Opinion
CIVIL ACTION NO. 99-W-1404-N
December 7, 2000
ORDER
Plaintiff commenced the present action on November 29, 1999, seeking review of a decision of the Commissioner of Social Security denying his claim for Social Security benefits pursuant to 42 U.S.C. § 405(g). (Complaint, ¶ 1). On March 24, 2000, the Commissioner filed a motion to dismiss, arguing that there has been no "final decision" of the Commissioner as required by § 405(g) and that this court is without jurisdiction to review a denial of a request for reopening. Upon consideration of the motion to dismiss, the court concludes that it is due to be granted.
Background
In October 1992, plaintiff filed applications for supplemental security income benefits under Title XVI of the Social Security Act and for a period of disability and disability insurance benefits under Title II of the Act. (See November 3, 1993 ALJ decision, Exhibit 1 to Waxman aff.). After the claims were denied initially and on reconsideration, plaintiff appeared at a hearing before ALJ Joseph Micare in August 1993. Plaintiff asserted that he injured his back in September 1991 when he slipped and fell on a load of lumber. The ALJ found that plaintiff did not meet the disability insured status requirements of the Act and, thus, that he was not qualified for Title II benefits. The ALJ found plaintiff disabled, for purposes of supplemental security income purposes, since October 5, 1992, the date his application was filed. (Id.). Plaintiff was found ineligible for supplemental security income benefits, however, because his household income was a small amount over the income limit. (Rabren letter to Appeals Council, Exhibit 2 to Waxman aff.).
On January 27, 1997, plaintiff filed another application for supplemental security income benefits. After initial adverse determinations, the plaintiff requested a hearing before an ALJ. Prior to the hearing, plaintiff asked that the request for hearing be dismissed. In an order of dismissal entered on January 21, 1999, ALJ David Murchison dismissed the request for hearing, leaving the initial denial in effect. ALJ Murchison also addressed the plaintiff's request that the November 1993 decision be reopened due to ALJ Micare's allegedly erroneous finding that plaintiff was not insured. ALJ Murchison reviewed plaintiff's earnings record and, finding no error in the prior decision, declined to reopen it. (January 21, 1999 ALJ decision, Exhibit 1 to Waxman aff.). Plaintiff filed a request for review of the ALJ's decision, which was denied by the Appeals Council on September 24, 1999. (Exhibits 2 and 3 to Waxman aff.).
Discussion
This court's jurisdiction over the present action is governed by 42 U.S.C. § 405(g), which provides for judicial review only of "any final decision of the Commissioner of Social Security made after a hearing." 42 U.S.C. § 405(g).
As a general matter, district courts do not have jurisdiction over the [Commissioner's] refusal to reopen a claim since such a refusal is not a "final decision" within the meaning of section 405(g). Califano v. Sanders, 430 U.S. 99, 107-08, 97 S.Ct. 980, 985-86, 51 L.Ed.2d 192 (1977); Stone v. Heckler, 778 F.2d 645, 646-47 (11th Cir. 1985).Sherrod v. Chater, 74 F.3d 243, 245 (11th Cir. 1996). There is, however, jurisdiction where the plaintiff challenges the Commissioner's decision on constitutional grounds. Califano, supra, 430 U.S. at 109. Additionally, the Eleventh Circuit has noted that the "law is well established that judicial review under § 405(g) is available when a social security claim is in fact reopened and reconsidered on the merits to any extent at any administrative level." Macon v. Sullivan, 929 F.2d 1524, 1529 (11th Cir. 1991) (citing Graham v. Bowen, 786 F.2d 1113, 1114 (11th Cir. 1986) and Cherry v. Heckler, 760 F.2d 1186, 1190 (11th Cir. 1985)).
Plaintiff has not addressed the Commissioner's arguments regarding this court's jurisdiction and argues only that the November 1993 decision was in error because plaintiff in fact had sufficient quarters of coverage for insured status. He has not challenged the Commissioner's decision on constitutional grounds. The court has considered whether the claim was reconsidered on the merits by ALJ Murchison so as to confer jurisdiction on this court, and concludes that it was not.
In deciding not to reopen plaintiffs' previous claim, ALJ Murchison evaluated plaintiff's earnings record and determined that no error had been made in the previous decision. While Eleventh Circuit opinions have used broad language stating that jurisdiction exists if a case is "reconsidered on the merits to any extent," this exception to the rule set forth in Califano has not been applied broadly. See Macon, supra, 929 F.2d at 1529, 1529 n. 17 (finding de facto reopening where the Appeals Council reconsidered a previous decision by applying a different standard to the case, but noting specifically that this particular standard, which was mandated by a consent order in a class action, had not previously been applied to the facts of the case in the previous application); Wolfe v. Chater, 86 F.3d 1072, 1079 (11th Cir. 1996) (finding ALJ reopened previous determinations when he determined that previous ALJs had erred by mischaracterizing plaintiff's educational level as "limited" when it was actually "marginal" and stating, "[b]y determining that the first two ALJs had erred, the third ALJ went beyond evaluating evidence for the purpose of making a reasoned determination of its res judicata effect.");Cherry, supra, 760 F.2d at 1189 (no reopening where ALJ reviewed evidence of alleged disability prior to final decision in previous application to determine res judicata effect of prior decision and noting that the "ultimate determination that [plaintiff] was not disabled after that date was not based on the record of the prior proceeding."); Passopulos v. Sullivan, 976 F.2d 642, 645 (11th Cir. 1992) (no reopening where ALJ based denial of second application on some evidence presented in previous application, where newly applicable regulations precluded dismissal of second application on res judicata grounds).
The Commissioner's regulations permit reopening of a decision "[w]ithin four years of the date of the notice of the initial determination if [the Commissioner finds] good cause, as defined in § 404.989." 20 C.F.R. § 404.988(b). The regulations further provide that the Commissioner will find good cause if: (1) there is new and material evidence; (2) a clerical error in the computation of benefits has been made; or (3) "the evidence that was considered in making the determination or decision clearly shows on its face that an error was made." 20 C.F.R. § 404.989. The Commissioner's regulations clearly contemplate that an ALJ may consider, to some extent, the evidence presented in a previous application without reopening that previous application. In Hall v. Bowen, 840 F.2d 777, 778 (11th Cir. 1987), the court noted that "while a `reconsideration on the merits to any extent' constitutes a de facto reopening, . . . the [Commissioner] must be allowed some leeway to evaluate the proffered evidence to determine whether to reopen the case." In this case, the ALJ evaluated the plaintiff's earnings record, determined that it did not reveal that the previous ALJ had erred and, accordingly, that plaintiff had not demonstrated good cause for reopening pursuant to 20 C.F.R. § 404.988. The facts presently before the court are on point with those before the Supreme Court in Califano, where the Court found no jurisdiction despite the fact that the ALJ had "[found] no errors on the face of the evidence" and, thus, had apparently evaluated the evidence of the prior application for such errors. Califano, 430 U.S. at 103. The court concludes that it lacks jurisdiction to review the Commissioner's decision not to reopen the November 1993 decision denying plaintiff benefits.
There are other circumstances, not relevant here, permitting reopening. See 20 C.F.R. § 404.988.
The court notes, however, that ALJ Micare correctly concluded that plaintiff did not have the required 20 quarters of coverage (QCs) to meet the 20/40 rule of 20 C.F.R. § 404.130(b). In reaching her determination that plaintiff met this requirement, plaintiff's counsel has apparently not applied the rule that the applicable 40 quarter period "end[s] with that quarter" for which the plaintiff seeks a period of disability and disability insurance benefits (id.) or the rule that a calendar quarter cannot be a QC if the calendar quarter has already been counted as a QC ( 20 C.F.R. § 404.146(c)).
Conclusion
For the foregoing reasons, it isORDERED that the Commissioner's motion to dismiss is GRANTED.