss
(ECF No. 5) for failure to state a claim under Federal Rule
12(b)(6). The matter has been fully briefed, and the
issue is now ripe for review. For the following reasons, the
Court GRANTS Defendant's Partial Motion
to Dismiss (ECF No. 5).
brought this suit to challenge the Social Security
Administration's (SSA) redetermination process that
resulted in an Administrative Law Judge (ALJ) terminating
Plaintiff's disability benefits. The Office of the Inspector
General (OIG) investigated Attorney Eric C. Conn for
fraudulent activity in over one thousand social security
cases. Def.'s Br. in Supp., ECF No. 6, at 5. The
OIG reported that it had reason to believe that Conn and his
law firm submitted pre-completed template medical forms from
Bradley Adkins, Ph.D., Srinivas Ammisetty, M.D., Frederic
Huffnagle, M.D., and David P. Herr, D.O. to ALJ David
Daugherty for approval. Id. at 5-6. Upon receiving
the OIG referral, the Social Security Act (the Act) mandates
the SSA to redetermine the cases suspected of containing
fraud or similar fault. Id. The SSA must disregard
any evidence from the allegedly fraudulent sources when
conducting the redetermination. Id.
hired Conn to represent Plaintiff when he applied for
disability benefits. Id. Plaintiff allegedly suffers
from diverticulitis, high blood pressure, ulcerative colitis,
permanent colostomy, arthritis, hearing loss, and headaches.
Id. at ¶ 6. In March of 2009, ALJ Daugherty
issued Plaintiff a favorable decision on his disability
application. Id. at ¶ 16. In June of 2015,
however, Plaintiff received a letter from the SSA suspending
his benefits because “there was reason to believe fraud
was involved in certain cases including evidence from M.D.,
Frederic Huffnagle.” Id. at ¶ 17.
Following the statutory mandate, the SSA excluded
Huffnagle's reports from Plaintiff's file upon
review. Def.'s Br. in Supp., ECF No. 6, at 6.
Plaintiff appeared for a video hearing on redetermination in
front of a new ALJ in December of 2015. Id.
Subsequently, Plaintiff received a Notice of Appeals Council
Action that confirmed the ALJ's decision that
Plaintiff's file contained insufficient evidence to
support disability. Pl.'s Compl., ECF No. 1, at
¶ 18. The SSA terminated Plaintiff's benefits, which
prompted this litigation.
filed suit on May 11, 2016 in federal court to seek a
declaratory judgment that Defendant violated the Act, the Due
Process Clause of the Constitution, the Equal Protection
Clause of the Constitution, and the Administrative Procedures
Act (APA). Id. at ¶ 28. Alleging violations of
the Act, Plaintiff asserts that Defendant failed to
immediately redetermine benefits as required and failed to
provide Plaintiff an opportunity to rebut the fraudulent
determination of Huffnagle's medical evidence.
Id. at ¶¶ 32-33. Plaintiff alleges that
Defendant violated due process by relying on confidential
decisions of fraudulent activity to justify conducting mass
hearings for redetermination. Id. at ¶ 42. The
Equal Protection Clause argument states that Defendant failed
to allege wrongdoing against the Plaintiff and thus cannot
take away Plaintiff's social security disability
benefits. Id. at ¶¶ 45-46. The arguments
for violations of the APA are contained within the due
process section, alleging that Defendant did not follow the
requisite procedures contained therein. Id. at
¶ 42. Defendant filed a motion to dismiss the
constitutional and statutory arguments for failure to state a
claim. Defendant interpreted the complaint's prayer for
relief to include a substantive cause of action challenging
the Commissioner's final decision, which Defendant does
not include in the motion to dismiss. Def.'s Partial
Mot. to Dismiss, ECF No. 6, at 4 n.3.
Rule 8(a) requires a complaint to include “a short and
plain statement of the claim … showing entitle[ment]
to relief.” Fed.R.Civ.P. 8(a)(2). To overcome a motion
to dismiss under Federal Rule 12(b)(6), a complaint must also
be plausible. Bell Atl. Corp. v. Twombly, 550 U.S.
544, 546 (2007). This standard requires a plaintiff to set
forth the “grounds” for an “entitle[ment]
to relief” that is more than mere “labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Id. at 555
(internal quotations and citations omitted). A complaint must
contain “sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotations and citation omitted). Facial
plausibility exists when a claim contains “factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Id. (citation omitted).
the factual allegations in the complaint as true (even when
doubtful), the allegations “must be enough to raise a
right to relief above the speculative level ….”
Twombly, 550 U.S. at 555 (citations omitted). If the
allegations in the complaint, assuming their truth, do
“not raise a claim of entitlement to relief, this basic
deficiency should … be exposed at the point of minimum
expenditure of time and money by the parties and the
court.” Id. at 558 (internal quotations and
citations omitted). Finally, “[a]lthough for the
purposes of a motion to dismiss we must take all of the
factual allegations in the complaint as true, we are not
bound to accept as true a legal conclusion couched as a
factual allegation.” Iqbal, 556 U.S. at 678
(internal quotations and citation omitted).
Court recently issued a Memorandum Opinion and Order in a
similar case addressing the constitutionality and legality of
the redetermination process. See Robertson v.
Berryhill, Civ. No. 3:16-3846, ECF No. 40 (S.D. W.Va.).
Rather than repeat the full analysis here, the Court directs
the parties to the opinion granting the Commissioner's
motion to dismiss in that case. As this case asserts many of the
same legal issues as discussed in Robertson, the
Court adopts and incorporates the analysis of the
Robertson Order here. Plaintiff additionally alleges
that a declaratory judgment should be issued for legal
reasons not raised in Robertson, including due
process failures for not providing particularized or
sufficient notice and causing a representational crisis,
equal protection concerns, and APA allegations construed to
allege failures in notice and comment rulemaking. The Court
will address each of these additional arguments in turn.
Due Process Allegations
Plaintiff's due process allegations address the SSA's
alleged failure to provide particularized notice to Plaintiff
with an individual explanation as to why redetermination was
necessary. Pl.'s Compl., ECF No. 1, at ¶
40. Defendant challenges this allegation because the SSA
provided Plaintiff with notices to inform him of the
redetermination process, the OIG's finding that there was
reason to believe fraud was involved in acquiring
Plaintiff's benefits, and the subsequent events to follow
in redetermining his benefits. Def.'s Br. in
Supp., ECF No. 6, at 12; see also Pl.'s
Compl., ECF No. 1, at ¶¶ 6 (appearing at
redetermination hearing), 17 (notice of reason to believe
fraud was involved with Huffnagle's reports), and 18
(denial of benefits without evidence from Huffnagle).
Plaintiff failed to respond to Defendant's arguments in
his Response. See Hayes v. D.C., 923 F.Supp.2d 44,
49 (D.D.C. 2013) (finding that a court can consider an
argument conceded if not addressed in dispositive motion
Court finds that Defendant's notice to Plaintiff
satisfied the requirements of the Act and afforded Plaintiff
due process. Although the letters sent to affected claimants
are identical, each letter includes the necessary
information: reason for redetermination, doctors involved in
the fraudulent scheme, statutory mandate for redetermination
process, and steps involved in the redetermination process.
See Notice of Appeals Council Action, ECF No.
The letters follow the notice requirements stated in 42
U.S.C. § 405(s), and the Court is not aware of other