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Social Security: Bessette v. Commissioner of Social Security

By: Daily Record Staff//February 3, 2011

Social Security: Bessette v. Commissioner of Social Security

By: Daily Record Staff//February 3, 2011//

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U.S. District Court, Northern District of New York

Social Security

Disability — Administrative Review — Subject Matter Jurisdiction

Bessette v. Commissioner of Social Security
Judge McAvoy

Background: Plaintiff pro se Gary Bessette brings this action seeking review of a decision by the commissioner of Social Security denying his request for disability insurance benefits under the Social Security Act. The commissioner moves for dismissal for lack of subject matter jurisdiction. On Dec. 3, 1996, Bessette filed his first application for disability benefits “alleging disability since Nov. 18, 1996 because of musculoskeletal, respiratory and mental impairments.” This application was denied. The ALJ found that the plaintiff suffered from a history of alcohol abuse, musculoskeletal issues, and respiratory ailments but that he could still perform light-duty work. Additionally, ALJ Stephan concluded that Bessette’s respiratory difficulties were minimal and that Bessette could continue to work so long as the environment did not expose him to respiratory irritants. The plaintiff filed multiple subsequent applications for benefits although he didn’t necessarily appeal the denials. Following an appeals council denial, this action was commenced for judicial review of the most recent administrative appeal denial in 2002.

Ruling:  A waiver of subject matter jurisdiction is limited to agency action which is a “final decision of the commissioner . . . made after a hearing  . . .” 42 U.S.C. §405(g). To satisfy the administrative review process, making judicial review possible, a claimant must follow the process outlined in 20 C.F.R. §404.900(a). 
In this case, Bessette received his first application denial on April 23, 1999. As the court explains: “[T]he appeals council denied Bessette’s request for review.  Bessette received notification that he had sixty days to petition the court for judicial review, but he failed to do so.  Accordingly, the decision became final. Rather than file a complaint with the courts, five and eight months later Bessette filed additional disability applications. The applications, and requests for rehearings, were denied because they were duplicative of Bessette’s application which had previously been determined and for which no additional or new evidence had been submitted. Ultimately these denials were upheld by the appeals council on October 11, 2002. Therefore, the second decision also became the final decision of the Commissioner Bessette did not file a federal complaint until June 2009, more than nine years after the first administrative decision became final and almost seven years after the second decision had become final.” Judicial review is therefore time-barred and the court dismisses the lawsuit.

Gary J. Bessette, plaintiff pro se, and Susan J. Reiss, of the Social Security Administration, for the defendant

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