PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

TODD ROY GIBBONS,

Plaintiff,

v.

CAROLYN W. COLVIN, 

Commissioner of Social Security,

Defendant.

Case No. 2:14-cv-00709-SI

OPINION AND ORDER

Todd Roy Gibbons, P.O. Box 141, Ontario, OR 97914. Plaintiff pro se.

S. Amanda Marshall, United States Attorney, and Ronald K. Silver, Assistant United States 

Attorney, United States Attorney’s Office, District of Oregon, 1000 S.W. Third Avenue, Suite 

600, Portland, OR 97201; John C. Lamont, Special Assistant United States Attorney, Office of 

the General Counsel, Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, 

Seattle, WA 98104. Of Attorneys for Defendant.

Michael H. Simon, District Judge.

Todd Roy Gibbons brings a number of claims against the Commissioner of the Social 

Security Administration (“Commissioner”). The Commissioner moves to dismiss Gibbons’s 

amended complaint for failure to state a claim and for lack of subject matter jurisdiction. For the 

reasons below, the Commissioner’s motion is granted.

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STANDARDS

A. Failure to State a Claim

A complaint may be dismissed for failure to state a claim when it contains is no 

cognizable legal theory or insufficient factual allegations to support a claim for relief. Shroyer v. 

New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the 

sufficiency of a complaint’s factual allegations, the court must accept as true all well-pleaded 

material facts alleged in the complaint and draw all reasonable inferences in favor of the 

plaintiff. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. 

Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). But to be entitled to a presumption of truth, 

the complaint must do more than simply allege legal conclusions couched as factual allegations.

Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). The plaintiff “may not simply recite the elements 

of a cause of action, but must [provide] sufficient allegations of underlying facts to give fair 

notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 

1202, 1216 (9th Cir. 2011). Furthermore, the underlying factual allegations must “plausibly

suggest an entitlement to relief.” Baca, 652 F.3d at 1216 (emphasis added). “A claim has facial 

plausibility when the pleaded factual content allows the court to draw the reasonable inference 

that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 663 (citing Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

B. Lack of Subject Matter Jurisdiction

“Federal courts are courts of limited jurisdiction” and there is a presumption “that a cause 

[of action] lies outside this limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 

U.S. 375, 377 (1994). In a social security case, subject-matter jurisdiction is governed by 42 

U.S.C. § 405(g), which limits judicial review to a “final decision of the Secretary made after a 

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hearing.” § 405(g); see Califano v. Sanders, 430 U.S. 99, 108 (1977); Hoye v. Sullivan, 985 F.2d 

990, 991 (9th Cir. 1993). 

C. Pro Se Plaintiffs

Pro se plaintiffs do receive some special dispensation. A court must liberally construe the 

filings of a pro se plaintiff and afford the plaintiff the benefit of any reasonable doubt. Hebbe v. 

Pliler, 627 F.3d 338, 342 (9th Cir. 2010). “A pro se litigant must be given leave to amend his or 

her complaint unless it is absolutely clear that the deficiencies of the complaint could not be 

cured by amendment.” Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 

1988) (citation and internal quotation marks omitted). But even a pro se plaintiff must offer more 

than “‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’” 

Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

BACKGROUND

Todd Roy Gibbons was last insured for purposes of social security disability insurance 

benefits on December 31, 2008. In January 2009, with the assistance of counsel, Gibbons filed 

concurrent Title II and Title XVI applications for disability benefits. In December 2010, an ALJ 

issued a final decision finding Gibbons not disabled through the date of the decision. The 

Appeals Council declined to review his case on February 2, 2012, starting the 60-day period to 

file for judicial review in federal court. See 42 U.S.C. § 405(g). Gibbons never sought review of 

that decision.

In May 2013, no longer represented by counsel, Gibbons again filed concurrent Title II 

and Title XVI applications for disability benefits. This time, he alleged that he became disabled 

on January 2, 2009—after his date last insured. Accordingly, his Title II claim was immediately 

denied. But because eligibility for Title XVI benefits does not require insured status, his Title 

XVI claim remained pending. 42 U.S.C. § 1381a. 

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In June 2013, Gibbons requested a hearing before an ALJ. The reason for his request was 

unclear, but the ALJ discerned two possible interpretations. If it were interpreted as a challenge 

to the denial of his 2013 Title II claim, the ALJ reasoned that Gibbons plainly did not have 

insurance for that claim and that it was in any case barred by res judicata. As a request to reopen 

the administratively final 2010 decision, the ALJ determined that Gibbons did not meet the 

conditions for reopening. Accordingly, the ALJ dismissed the request. On February 11, 2014, the 

Appeals Council declined to review the ALJ’s dismissal. On March 5, 2014, Gibbons’s Title 

XVI claim was granted and Gibbons began receiving supplemental security income benefits. 

On April 28, 2014, Gibbons filed a complaint in this Court, seeking review of the ALJ’s 

dismissal and asserting a number of other claims. Gibbons’s complaint was dismissed for failure 

to exhaust administrative remedies and lack of subject-matter jurisdiction. On May 29, Gibbons 

filed an amended complaint, which is the subject of this motion to dismiss.

DISCUSSION

The Commissioner argues, first, that Gibbons failed to state a claim because he did not 

allege that he is seeking review of a final decision of the Commissioner of Social Security. 

Gibbons did, however, allege that he “has requested numerous in person hearing[s] [and] has 

been denied,” and that he “appl[i]ed for [disability benefits] and was denied.” Dkt. 7 at 2. 

Construing his amended complaint liberally, as this Court is required to do, Gibbons has 

adequately alleged that he seeks review of the ALJ’s 2013 decision.

Next, the Commissioner argues that the Court lacks subject-matter jurisdiction over 

Gibbons’s claim. The Social Security Act does not supply the federal district courts with 

jurisdiction to review decisions of the Commissioner that are not “final.” 42 U.S.C. § 405(g). 

Decisions that are “purely discretionary” are “not ‘final’ decisions within the meaning of 

§ 405(g).” Taylor v. Heckler, 765 F.2d 872, 877 (9th Cir. 1985). A decision not to reopen a prior 

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final decision is one such purely discretionary decision that is not reviewable in this Court. See 

id. Thus, the Court lacks subject-matter jurisdiction to review the Commissioner’s decision not 

to reopen the 2010 decision.

On the other hand, the principles of res judicata are far from an unlimited grant of 

discretion to the Commissioner. See Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988) 

(outlining the rules for res judicata in social security cases). And the Commissioner has cited no 

other authority for the proposition that a decision on res judicata grounds is not “final” in the 

sense of § 405(g). Indeed, federal courts frequently review decisions of the Commissioner that a 

prior determination of non-disability is res judicata over a new claim. See, e.g., Gregory v. 

Bowen, 844 F.2d 664, 666 (9th Cir. 1988); Chavez, 844 F.2d at 693-94; Taylor, 765 F.2d at 876-

77.

But the Court need not review the Commissioner’s application of res judicata here, 

because the Commissioner’s first reason for dismissing Gibbons’s 2013 Title II claim is 

sufficient to dispose of this case. Gibbons was last insured on December 31, 2008. His 2013 

application alleges that he became disabled after that date—on January 2, 2009. His Title XVI 

claim was granted on the basis of this disability. But a Title II claim requires that the claimant, in 

addition to being disabled, have disability insurance on the date of the alleged onset of disability. 

See 20 C.F.R. § 404.101. Because Gibbons did not have disability insurance on January 2, 2009, 

his Title II claim was properly dismissed.

In addition to seeking review of the Commissioner’s decision, Gibbons’s amended 

complaint alleges “[other] violations of the Administrative Procedure Act” and “judicial 

misconduct,” but without sufficient underlying factual allegations to state a claim for relief. Cf.

Iqbal, 556 U.S. at 678-79. Because it is not “absolutely clear” that this deficiency cannot be 

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cured by amendment, the Court dismisses this claim without prejudice. Cf. Karim-Panahi, 839 

F.2d at 623.

Gibbons also alleges that he has not received his Title XVI benefits for May 2014, but 

even construing his pleadings liberally, he does not allege that he has exhausted his 

administrative remedies or that there is a final decision of the Commissioner for this Court to 

review. Accordingly, the Court does not have subject-matter jurisdiction over this claim. Cf. 42 

U.S.C. § 405(g). The Court dismisses this claim without prejudice as well, but to cure it by 

amendment, Gibbons will need to pursue remedies through the administrative process until he 

receives a final decision from the Commissioner.

CONCLUSION

The Commissioner’s motion to dismiss (Dkt. 30) is GRANTED. Gibbons’s amended 

complaint (Dkt. 7) is DISMISSED WITH PREJUDICE as concerns the Commissioner’s 2013 

decision. Gibbons’s amended complaint is DISMISSED WITHOUT PREJUDICE as concerns 

his other claims. Gibbons’s motion to submit sealed medical and health information (Dkt. 31), 

motion to order Defendant to submit all administrative records (Dkt. 32), motion to supplement 

request for admissions (Dkt. 36), motion for protection (Dkt. 39), motion for order (Dkt. 40), and 

motion to order both parties to oral argument (Dkt. 41) are DISMISSED as moot. The 

Commissioner’s motion for a protective order (Dkt. 38) is also DISMISSED as moot.

IT IS SO ORDERED.

DATED this 2d day of March, 2015.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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