MEMORANDUM OPINION AND ORDER REJECTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE

JOHN TUNHEIM, District Judge

Plaintiff Randy Anderson ("plaintiff") brings this action against the Commissioner of Social Security ("Commissioner") seeking judicial review of the Commissioner's decision not to re-open plaintiff's prior applications for disability benefits. The parties submitted cross motions for summary judgment. In a Report and Recommendation dated January 20, 2004, United States Magistrate Judge Jonathan Lebedoff recommended that the Court deny plaintiff's motion and grant defendant's motion. Plaintiff objected to the Report and Recommendation. The Court has reviewed de novo plaintiff's objections pursuant to 28 U.S.C. § 636(b)(1)(C) and D. Minn. LR 72.1(c)(2). For the reasons set forth below, the Court rejects the Magistrate Judge's recommendation, denies plaintiff's motion for summary judgment, denies the Commissioner's motion for summary judgment, and remands the matter for further proceedings consistent with this opinion.

BACKGROUND

Plaintiff, who suffers from schizophrenia, applied for disability benefits in June 1978 and July 1980. Both applications were denied. Plaintiff received notices advising him of his right to appeal the denials, but did not pursue the available administrative remedies. Currently, no record of the prior applications exists. Plaintiff was not represented by counsel at the time of the 1978 and 1980 denials.

In 1999, plaintiff again applied for benefits. In connection with the 1999 application, plaintiff requested that his 1978 and 1980 applications be re-opened for good cause pursuant to 20 C.F.R. §§ 404.988, 404.989. (A.R. at 220.) Plaintiff also argued that re-opening was warranted under Social Security Ruling ("SSR") 91-5p. (A.R. at 221.) The Administrative Law Judge ("ALJ") granted the 1999 application for benefits, finding plaintiff disabled as of August 30, 1974, but denied the request to re-open the earlier applications. The ALJ cited 20 C.F.R. § 404.988 in his denial of plaintiff's request for re-opening, but did not refer to SSR 91-5p in that opinion. (A.R. at 25.) Plaintiff is currently receiving benefits based on the 1999 application.

Plaintiff appealed the ALJ's refusal to re-open the prior applications to the Appeals Council. In his memorandum to the Appeals Council, plaintiff argued, as he had to the ALJ, that the prior applications had been constructively re-opened and that good cause existed to re-open the prior claims because they fell within the provisions of SSR 91-5p. (A.R. at 14-16.) Plaintiff did not object to the ALJ's construction of his request as one for re-opening. Plaintiff argued, in the alternative, that the denial notices he received in 1978 and 1980 were defective and that good cause for filing a late request for review existed under the provisions of SSR 95-1p. The Appeals Council denied plaintiff's request for review of the ALJ's decision not to re-open the prior applications, noting that plaintiff did not meet the provisions of SSR 95-1p and was not entitled to judicial review under 20 C.F.R. § 404.903. The Appeals Council made no specific findings in its denial notice, stating simply that the ALJ had addressed the issue of reopening and that plaintiff did not fall within the provisions of SSR 95-1p. (A.R. at 5.) Because the Appeals Council denied the request for review, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R §§ 404.981, 416.1481.

In his appeal to this Court, plaintiff alleges violations of his right to due process because (1) he lacked the mental capacity to understand and request review of the denials of his 1978 and 1980 applications, and (2) any notice issued to him following the denials did not adequately advise him of his right to appeal. The Magistrate Judge concluded that plaintiff's right to due process was not offended by the ALJ's decision because plaintiff had a meaningful opportunity to be heard. The Magistrate Judge concluded that the ALJ had determined that plaintiff's mental disability did not impair his ability to understand and respond to the 1978 and 1980 denial notices, and that substantial evidence supported this determination. In addition, the Magistrate Judge concluded that plaintiff had not shown, as required by SSR 95-1p, that his failure to file a timely appeal was linked to the language of the notices. Plaintiff objects to the Magistrate Judge's conclusion that plaintiff's schizophrenia did not preclude him from understanding and acting on the denial notices.

ANALYSIS

A. Jurisdiction 42 U.S.C. § 405(g) permits judicial review of final administrative decisions made after a hearing. An administrative decision not to re-open a prior determination is generally not subject to judicial review under 42 U.S.C. § 405(g). Boock v. Shalala, 48 F.3d 348, 351 (8th Cir. 1995) (citing Califano v. Sanders, 430 U.S. 99, 107-08 (1977)). When a plaintiff raises a colorable constitutional claim, however, judicial review is appropriate. Id. (citing Sanders, 430 U.S. at 109; Gipson v. Harris, 633 F.2d 120, 122 (8th Cir. 1980)). Plaintiff's assertion that he lacked the mental capacity to understand and respond to the 1978 and 1980 denials raises a colorable due process question, see Evans v. Chater, 110 F.3d 1480, 1483 (9th Cir. 1997); Elchediak v. Heckler, 750 F.2d 892, 894-95 (11^th Cir. 1985), as does his allegation that the notices were deficient, Boock, 48 F.3d at 352. The Court agrees with the Magistrate Judge's conclusion that plaintiff's claims raise colorable constitutional questions, and thus, jurisdiction is proper in this Court. The Court now turns to the merits of plaintiff's claims.

B. Extension of Time to Request Review Under SSR 91-5p.

Plaintiff argues that his schizophrenia prevented him from pursuing his administrative remedies after his 1978 and 1980 applications for benefits were denied. Because his request to re-open those claims was denied, plaintiff appeals to this Court, arguing that due process requires (a) that the ALJ's determination that plaintiff was disabled as of August 30, 1974 lead to a finding that plaintiff lacked the capacity to understand his rights in 1978 and 1980, and (b) necessitates reopening those claims.

The Court may reject the ALJ's decision only if it is not supported by substantial evidence on the record as a whole. Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994); 42 U.S.C. § 405(g). Even if the Court might have weighed the evidence differently, it may not reverse the decision when there is enough evidence in the record to support either outcome. Culbertson, 30 F.3d at 939.

In presenting his claims to the ALJ, plaintiff explicitly requested re-opening of his prior applications pursuant to SSR 91-5p. The ALJ clearly considered plaintiff's request to be a request for re-opening and, accordingly, made his decision pursuant to 20 C.F.R. 404.988, the provision addressing re-opening. (A.R. at 25, 39.) Although plaintiff worded his request as one for re-opening, the Court believes that the substance of plaintiff's claims and his reliance on SSR 91-5p indicate that plaintiff actually requested an extension of time in which to request reconsideration of his prior applications. See Pl. Mem. in Supp. of Mot. for Summ. J. at 5 (asserting a constitutional claim that he lacked the mental capacity to request review); Def. Mem. in Supp. of Mot. for Summ. J. at 7, n. 5 (noting plaintiff's interchangeable use of "re-opening" and "request for extension of time to request reconsideration").

Re-opening and reconsideration are two very different remedies, which come into play at different points in the administrative review process. The Eighth Circuit recognized the distinction in Boock, where the court noted that both the ALJ and the Appeals Council had made distinct findings, under two separate provisions, with respect to re-opening and an extension of time for requesting reconsideration. 48 F.3d at 350 (citing 20 C.F.R. § 404.988 and 20 C.F.R. § 404.909). Re-opening typically occurs after a claimant has already exhausted all levels of administrative review. Re-opening is discretionary, does not require a hearing, and presumes that plaintiff has already received all the process he was due. 20 C.F.R. § 404.988; Boock, 48 F.3d at 350-51. Reconsideration, on the other hand, is an integral step in the administrative process. An extension of time in which to request reconsideration provides additional time to ensure that a claimant receives the due process to which he is entitled. Unlike the discretionary nature of a re-opening request, an extension of time in which to request reconsideration may be granted for good cause, and requires that findings be made. SSR 91-5p, 1991 WL 208607, at *2 (S.S.A. July 1, 1991).

Ruling 91-5p does not address re-opening, but in fact concerns requests for extension of time to request reconsideration. The ruling provides that "good cause for extending the deadline to request review" exists "when the evidence establishes that [the claimant] lacked the mental capacity to understand the procedures for requesting review," and lists specific factors to be considered in making a determination. Id. This procedure clearly aims to ensure that a claimant who, through no fault of his own, could not avail himself of each step of the administrative review process is given another chance to proceed through the process. Ruling 91-5p does not address those claimants who, having already had every opportunity to make use of the review process, wish to try again and are appropriately limited to requesting discretionary re-opening.

This Court is further persuaded by the reasoning of the court in Dolmat v. Barnhart, which, in a case very similar to the instant matter, distinguished "re-opening" from an "extension of time to file a request for reconsideration." 2004 WL 432194 (D.N.H. 2004). In that case, a pro se claimant applied for disability insurance benefits in 1997. The application was denied and the claimant requested reconsideration. After denial of benefits was affirmed on reconsideration, the claimant failed to request a hearing before an ALJ — the next step in the administrative appeals process. The claimant, then assisted by counsel, requested re-opening of the claim in 1998 and 2002, arguing that her mental disability prevented her from timely pursuing her remedies. Both requests were denied.

The claimant in Dolmat next requested review by the district court, alleging that the Commissioner's decision not to re-open her claim violated her due process rights. The district court found that "SSR 91-5p authorizes the Commissioner to consider several different factors, including a claimant's mental state, when responding to requests to extend the sixty-day deadline for `request[ing] reconsideration, [a] hearing before an administrative law judge (ALJ), review by the Appeals Council, or review by a Federal District Court.'" Id. at *3 (quoting SSR 91-5p, 1991 WL 208607, at *1). The Dolmat court saw a distinction between re-opening and an extension of time in which to request review, found that the claimant had improperly requested re-opening, and remanded to the ALJ to determine whether the claimant fell within the provisions of SSR 91-5p to be granted an extension of time in which to request further review.

The instant case is very similar to Dolmat, and requires a similar result. Although plaintiff characterizes this as a request for re-opening, his interchangeable use of the terms "re-opening" and "extension of time to request reconsideration," his continual allegations of mental incapacity, and his reference to 91-5p indicate that this should have been examined as a request for an extension of time to request review under SSR 91-5p.

Ruling 91-5p provides

When a claimant presents evidence that mental incapacity prevented him or her from timely requesting review of an adverse determination, decision, dismissal, or review by a Federal district court, and the claimant had no one legally responsible for prosecuting the claim (e.g., a parent of a claimant who is a minor, legal guardian, attorney, or other legal representative) at the time of the prior administrative action, SSA will determine whether or not good cause exists for extending the time to request review. If the claimant satisfies the substantive criteria, the time limits in the reopening regulations do not apply; so that, regardless of how much time has passed since the prior administrative action, the claimant can establish good cause for extending the deadline to request review of that action.

The claimant will have established mental incapacity for the purpose of establishing good cause when the evidence establishes that he or she lacked the mental capacity to understand the procedures for requesting review.

In determining whether a claimant lacked the mental capacity to understand the procedures for requesting review, the adjudicator must consider the following factors as they existed at the time of the prior administrative action:

— inability to read or write;

— lack of facility with the English language;

— limited education;

— any mental or physical condition which limits the claimant's ability to do things for him/herself.

SSR 91-5p, 1991 WL 208067, at *2. The ALJ is required to resolve reasonable doubt in favor of the claimant. Id.

Thus, under SSR 91-5p, an extension of time will be granted if plaintiff's mental disability at the time of his prior applications was such that he lacked the capacity to understand the procedures for requesting review. As the Magistrate Judge noted, the ALJ examined the record medical evidence concerning plaintiff's mental capacity at the time of the 1978 and 1980 applications and determined that plaintiff has suffered from, and been disabled by, schizophrenia since 1974. The ALJ did not, however, make specific findings with respect to his denial of re-opening, nor did he reference SSR 91-5p.

Not all mental disabilities are incapacitating or necessarily affect one's ability to timely request review. Vogt v. Barnhart, 2003 WL 403345, at *17 (D. Neb. 2003). This, combined with the ALJ's clear characterization of plaintiff's request as one for reopening and the discretionary standard applied to re-opening, leaves this Court unable to determine whether plaintiff's request was denied because the ALJ found that plaintiff's mental incapacity did not prevent him from timely requesting review or for some other, discretionary reason. In light of the different purposes served by requests for reconsideration and re-opening, and the different standards that attach to them, due process requires that the ALJ articulate findings with respect to plaintiff's request, pursuant to SSR 91-5p, that he be granted an extension of time in which to request reconsideration of his prior applications. Absent such findings, the Court cannot find that the ALJ's decision was supported by substantial evidence.

The Commissioner argues that, even if plaintiff's request is construed as one for an extension of time, plaintiff received the process that he was due. (Def. Response to Pl. Obj., dated Feb. 23, 2004, at 2, n. 2 (citing Boock, 48 F.3d 348).) In Boock, the court held that the Commissioner's decision not to extend time for requesting review did not violate the claimant's due process rights. This case is distinguishable from Boock. Here, plaintiff never made it past the first stages of the administrative process, and plaintiff requested and was denied only a re-opening of his claims. In Boock, the plaintiff had taken full advantage of the administrative appeals procedure, and both his request for an extension and request for re-opening had been denied by the Appeals Council. Id. at 352-53. The court in Boock reasoned that due process requires "procedures reasonably calculated to afford claimants a meaningful opportunity to be heard." Id. at 353 n. 8. In the instant case, however, the question is not whether sufficient procedures are in place, but whether plaintiff had an opportunity to avail himself of those procedures. As a result of the mischaracterization, that question was not addressed in the proceedings below.

The Court finds that the most appropriate course of action is to remand this matter to the ALJ with instructions to determine whether plaintiff, pursuant to SSR 91-5p, should be granted an extension of time in which to request reconsideration. If plaintiff is found to meet the standard provided in SSR 91-5p, plaintiff shall be permitted to resume the administrative appeal process at the point at which he abandoned it with respect to his 1978 and 1980 claims.

C. The Language of the 1978 and 1980 Denial Notices

Plaintiff also argues that the denial notices he received in 1978 and 1980 did not adequately advise him of his right to appeal. SSR 95-1p permits filing of a late appeal request if a claimant received a denial notice between September 1, 1977 and February 28, 1990. SSR 95-1p, 1995 WL 259487, at *2 (S.S.A. Apr. 26, 1995). Notices sent during that time advised claimants of their rights to appeal or to file a new claim, but failed to "state that filing a new application instead of a request for administrative review could result in the loss of benefits." Id. Some claimants alleged that this language contributed to their failure to file timely appeals. Id. The Social Security Administration must presume, absent contrary evidence, that notices dated between August 31, 1977 and March 1, 1990 are covered by the Ruling. Id. Plaintiff's notices fall within these timelines.

SSR 95-1p also requires, however, that "[i]n cases where the claimant's capacity to understand the administrative appeal process is questionable, Social Security Ruling 91-5p . . . should be applied prior to consideration under this Ruling." Id. at *3, n. 1. See also Vogt v. Barnhart, 2003 WL 403345, at *15 (D. Neb. 2003). In light of this direction and the Court's analysis in part B, supra, the Court declines to make any ruling with respect to 95-1p at this time. On remand, and after considering plaintiff's claim under SSR 91-5p, the ALJ should determine whether plaintiff is entitled to relief under SSR 95-1p.

ORDER

1. Defendant's motion for summary judgment [Docket No. 13] is DENIED;

2. Plaintiff's motion for summary judgment [Docket No. 8] is DENIED; and

3. This case is REMANDED to the ALJ for further proceedings consistent with this opinion.