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explaining that, if the plaintiff had shown a change in circumstances, "the Commissioner's previous determination as to the earlier claim concerning the earlier time period should not have res judicata effect as to the subsequent time period"
Summary of this case from Concannon v. SaulOpinion
No. C 01-03738 WHA
November 19, 2002
ORDER GRANTING DEFENDANT'S MOTION TO DISMISS
INTRODUCTION
In this social-security appeal, defendant moves to dismiss plaintiffs appeal, alleging lack of subject-matter jurisdiction because the Commissioner's res judicata decision is not subject to judicial review and the plaintiff has not raised a colorable constitutional claim. This order agrees and dismisses plaintiffs appeal.
STATEMENT
On December 27, 1993, plaintiff filed an application for disability insurance benefits under Title II of the Social Security Act. In this first application for benefits, plaintiff had no lawyer. This application was denied through the reconsideration level of review on April 27, 1994, and not appealed further.
On November 15, 1999, plaintiff filed the present application for disability insurance benefits and on February 24, 2000, plaintiff requested a hearing. On February 9, 2001. an administrative law judge issued a decision in favor of plaintiff. Thereafter, the Office of Quality Assurance and Performance Assessment of the Social Security Administration referred this case to the Appeals Council for consideration. On April 9, 2001, the Appeals Council advised plaintiff that on its own motion it was reviewing the ALJ's decision.
On June 15, 2001, the Appeals Council issued an order dismissing plaintiffs request for a hearing filed on February 24, 2000. The order held that plaintiffs application was bared by res judicata on the issue of disability by the initial determination of March 4, 1994 and the reconsideration determination on April 27, 1994. The order noted that plaintiffs claim stated the same onset date and basis for disability as her initial determination (Ford Decl. Exh. 5).
The Appeals Council vacated its June 15, 2001, order in to consider additional evidence from plaintiff. Plaintiff argued that res judicata should not be applied because of new evidence from her doctor Dr. E. Fernandes. The Council found that the evidence submitted was not new and material for the period prior to December 31, 1991, the date plaintiff was last insured for disability insurance purposes. The Council issued an order on August 23, 2001, ruling that res judicata applies and that there is also no basis for reopening the prior final determination (Ford Decl Exh. 6).
On October 3, 2001, plaintiff instituted this action. Defendant then filed this motion to dismiss on March 6, 2002, claiming that the court lacks jurisdiction to review the Commissioner's decision.
The Commissioner characterizes its final "decision" at issue in this lawsuit as the application of res judicata and a refusal to re-open plaintiffs claim. Because the decision not to re-open a claim only can be challenged on constitutional grounds or when the Commissioner in fact re-opened a claim, section 1 of the following analysis only addresses the application of res judicata. Krupelman v. Heckler, 767 F.2d 586, 588 (9th Cir. 1985). Sections 2 and 3 below, addressing de facto re-openings and constitutional challenges, address both the application of res judicata and the refusal to re-open plaintiffs claim.
ANALYSIS
1. Res Judicata Decision is Reviewable as to Whether the Precluded Claim is the Same Claim.The Commissioner may apply res judicata and decline to reopen a prior application with respect to which she already has made a determination. Krumpelman v. Heckler, 767 F.2d 586, 588 (9th Cir. 1985). As a general matter, the Commissioner's application of res judicata and refusal to reopen a decision is considered discretionary and therefore is not subject to judicial review. Ibid. Accordingly, defendant brings this motion arguing that the court lacks jurisdiction because there has been no "final decision" by the Commissioner.
The Ninth Circuit has acknowledged limited exceptions, however, to the general rule that a res judicata decision cannot be reviewed by a district court. A "district court has the jurisdiction to determine, and should determine, whether the claim precluded is the same as the claim previously determined." Ibid. "[I]f administrative res judicata has been applied in bar of a subsequent claim which, properly assessed, is not the same for res judicata purposes, jurisdiction to engage in judicial review exists. In that situation the subsequent claim is necessarily, in legal contemplation, a different one whose merits have never been addressed administratively." McGowen v. Harris, 666 F.2d 60, 65 (4th Cir. 1981). "Whether it is the same claim must necessarily be determined according to general principles of res judicata. . ." Ibid. Two claims are considered the same if they present the same parties, the same facts and the same issues. See Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995).
Thus this order must determine whether plaintiffs second claim was the same as her first claim. Plaintiff maintains that it is not the same because her 1999 claim presented new medical evidence documenting her impairment from before her date last insured and extending to 2000. In this regard, plaintiff reads too narrowly the concept of "same" claim. The caselaw suggests that if plaintiff is putting forth a claim for disability based on the same causes for the same time period, it is the "same" claim. Krumpelman, 767 F.3d at 588. "The unitary nature of the claim is not affected by the fact that following denial on the merits of the claim as originally presented, the claimant presented `new and material' evidence. . ." McGowen, 666 F.2d at 66-67. Here, plaintiffs claim was for the same time period and for the same disability. The new additional evidence of the same disability did not create a different claim, only a different mix of evidence in support of the claim.
Plaintiff also asserts that changed circumstances precluded application of res judicata. Plaintiff contends that chronic fatigue syndrome was not recognized by the Social Security Administration as "a medically determinable impairment that can be the basis for a finding of "disability" until Social Security Rule 99-2p was passed in 1999. Here plaintiff incorrectly asserts a "changed circumstances" rationale against imposition of res judicata. The Ninth Circuit has recognized that the Commissioner may not "apply res judicata to the period subsequent to a prior determination" where the circumstances have changed since that determination. Lester, 81 F.3d at 827 (emphasis in original). For instance, if plaintiffs condition worsened, the Commissioner's previous determination as to the earlier claim concerning the earlier time period should not have res judicata effect as to the subsequent time period. Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985); Lester, 81 F.3d at 827 (applicant turned 50 after the decision and would therefore be in a different age category). Here, however, plaintiff only is asserting claims for the period before the initial determination — and not for the time subsequent to the denial of benefits. Accordingly, plaintiff may not challenge the res judicata decision on this ground.
2. Res Judicata Decision or Decision Not to Re-Open Claim is Reviewable Where Commissioner De Facto Re-opened Claim.
Even if a claim is the same, and therefore properly barred by res judicata, the Commissioner has the administrative discretion to re-open the old claim. 20 C.F.R. § 404.989. Thus even if the Commission portends that it did not re-open the claim or that it applied res judicata from the old claim, if the Commissioner does in fact re-open the claim and reconsider it on the merits, the Commissioner's decision is reviewable by the court. Id. at 589. Here, however, there is no indication whatsoever that the Appeals Council, which applied res judicata to the issue of disability, re-opened the earlier claim. Accordingly, its decision is not reviewable on this basis.
3. Res Judicata Decision is Reviewable Where Plaintiff has Stated a Colorable Constitutiona1 Claim.
A district court may review the Commissioner's determination of res judicata if the plaintiff has presented a colorable constitutional claim. Lester, 81 F.3d at 827. A colorable constitutional claim is stated if a plaintiff shows that he or she did not have counsel or other suitable representation and his disability prevented him from understanding and pursuing administrative remedies. Udd v. Massanari, 245 F.3d 1096, 1099 (9th Cir. 2001) (plaintiff must show a "mental or physical condition which limits the claimant's ability to do things for him/herself. SSR 91-5p"). The standard for stating a colorable claim is low. Rolen v. Barnhart, 273 F.3d 1189, 1191 (9th Cir. 2001) ("Because [plaintiff] claims that he lost benefits because he was denied due process, and cites arguably relevant caselaw in support of his due process claim, he satisfies this standard").
The parties do not dispute that plaintiff was without assistance of counsel on her initial claim. The issue then is whether plaintiff has alleged that she suffered a mental illness that prevented due process of her claim. Plaintiff must allege facts sufficient to establish that she had a mental illness that would have prevented her from her obtaining a fair proceeding on her first claim. Plaintiff has not done so here.
Even if plaintiff has stated a colorable claim merely by alleging that she suffers from a mental illness, this order still would find that plaintiffs claim fails. There is no material dispute of fact as to plaintiffs condition. Accordingly, the court may evaluate plaintiffs claim on a summary judgment standard. Hoye v. Sullivan, 985 F.2d 990, 992 (9th Cir. 1992):
Hoye argues the district court erred by making its jurisdictional determination without holding an evidentiary hearing or applying a summary judgment standard. We disagree. The material jurisdictional facts are not in dispute. Hoye has not alleged facts sufficient to state a violation of substantive or procedural due process. Even if the district court had applied a summary judgment standard, there would have been no basis for subject matter jurisdiction.
Plaintiff has presented no offer of proof and merely states that she "has presented evidence of that she suffered from depression in 1990 and 1991 (Decl. of Ford, EXHIBIT 3 EXHIBIT 4.)" (Opp. at 9). The exhibits cited are the February 9, 2001, order which was over turned and the April 9. 2001, review by the Appeals Council, respectively. The April review decision overrules the earlier finding that plaintiff had "a severe depressive disorder." It ruled that the "evidence is insufficient to establish a mental impairment prior to the date last insured" (Ford Decl. Exh. 4). The Appeals Council noted specifically that the record's "references to depression in the somatic notes in 1990 and 1991 also show no indication of severe symptoms that would have significant impact on the claimant's functioning" ( Ibid.). While the record shows that plaintiff may have suffered some degree of depression, there is no evidence that it rose to a level that would have curtailed her due process.
Plaintiffs inadequate showing fails to state a colorable constitutional claim warranting an evidentiary hearing on whether her mental illness foreclosed due process in the proceeding. C.f Elchediak v. Heckler, 750 F.2d 892, 895 (11th Cir. 1985) (where "[a]ll the available medical evidence confirms that he suffers from [paranoid schizophrenia that] is severe enough to have required hospitalization on several occasions" and plaintiff was hospitalized two months before he received the initial notice that his claim was denied, plaintiff stated colorable claim); Udd, 245 F.3d at 100-01 (res judicata should not be applied to schizophrenic plaintiff who was hospitalized a week before the termination of his benefits, and who "was experiencing auditory hallucinations and bizarre episodes, and his insight and judgment were "poor"'). There is no need here for the Court to remand this issue to the Commissioner for an evidentiary hearing on plaintiffs mental illness (or hold one itself) because plaintiff has not stated a colorable claim.
CONCLUSION
Plaintiff has not alleged facts sufficient for the Court to have subject matter jurisdiction to review the imposition of res judicata and failure to re-open plaintiffs claim for benefits. Accordingly, plaintiffs appeal is DISMISSED. The Clerk shall CLOSE the file.