                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

VIRGIE C. GUMPAD,               )
                                )
          Plaintiff,            )
                                )
     v.                         )                    Civil Action No. 13-0749 (BAH)
                                )
COMMISSIONER OF SOCIAL SECURITY )
ADMINISTRATION,                 )
                                )
          Defendant.            )


                                  MEMORANDUM OPINION

       Pro se Plaintiffs Virgie C. Gumpad and Jovita C. Sansano have brought this action under

the Social Security Act, 42 U.S.C. § 405(g). In a one-page handwritten Complaint (“Compl.”),

Plaintiffs purport to be “substitute representatives” of deceased relatives Melchor and Ignacia

Cupatan, who were denied Parent’s Insurance Benefits. Plaintiffs assert seemingly inconsistent

claims that (1) “the SSA Appeals Council refused and still refuses to review the unfavorable ALJ

decision dated February 11, 2010,” and (2) the Cupatans “were deprived [of] due process”

because the Appeals Council’s review allegedly occurred after their deaths. Compl.

       Defendant Acting Social Security Commissioner Carolyn W. Colvin has moved for a

judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, on

grounds that the Plaintiffs lack standing to pursue this action and, even if they had standing,

they would be bound by the administrative decision and, in any event, ineligible to receive the

Cupatans’ benefits. Def.’s Mot. for Judgment of Dismissal and Supporting Mem. of P. & A.

(“Def.’s Mot.”), at 4, ECF No. 10. Plaintiffs have opposed the motion and have also

supplemented the Complaint. See Pls.’ Opp’n to Def.’s Mot. for Summ. Dismissal, ECF No. 12;

                                                1
Pls.’ Supplements to the Complaint, ECF No. 14; Pls.’ Supplemental Manifestations, ECF No. 13

(Sealed). Upon consideration of the parties’ submissions and the entire record, the Defendant’s

motion is granted and this case is dismissed.

I. BACKGROUND

        Plaintiffs’ claims are based on the following events. In May 2004, the Cupatans each

applied for Parent’s Insurance Benefits as the parents of Fely G. Cupatan, who died in June

1992. Decl. of Patrick J. Herbst, ECF No. 10-1, ¶ 3, Exs. 1A, 1B. The Cupatans claimed that at

least one-half of their support came from Fely and that they therefore were entitled to parent’s

benefits under 42 U.S.C. § 402(h)(1). 1 On February 11, 2010, an Administrative Law Judge

(“ALJ”) denied both Cupatans’ applications, finding that each claimant “ha[d] not provided

adequate proof of at least one-half support.” Herbst Decl., Ex. 3A (In re: Melchor Cupatan,

Decision at 2); Ex. 3B (In re: Ignacia Cupatan, Decision at 2).2 Ignacia Cupatan died in February


1
    The statute provides in relevant part:

        Every parent (as defined in this subsection) of an individual who died a fully
        insured individual, if such parent--
        (A) has attained age 62,
        (B)(i) was receiving at least one-half of his support from such individual at the
        time of such individual's death . . . and (ii) filed proof of such support within two
        years after the date of such death . . .,
        (C) has not married since such individual's death . . .,
        (D) is not entitled to old-age insurance benefits . . ., and
        (E) has filed application for parent's insurance benefits,
        shall be entitled to a parent's insurance benefit for each month beginning with
        the first month after August 1950 in which such parent becomes so entitled to
        such parent's insurance benefits . . . .

42 U.S.C. § 402(h)(1).
2
    The record before the ALJ indicates that the Cupatans admitted that they had not filed proof
of the requisite one-half support with the SSA. Herbst Decl., Exhs. 1A and 1B to Exh. A, ECF No.
                                                 2
2009, one year before the issuance of the ALJ decision, Herbst Decl., Ex. 2, and Melchor

Cupatan died in April 2012, two years after the issuance of the ALJ decision. See Compl. at 1.

       Prior to Melchor Cupatan’s death, the Appeals Council, in January 2012, denied his

request “on behalf of self and Ignacia Cupatan” for review of the ALJ’s decision, which became

“the final decision of the Commissioner of Social Security.” Herbst Decl., Ex. 4 (Jan. 23, 2012

Not. of Appeals Council Action). The Notice set forth the reasons for the denial of review and

provided detailed information about filing a civil action within 60 days from receipt of the

Notice and seeking an extension of time to file the action. See id. at 3-4.

       On May 23, 2013, Plaintiffs filed their complaint, to which the Defendant filed an

Answer, ECF No. 9, and the instant motion for judgment on the pleadings.

II. LEGAL STANDARD

       The Social Security Act confers jurisdiction upon this Court to review a “final decision of

the Secretary made after a hearing to which [the plaintiff] was a party.” 42 U.S.C. § 405(g). As

the D.C. Circuit has explained, the " ‘Commissioner's ultimate determination will not be

disturbed if it is based on substantial evidence in the record and correctly applies the relevant

legal standards.’ " Jones v. Astrue, 647 F.3d 350, 355 (D.C. Cir. 2011) (quoting Butler v.

Barnhart, 353 F.3d 992, 999 (D.C. Cir. 2004)). Although Plaintiffs did not themselves apply for

benefits, they claim that they are proceeding as the “substitute representatives” of the

deceased subjects of a final decision. In the absence of any objection to Plaintiffs’ alleged

representational status, the Court is satisfied that it has subject matter jurisdiction and accepts




10-1 (indicating that in response to question 3(b), which asks “Have you filed proof of this
support with the [SSA]?,” the Cupatans checked the block for “No.”).
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that “this case is appropriately resolved by a motion for judgment on the pleadings” under

Federal Rule of Civil Procedure 12(c). Def.’s Mot. at 3.

       Federal Rule 12(c) authorizes a party to move for judgment “[a]fter the pleadings are

closed—but early enough not to delay trial.” A motion for judgment on the pleadings is

resolved essentially in the same manner as a motion to dismiss under Rule 12(b)(6) for failure

to state a claim upon which relief can be granted. Rollins v. Wackenhut Services, 802 F. Supp.

2d 111, 116-17 (D.D.C. 2011) (citing cases), aff’d, 703 F.3d 122 (D.C. Cir. 2012). In deciding a

motion brought under either Rule 12(b)(6) or Rule 12(c), a court may not consider matters

“outside the pleadings” without converting the motion to one for summary judgment. Fed. R.

Civ. P. 12(d). Nevertheless, without triggering the conversion rule, a court may consider, “the

facts alleged in the complaint, documents attached as exhibits or incorporated by reference in

the complaint . . . or [as here] documents upon which the plaintiff's complaint necessarily relies

even if the document is produced not by the plaintiff in the complaint but by the defendant in a

motion to dismiss.” Hinton v. Corrections Corp. of America, 624 F. Supp. 2d 45, 46 (D.D. C.

2009) (citations and internal quotation marks omitted); accord EEOC v. St. Francis Xavier

Parochial School, 117 F.3d 621, 624 (D.C. Cir. 1997). In addition, a court may consider, without

triggering the conversion rule, “matters of which . . . judicial notice” may be taken, EEOC, 117

F.3d at 624, such as an agency decision contained in the administrative record. See District

Hosp. Partners, L.P. v. Sebelius, No. 11-0116, --- F. Supp. 2d ---, 2013 WL 5273929, at *12 n.14

(D.D.C. Sept. 19, 2013); Howard v. Gutierrez, 474 F. Supp. 2d 41, 48 (D.D.C. 2007), quoting

Opoka v. INS, 94 F.3d 392, 394 (7th Cir.1996) (“Indeed, it is a well-settled principle that the




                                                 4
decision of another court or agency, including the decision of an administrative law judge, is a

proper subject of judicial notice.”).

        “Because a Rule 12(c) motion would summarily extinguish litigation at the threshold and

foreclose the opportunity for discovery and factual presentation, the Court must treat

Defendants’ motion with the greatest of care and deny it if there are allegations in the

complaint which, if proved, would provide a basis for recovery.” Rollins, 802 F. Supp. 2d at 117

(quoting Baumann v. District of Columbia, 744 F. Supp. 2d 216, 221 (D.D.C. 2010)). To survive

the instant motion, Plaintiffs need only plead “enough facts to state a claim to relief that is

plausible on its face” and to “nudge [their] claim[ ] across the line from conceivable to

plausible.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

III. DISCUSSION

        In reliance on Plaintiffs’ identification of themselves in the Complaint as “the legitimate

siblings” of the Cupatans, Defendant argued that Plaintiffs lack standing to pursue a claim for

underpayment of benefits under 20 C.F.R. § 404.503. 3 See Def.’s Mot. at 3-4 (“qualified

individuals for underpayment purposes are . . . surviving spouse, children, parents, and/or legal


3
    The regulation provides in relevant part:

        If an individual who has been underpaid dies before receiving payment or
        negotiating a check or checks representing such payment, we first apply any
        amounts due the deceased individual against any overpayments as defined in §
        404.501(a) owed by the deceased individual . . . . We then will distribute any
        remaining underpayment to the living person (or persons) in the highest order of
        priority as follows:
        (1) The deceased individual's surviving spouse . . . .
        (3) The parent or parents of the deceased individual, entitled to a monthly
        benefit on the basis of the same earnings record as was the deceased individual
        for the month in which such individual died (if more than one such parent, in
        equal shares to each such parent) . . . .
                                                 5
representative . . . of the estate”). In their opposition, however, Plaintiffs clarified their

relationship, referring to the Cupatans as their parents and to Fely as their sister. Pls.’ Opp’n at

1. Since Defendant had not refuted this asserted fact in a reply, the Court ordered Defendant

to supplement the record by (1) addressing whether its asserted basis for dismissal changes in

light of Plaintiffs’ claim that they are the Cupatans’ surviving children and (2) explaining the

application of the underpayment regulation (§ 404.503) to the ALJ’s denial of Parent’s

Insurance Benefits. Feb. 6, 2014 Order, ECF No. 15.

       In its supplemental brief, Defendant argues that “[t]he fact that plaintiffs now

characterize themselves as the children of the Cupatans has . . . no effect whatsoever on the

decision by [the ALJ] denying parent’s insurance benefits to the Cupatans.” Supplement to the

Mot. for Judg. of Dismissal, ECF No. 6, at 2. Defendant reasons that “[t]he [ALJ’s] denial was

based on a failure by the Cupatans to provide sufficient evidence to show that they were

entitled to such benefits.” Id. As to the second aspect of the February 6 Order, defendant only

reiterates that “under § 404.503 children do have standing to act as the substituted plaintiffs

for their deceased parents.” Id. (referring to opening brief). Defendant appears to suggest that

this regulatory provision governs since Plaintiffs claim that the Cupatans’ application for

parental benefits was not resolved by SSA, and the Cupatans consequently were not paid the

benefits to which they were entitled as parents of Fely.

       Regardless, the gravamen of Plaintiffs’ complaint is that “because of the inaction of the

SSA by not reviewing said ALJ decision until Ignacia died . . . and Melchor died . . ., they died

       (7) The legal representative of the estate of the deceased individual . . . .

20 C.F.R. § 404.503.


                                                   6
without having been afforded their fundamental rights or a day in court.” Compl. (emphasis in

original). This claim is not cognizable and without merit for at least three reasons. First, to the

extent that Plaintiffs assert a due process violation, the claim is foreclosed by the

“comprehensive remedial scheme of the Social Security Act.” Lazaridis v. Social Sec. Admin.,

856 F. Supp. 2d 93, 99 (D.D.C. 2012) (citing Schweiker v. Chilicky, 487 U.S. 412, 424-29 (1988));

see also Friedman v. Sebelius, 686 F.3d 813, 826 (2012) (reiterating that “Section 405(h) [of 42

U.S.C.] . . . makes [42 U.S.C.] § 405(g) the exclusive avenue for judicial review of [SSA]

decisions”) (quoting Nat’l Kidney Patients Assoc. v. Sullivan, 958 F.2d 1127, 1130 (D.C. Cir.

1992)) (alterations in original).

        Second, contrary to what Plaintiffs have alleged, the record shows that the Appeals

Council, in fact, reviewed the ALJ’s decision prior to Melchor Cupatan’s death and found no

reason to disturb it. See Def.’s Ex. 4. Moreover, Defendant reasonably contends that Plaintiffs

are bound by the ALJ’s decision denying the Cupatans’ applications for Parent’s Insurance

Benefits. Def.’s Mot. at 4. Specifically, the Cupatans submitted no evidence proving, as

required, that Fely had provided at least one-half support to the Cupatans during the 12-month

period immediately preceding her 1992 death, nearly 12 years before the Cupatans’ application

for benefits.

        Third, even if Plaintiffs have an independent right to judicial review of the ALJ’s decision,

their complaint is untimely. This is so because, as the Council’s Notice expressly advised, the

Social Security Act requires a civil action to be brought “within sixty days after the mailing . . . of

notice of [the Commissioner’s final decision] or within such further time as the Commissioner . .

. may allow,” 42 U.S.C. § 405(g), but this action was commenced in May 2013, more than one


                                                  7
year after the final decision in January 2012. Furthermore, there is nothing in the record to

suggest that the Commissioner extended the 60-day limitations period.

IV.    CONCLUSION

        For the foregoing reasons, Defendant’s motion for judgment on the pleadings is

granted and this case is dismissed. A separate Order accompanies this Memorandum Opinion.



                                                     /s/ Beryl A. Howell
                                                    UNITED STATES DISTRICT JUDGE
DATE: February 25, 2014




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