VOGT v. BARNHART

Full title: FRANCES L. VOGT Plaintiff, v. JO ANNE B. BARNHART, OF THE COMMISSIONER OF…

Court: United States District Court, D. Nebraska

Date published: Feb 21, 2003

4:01CV3225 (D. Neb. Feb. 21, 2003)

Opinion

4:01CV3225

February 21, 2003

MEMORANDUM AND ORDER ON REVIEW OF THE FINAL DECISION

WARREN K. URBOM, United States District Judge

Now before me is Plaintiff Frances L. Vogt's Complaint to Review and Set Aside Decision Under the Social Security Act and Request for Trial, filing 1, which is brought pursuant to 42 U.S.C. § 405(g) and 1383(c)(3). The plaintiff seeks review of the defendant Commissioner of Social Security's decision to grant her application for (1) widow's insurance benefits under Title II of the Social Security Act, as amended, and (2) supplemental security income benefits under Title XVI of the Social Security Act, as amended. See 42 U.S.C. § 401 et seq.; id. §§ 1381 et seq. The parties have submitted briefs in support of their respective positions. (See generally Br. in Supp. of Pl.'s Position (hereinafter Pl.'s Br.); Def.'s Reply Br. (hereinafter Def.'s Br.); Reply Br. in Supp. of Pl.'s Position (hereinafter Pl.'s Reply Br.).) The defendant has also filed an answer to the complaint, along with a transcript of the administrative record. (See filings 11, 12). After carefully reviewing these materials, I find that the Commissioner's decision — to the extent that it is reviewable — must be affirmed.

I. BACKGROUND

According to the decision of the Administrative Law Judge (hereinafter "ALJ"), the plaintiff protectively filed an application for disabled widow's insurance benefits and for supplemental security income benefits on June 24, 1996. (See Transcript of Social Security Proceedings (hereinafter "Tr.") at 17.) Her application appears to have been based upon neck and back problems, headaches, blackouts, and vision problems (see id. at 90) that allegedly rendered her unable to engage in substantial gainful activity since September 1, 1995, (see id. at 163).¹ After her application was denied initially and on reconsideration,² she requested a hearing before an ALJ. (See id. at 99.) The ALJ conducted a hearing on March 26, 1998, and, in a decision dated November 19, 1998, concluded that the plaintiff was eligible for disability insurance benefits and supplemental security income benefits as of June 24, 1996. (See id. at 27.) In reaching her decision, the ALJ found, inter alia, the following:

1 The plaintiff subsequently changed her alleged onset date to June 22, 1965. (See Tr. at 17, 301.)

2 By the time of the reconsideration of her application, the plaintiff had obtained counsel (see Tr. at 95) and added "learning problems" to her list of allegedly disabling impairments (see id. at 98). Her application was denied both initially and on reconsideration due to her failure to keep appointments that were arranged to collect evidence concerning her alleged disability. (See id. at 90, 98.)

Since June 24, 1996, the Claimant has not performed substantial gainful activity, due to low back pain; shoulder pain; borderline intellectual functioning; and schizophrenia, paranoid type.

While her impairments, either singly or collectively, have not revealed the same or equivalent attendant medical findings as are recited in Appendix 1 to Subpart P of the Social Security Administration's Regulations No. 4, they have imposed significant exertional and non-exertional limitations upon her ability to function.

Ms. Vogt has no history of relevant work.

(Tr. at 26.)

Although the ALJ's decision was partly favorable to the plaintiff, the plaintiff requested that the Appeals Council of the Social Security Administration review the ALJ's decision. (See Tr. at 12.) This request was denied by letter dated on June 28, 2001, (see Tr. at 7), and, therefore, the ALJ's decision stands as the final decision of the Commissioner of Social Security.

On August 24, 2001, the plaintiff filed the instant action. (See Compl. to Review and Set Aside Decision Under the Social Security Act and Request for Trial (hereinafter "Compl."), filing 1.) She seeks a reversal of the Commissioner's decision, or, alternately, an order remanding the case for further proceedings,³ for the following reasons: (1) "By keeping the burden of proof on Mrs. Vogt even after she showed that she had a listed impairment, the Commissioner failed to evaluate this claim under the step process required by 20 C.F.R. § 404.1520 and 20 C.F.R. § 404.1594"; (2) "The Commissioner's refusal to reopen a number of prior applications works a manifest injustice on Plaintiff, denying her due process by assuming the contents of documents not in evidence and by using her mental impairment against her"; (3) "The Commissioner's decision as to the date when Plaintiff's disability began is unsupported by substantial evidence"; and (4) "The Commissioner's decision as to the date when Plaintiff's disability began fails to comply with the requirements of Social Security Ruling 83-20 and Social Security Ruling 83-15." (Id., ¶ 8.) My analysis of the plaintiff's position follows.

3 The plaintiff also seeks an award of costs. (See filing 1 at 4.)

II. STANDARD OF REVIEW

In reviewing the Commissioner's decision, I must ascertain "whether there is substantial evidence on the record as a whole to support the . . . decision." Hutsell v. Sullivan, 892 F.2d 747, 748-49 (8th Cir. 1989) (citation omitted). "Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion." Hogan v. Apfel, 239 F.3d 958, 960-61 (8th Cir. 2001). See also Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The decision should not be reversed "merely because substantial evidence would have supported an opposite conclusion." Harris v. Shalala, 45 F.3d 1190, 1193 (8th Cir. 1995) (citation omitted). However, the court's review is not simply "a rubber stamp for the [Commissioner's] decision and involves more than a search for evidence supporting the [Commissioner's] findings." Tome v. Schweiker, 724 F.2d 711, 713 (8th Cir. 1984). Indeed, "[t]o determine whether existing evidence is substantial, `[I] must consider evidence that detracts from the [Commissioner's] decision as well as evidence that supports it.'" Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999) (quoting Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). In addition, the court's review of the decision must include a determination as to whether the proper legal standards were applied. See Nettles v. Schweiker, 714 F.2d 833, 836 (8th Cir. 1983).

The ALJ is required to follow a five-step sequential analysis to determine whether an individual claimant is disabled. See 20 C.F.R. § 404.1520; id. § 416.920. The ALJ continues the analysis until either a claimant is found to be "not disabled" at one of the steps, or the claimant is found to be "disabled" at step three or step five. See id. Step one requires the ALJ to determine whether the claimant is currently engaged in any substantial gainful activity. See 20 C.F.R. § 404.1520(b); id. § 416.920(b).

If the claimant is engaged in substantial gainful activity, the ALJ will find that the claimant is not disabled. See id. Step two requires the ALJ to determine whether the claimant has an impairment or a combination of impairments that significantly limits her ability to do basic work activities. See 20 C.F.R. § 404.1520(c); id. § 416.920(c). Such activities include, inter alia, walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, seeing, hearing, speaking, and understanding. 20 C.F.R. § 404.1521(b); id. § 416.921(b). If the claimant cannot prove such an impairment, the ALJ will find that the claimant is not disabled. See 20 C.F.R. § 404.1520(c); id. § 416.920(c). Step three requires the ALJ to compare the claimant's impairment or combination of impairments to a list of predetermined "disabling" impairments. See 20 C.F.R. § 404.1520(d); id. § 416.920(d). If the claimant has an impairment that is listed or is equal to a listed impairment, the analysis ends and the claimant is found to be "disabled." See id. If a claimant does not suffer from a listed impairment or its equivalent, then the analysis proceeds to steps four and five. Step four requires the ALJ to determine whether the impairment or impairments prevent the claimant from engaging in past relevant work. See 20 C.F.R. § 404.1520(e); id. § 416.920(e). If the claimant is able to perform any past relevant work, the ALJ will find that the claimant is not disabled. See id. Step five requires the ALJ to consider the claimant's residual functional capacity,⁴ age, education, and past work experience to determine whether the claimant can do work other than that which the claimant has done in the past. See 20 C.F.R. § 404.1520(f)1); id. § 416.920(f)(1). If the ALJ determines that the claimant cannot do such work, the claimant will be found to be "disabled" at step five. "In order to qualify for disability benefits, a claimant bears the burden of proving that he or she is unable to engage in any substantial gainful activity because of a medically determinable physical or mental impairment which is expected to last for at least twelve months or result in death." Nettles v. Schweiker, 714 F.2d 833, 836 (8th Cir. 1983). However, at step five of the sequential analysis described above, the burden shifts to the Commissioner to establish that the claimant has the residual functional capacity to do "some job that exists in the national economy." Id.

4 "`Residual functional capacity' is what the claimant is able to do despite limitations caused by all of the claimant's impairments." Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000) (citing 20 C.F.R. § 404.1545(a)).

III. THE PLAINTIFF'S MEDICAL HISTORY

The records indicate that the plaintiff was seen by Dr. Rogers at the Lincoln State Hospital on July 12, 1965. (See Tr. at 380.) According to Dr. Rogers's clinical history notes, the plaintiff "had a nervous condition for about two years" prior to his examination of her. (Id.) The plaintiff was also experiencing nightmares related to traumatic events in her past, was suffering from headaches, and had been having auditory hallucinations. (See id.) Dr. Rogers concluded that the plaintiff was suffering from an acute schizophrenic reaction and mild mental retardation. (See id.) On August 20, 1965, Dr. Rogers noted that the plaintiff's "acute psychotic symptoms" subsided "quite quickly following admission," and that "[r]ather rapidly her personal hygiene and grooming improved and she became considerably more capable of coping with the normal activities of living." (Id. at 376.) Her prognosis was "considered guarded." (Id.) However, Dr. Rogers indicated that a familial conflict between the plaintiff's mother and husband "greatly contributed to having her hospitalized," and that "the changes that were effective in the family relationships may possibly avert future hospitalizations." (Id.)

The records next indicate that on January 17, 1968, the plaintiff's husband sought dental care for the plaintiff. (See Tr. at 375.) However, since the plaintiff was not "already a patient due to mental illness," she was not admitted to the hospital for dental care. (Id.)

On January 24, 1969, the plaintiff was again admitted to Lincoln State Hospital. (See Tr. at 362.) She complained of being "nervous" mainly due to her separation from her child, who was hospitalized with hydrocephalus. (Id. at 369.) She also complained of conflicts with her husband (see id.), and, after having experienced a number of miscarriages in the past, she was concerned about her pregnancy (see id. at 365). Upon her discharge on February 28, 1969, (see id. at 362, 364),⁵ the plaintiff was diagnosed with "Borderline Mental Retardation, with other condition," and "Schizophrenia, paranoid type, now in fair remission," by Dr. Charles Richardson (id. at 363). Her condition at discharge was described as "Much improved," though her prognosis was "guarded." (Id.)

5 It is unclear whether the plaintiff was actually discharged on February 27 or 28, 1969. (See Tr. at 364).

On January 2, 1970, the plaintiff visited Dr. Richardson without an appointment, stating that she "continued to feel very nervous and irritable and that this has caused an adverse affect on her marital relationship." (Tr. at 360.) She was given a prescription for Mellaril and a return appointment was scheduled. (See id.) The plaintiff returned to visit Dr. Richardson on February 2, 1970, and she stated that she "continues to do well." (Id.) She was given a prescription for Navane, and although no further appointments were scheduled, Dr. Richardson noted that the plaintiff "attends Day Care on occasion and stops by occasionally." (Id.)

The ALJ's decision includes a passing reference to a psychiatric hospitalization in 1971, but indicates that there are no records of the treatment that the plaintiff received at that time. (See Tr. at 22.) A rather lengthy period of infrequent medical contacts follows this hospitalization. According to the ALJ's decision,⁶ the plaintiff was seen next for a right knee problem in 1979. (See Tr. at 22.) "In 1984, she was seen twice in connection with what appears to have been a lump in her left breast and for left shoulder symptoms." (Id.) "In 1985, [the plaintiff] was seen for removal of a mole from her back, a cough, back and left shoulder pain, and a lump in her left breast." (Id. at 23.)

6 The medical history set forth in this paragraph is taken from the ALJ's decision, which appears to contain a well-organized and thorough recitation of the plaintiff's medical history. (See Tr. at 22-23.) Unfortunately, the decision does not always provide citations to the supporting records. (See id.) Also, although the parties' briefs each contain summaries of the plaintiff's medical history, these summaries focus primarily upon the plaintiff's psychiatric impairments and lack references to other complaints noted by the ALJ. (See Pl.'s Br. at 2-4, 9-15, 20-23, 26-29; Def.'s Br. at 3-7.) In the interests of thoroughness, I have included in my summary the elements of the plaintiff's medical history that have been noted by the ALJ, even though the parties have not referred to them in their briefs.

Next, on April 3, 1987, the plaintiff visited David Lauer, a chiropractor, and complained of "left shoulder and scapular pain," which occasionally "radiate[d] to her left arm and up into the left ear/occipital area." (Tr. at 351.) Dr. Lauer treated the plaintiff again on August 7 and 24, 1987, and on November 20, 1989, "for similar complaints." (Id.)

According to the ALJ's decision,⁷ the plaintiff was then treated for a persistent cough, a cold, and chronic bronchitis in 1989, and she was tested for tuberculosis. (See Tr. at 23.) Then, in 1989, she "was seen for evaluation of seizures." (Id.) (See also Tr. at 349-50.)

7 See supra note 6.

Dr. Lauer examined the plaintiff on April 3, 1990, and found "reduced cervical range [o]f motion, positive cervical compression, left shoulder depression, and reduced gleno-humeral movement as well." (Tr. at 351.) In a letter dated October 30, 1990, he concluded that, "[d]ue to Ms. Vogt's spinal condition certain vocational limits are applicable." (Id.) He added that he was "not qualified" to comment on the effect of the plaintiff's "mental or other impairments" on her "vocational potential." (Id.)

The ALJ's decision states that "[i]n July 1991 a consultive medical examiner reported that Ms. Vogt had almost no vision in her right eye." (Tr. at 23.) The plaintiff's vision impairment had been present for some time; in fact, this impairment (along with neck and shoulder pain) formed the basis of one of her previous claims for disability benefits.⁸ (See id. at 145-149.) She received benefits under that claim from April 1984 through October 1988, but the benefits were discontinued after her medical condition was found to have improved. (See id. at 149.)

8 According to the ALJ's decision, the plaintiff "filed some eleven prior applications for supplemental security income." (Tr. at 21.) It seems that her first application was filed on May 3, 1974, (see Pl.'s Br. at 4 n. 3), and denied on October 17, 1975, (see id. at 22). Apparently, the plaintiff did not argue that she suffered from a disabling mental impairment in connection with any of her prior applications. Instead, it seems that she expressly placed her mental impairment in issue for the first time during the hearing on her instant application.

In September and October 1996, the plaintiff received chiropractic adjustments for pain, numbness, and discomfort in her neck, shoulders, and upper back. (See Tr. at 315-17.) Then on January 16, 1997, the plaintiff was evaluated by Dr. Sanat Roy, who is a psychiatrist. The plaintiff complained of "[o]verwhelming stress and anxiety, impaired attention and concentration spans, difficulty with memory, inability to take care of her basic needs, and poor control of her finances." (Tr. at 318.) Dr. Roy noted that the plaintiff recently lost her second husband of seven years, and that since his death "she is somewhat overwhelmed and experiencing significant loneliness." (Id.) He diagnosed the plaintiff with an unspecified depressive disorder, noting that she "is showing significant understanding about her environment" and that "[c]ognitive deficit is not pronounced." (Id. at 319.) He also found that "[h]er thought content revealed no psychotic symptoms." (Id.) However, he noted that the plaintiff was experiencing anxiety, depression, and "some impairment in her immediate recall." (Id.)

The plaintiff was then seen by psychologist Richard Toye, Ph.D., on March 27, 1997, in connection with the instant claim for benefits. (See Tr. at 328.) An IQ test was administered, and she scored in the "borderline range." (Id. at 330.) Although Dr. Toye concluded that the plaintiff could not manage her own funds and that "[i]nstrumental activities of daily living may be compromised by impaired reasoning, planning, and judgment," he found that she could "perform daily self-care." (Id. at 331.) He also noted that "[s]he is likely to have increased cognitive and somatic complaints under stress." (Id.)

The plaintiff was also seen by Dr. Steven Saathoff, who evaluated the plaintiff's physical complaints on April 3, 1997. (See Tr. at 321.) He tested the plaintiff's physical capabilities, including her lifting and movement limitations, and he noted that the plaintiff was experiencing pain in her shoulder and lower back. (See id.) She also reported a strange sensation in her left side. (See id.)

Next, the plaintiff visited the Blue Valley Mental Health Center on April 23, 1997, and indicated to Kera Frederick, M. Ed., that "she was having some difficulty with the spirit that was in her home and causing disruption between her and her boyfriend." (Tr. at 354.) No further appointments were scheduled. (See id.)

Complaining of "shakes and occasional chest discomfort," the plaintiff visited Dale Miller, P.A., for an appointment on October 2, 1997. (Tr. at 359.) There was a "very noticeable tremor in both of her hands and occasional tremor noticed of the head." (Id.) In addition, the plaintiff slipped and fell while leaving the clinic, injuring her left knee. (Id.) On October 8, 1997, she was seen by Brett Robinson, M.D., who noted that the plaintiff's knee was not "causing her any problem at this time." (Id. at 355.) However, she was assessed as having "exertional chest pain with shortness of breath" and "acute bronchitis." (Id.)

In a letter dated October 17, 1998, James Cole, Ph.D., reviewed certain documents concerning the plaintiff's psychological condition and offered his professional opinion to the plaintiff's attorney. (See Tr. at 392-93.) According to Dr. Cole, the plaintiff's IQ test scores were 76 in 1955, 73 in 1965, and 75 in 1997. (See id. at 393.) He opined that together, these scores confirmed "the diagnosis of `borderline mental retardation' or `borderline IQ' classification as a relatively stable phenomenon." (Id.) He also noted that "Ms. Vogt has a history of being diagnosed with schizophrenia, paranoid type. . . ." (Id.) Dr. Cole stated, "There is evidence in this record of a chronic mental disorder, at times in remission, and emotional instability." (Id.) He added that her "psychotic" symptoms appeared to be in remission when she was seen by Dr. Toye in March 1997. (Id.)

On October 28, 1998, Dr. Richardson commented on the plaintiff's psychiatric impairments in a letter to the plaintiff's attorney. (See Tr. at 390-91.) He noted that the records documented "intermittent psychotic disorder" in 1965 and 1969. (Id. at 390.) He also stated, "I do not believe there is enough information to make any sort of reasonable inference" regarding the plaintiff's improvement through 1974, and added, "Episodes of deterioration appear to relate to levels of stress, disorder, and loss in her life." (Id.) He doubted the plaintiff's "capacity to maintain employment on any sustained basis since 1969," due to her "emotional vulnerability." (Id. at 391.)

With this medical history in mind, I will now turn to the arguments set forth in the plaintiff's brief.

IV. ANALYSIS A. The ALJ's Decision as to the Onset Date of the Plaintiff's Disability

The plaintiff argues that she had two listed impairments, see 20 C.F.R. § 404.1520(d) and id. § 416.920(d), "as early as 1969 and has continued [to have those impairments] throughout the intervening years." (See Pl.'s Br. at 8; see also id. at 9-31.) To refresh, if a claimant can demonstrate that she has an impairment that is listed or is equal to a listed impairment, the sequential analysis described above (see supra Part II) ends and the claimant is found to be "disabled" at step three. See 20 C.F.R. § 404.1520(d) and id. § 416.920(d). The plaintiff suggests that because she has suffered from two listed impairments since 1969, the ALJ's decision that she was not disabled before June 24, 1996, is not supported by substantial evidence⁹ and fails to comply with the requirements of Social Security Ruling 83-20 and Social Security Ruling 83-15. I shall review the plaintiff's arguments as to each listed impairment separately.

9 The plaintiff's argument actually blurs two distinct aspects of the ALJ's decision. First, the ALJ found at step three of the sequential analysis that the plaintiff did not suffer from a listed impairment or its equivalent at any time. (See Tr. at 26, 28, 32.) Second, the ALJ determined that the plaintiff was not disabled before June 24, 1996. (See Tr. at 24, 26-27.) I interpret the plaintiff's argument to be that because the ALJ's first, "step three" determination was erroneous with respect to all times since 1969, the plaintiff should have been found to be disabled as of 1969.

1. Listing 12.03

The plaintiff argues that from 1969 to the present¹⁰ she met the requirements for Listing 12.03, which refers to the "schizophrenic, paranoid and other psychotic disorders" category of mental disorders. See 20 C.F.R. pt. 404, Subpt. P, App. 1. The plaintiff claims that for this reason, she "qualifies as being disabled without further inquiry," (Pl.'s Br. at 4 n. 2) and that the ALJ's decision not to reopen all of the plaintiff's prior applications for benefits was erroneous, (see id. at 4-5).¹¹

10 At certain points in her brief, the plaintiff suggests that she has met the Listing 12.03 requirements since 1965. (See Pl.'s Br. at 9, 11, 12-13, 15.) Indeed, this was the argument that she presented to the ALJ. (See, e.g., Tr. at 21.) However, she now appears to argue that she met the listing requirements only between 1969 and the present. (See id. at 8, 14.)

11 The plaintiff's "reopening" arguments will be addressed in a separate section of this memorandum.

In order to establish the existence of a disability, the plaintiff bears the burden of proving not only that she can meet the relevant listing criteria (in this case, the criteria for Listing 12.03), but that her impairment has lasted or is expected to last for at least twelve months or result in death. See Nettles v. Schweiker, 714 F.2d 833, 836 (8th Cir. 1983); 20 C.F.R. § 404.1509; id. § 416.909; id. § 404.1520(d); id. § 416.920(d). In this case, the ALJ rejected the plaintiff's argument that she was disabled as of 1965, noting that although "it is certainly the case that Ms. Vogt's psychiatric impairment has persisted in varying degrees since 1965," the plaintiff's "psychiatric disability" was not "documented as persisting for at least twelve continuous months" until January 1997. (Tr. at 24.) The ALJ concluded that the plaintiff would be considered disabled as of June 24, 1996 — her protective filing date — although this finding "gives her the benefit of the doubt." (Id.) In reaching this conclusion, the ALJ considered Dr. Richardson's letter of October 21, 1998, (see id. at 390-91), and found as follows:

As Dr. Richardson himself acknowledged in his letter, the conclusion that Ms. Vogt has been unemployable since 1969 is "obviously . . . speculative." Further, Dr. Richardson admitted that his opinion is "based on observing the long term course of many persons with mix of limited intellectual capacity and vulnerability to decomposition's [sic] under stress." Rather, what is needed is evidence of Ms. Vogt's "long term course." The record indicates that Ms. Vogt functions in the borderline range intellectually and was hospitalized for one or two months each in 1965 and 1969. The evidence of ongoing psychiatric disability since 1969 is, at best, scant. Based on the dearth of evidence of ongoing psychiatric treatment until about 1997, Dr. Richardson's opinion that Ms. Vogt has been disabled since 1969 has not been given great weight.

(Tr. at 25.)

The plaintiff argues that the ALJ improperly determined that the duration requirement was not satisfied in this case, because "[s]everal factors justify the inference that both the nature and severity of the 1969 impairments carried forward not only until 1974 but onward to the present." (Pl.'s Br. at 14.) The factors are these: (1) "Dr. Richardson's contemporaneous prognosis of `guarded' for Mrs. Vogt and his predictions concerning her future functioning . . ."; (2) Dr. Richardson's opinion in his letter dated October 21, 1998, that persons with a "mix of limited intellectual capacity and vulnerability to decomposition's [sic]¹² under stress" tend to "lose initiative, lose capacity to maintain attention and concentration, decline in work related stress tolerance, [and] lose basic self confidence and capacity for sustained effort" (Tr. at 391); and (3) "there are numerous parallels . . . between the psychiatric findings and observations in the records from 1965 and 1969 on the one hand and, on the other, those of twenty-eight years later. . . ." (Pl.'s Br. at 14-15.) In short, the plaintiff argues that the evidence shows that she was disabled from 1969 to the present because she satisfied the criteria of Listing 12.03 in 1969 and had a "guarded prognosis"; she exhibits similar symptoms twenty-eight years later; and the psychiatrist who treated her in 1969 has opined that the plaintiff would not have been employable in the years since 1969.

12 In addition to the punctuation error, it seems to me that the word "decompensation," which refers to "a loss of adequate functional power," was probably intended here. Webster's Third New International Dictionary, Unabridged 587 (1969). See also 20 C.F.R. pt. 404, Subpt P, App. 1, 12.00 C.4.

There is a degree of simple, logical appeal to plaintiff's argument that since her psychotic symptoms were florid in 1969 and again twenty-eight years later, it necessarily follows that she met the 12.03 listing requirements throughout the intervening years. It seems to me, however, that this argument is inconsistent with the evidence in the record. Specifically, the plaintiff's position cannot be reconciled with the evaluations of Drs. Roy and Toye, who each found no evidence of psychotic symptoms when they evaluated the plaintiff in late 1996 and early 1997. (See Tr. at 318-19, 328-31. See also id. at 393 ("The overt symptoms of a psychotic disorder appeared to be in remission when Ms. Vogt was evaluated by Dr. Toye on March 27, 1997, although her marginal adaptive ability was noted").) In addition, I have summarized the plaintiff's lengthy medical history, and there is no indication that the plaintiff's schizophrenic symptoms existed over the course of any twelve-month period prior to 1997. (See supra Part III.) On the contrary, the evidence shows that the plaintiff's schizophrenic symptoms arose during particularly stressful times of her life and subsided within a relatively short time. (See Tr. at 376-378, 380, 381 (Dr. Rogers notes that familial conflict, nightmares of rapes and a drowning, and a recent miscarriage led to hospitalization in 1965, and that the plaintiff improved rapidly following admission); id. at 362-63 (Dr. Richardson notes that marital conflict and pregnancy presented a difficult situation that, combined with her low IQ, led to her hospitalization in 1969; he also noted her condition was much improved and that her schizophrenia was in fair remission at discharge). See also Tr. at 390 (Dr. Richardson states in 1998, "Episodes of deterioration appear to relate to levels of stress, disorder, and loss in her life.").)

In his letter of October 21, 1998, Dr. Richardson did opine that the plaintiff would not have been employable since 1969, although he admitted that this opinion was speculative. (See Tr. at 391.) He did not state, however, that the plaintiff has satisfied the criteria of Listing 12.03 since 1969. (See id. at 390-91.) Indeed, he stated that there was not enough information "to make any sort of reasonable inference" as to whether the plaintiff's impairments met the listing requirements by 1974, and he reaffirmed that the plaintiff's "[e]pisodes of deterioration appear to relate to levels of stress, disorder, and loss in her life." (Id. at 390.) Therefore, it seems to me that the ALJ properly concluded that Dr. Richardson's opinion was not entitled to great weight.

Nevertheless, the plaintiff vehemently objects to the ALJ's decision to discount Dr. Richardson's opinion. (See Pl.'s Br. at 15-20.) Quoting Social Security Ruling (SSR) 83-20, 1983 WL 31249, the plaintiff argues first that the ALJ made an "uninformed decision" by relying on the absence of evidence to support her finding that the plaintiff was not disabled before 1996, and that the ALJ's decision lacked a "legitimate medical basis." (Pl.'s Br. at 18 (emphasis omitted); see also id. at 16-20.) However, it seems to me that the ALJ's decision that the plaintiff was disabled as of June 24, 1996, is supported by substantial evidence, including the documentation provided by Dr. Roy (see Tr. at 24) and the testimony of the witnesses regarding the plaintiff's "symptomatoloy," (see id. at 20).¹³ I therefore disagree with the plaintiff's suggestion that the ALJ's decision as to the onset date was uninformed and lacked a legitimate medical basis. On the contrary, I find merit in the ALJ's comment that, to the extent that the determination of the onset date is imprecise, the plaintiff has been given the "benefit of the doubt." (Id. at 24.) As for the plaintiff's assertion that it was improper for the ALJ to reply upon the absence of evidence of impairment in rejecting the plaintiff's alleged 1965 onset date, it is well established that the plaintiff bears the burden of coming forward with medical evidence to show that she suffered from an impairment during the time she claims to have been disabled. See 20 C.F.R. § 404.1512(a), (c); id. § 416.912(a), (c). It is also apparent that Dr. Richardson's speculative opinion regarding the plaintiff's employability, which is not based upon any clinical findings from the period in question,¹⁴ may be discounted. See 20 C.F.R. § 416.927(e) (noting that physician's opinion that claimant is "unable to work" does not receive controlling weight, as this issue is reserved for the Commissioner to determine); id. § 404.1527(e) (same). See also 20 C.F.R. § 416.927(d)(2) (indicating that treating physicians' opinions are given controlling weight when they are "well-supported by medically acceptable clinical and laboratory diagnostic techniques" and are "not inconsistent with the other substantial evidence in [the] case record."); id. § 404.1527(d)(2) (same); id. § 416.927(d)(3) (noting that the weight assigned to medical opinions varies with the amount and quality of the evidence supporting those opinions); id. § 404.1527(d)(3) (same). See also SSR 96-2p, 1996 WL 374188. Finally, although the plaintiff argues that the absence of treatment information supports a disability finding in this case, the Eighth Circuit has stated repeatedly that a sparse treatment record may support a finding that the claimant is not disabled. See, e.g., Goodale v. Halter, 257 F.3d 771, 773 (8th Cir. 2001); Gowell v. Apfel, 242 F.3d 793, 798 (8th Cir. 2001) ("Gowell presented no evidence of ongoing counseling or psychiatric treatment or of deterioration or change in her mental capabilities, factors which disfavor a disability finding.") Roberts v. Apfel, 222 F.3d 466, 468-69 (8th Cir. 2000). Indeed, SSR 83-20, upon which the plaintiff relies for the proposition that the absence of evidence of disability weighs in her favor, reemphasizes that the onset date must be inferred "from the medical and other evidence," and must be based on a "legitimate medical basis." (Pl.'s Br. at 16-17.) It seems to me that if the ALJ had determined, as the plaintiff advocates, that the onset date fell within the years from 1969 through 1996 — a period for which relevant "medical and other evidence" is lacking — her decision could not have been supported by substantial evidence.

13 I note that one of the plaintiff's witnesses testified that beginning in 1997, he noticed that the plaintiff started talking to people who were not actually there. (See Tr. at 72, 74.) He added that the plaintiff did not do such things when he knew her ten years before. (See id. at 72-74.)

14 Dr. Richardson opined that the "issue" that he speculated would "substantially interfere with [the plaintiff's] ability to maintain employment" was her "ongoing vulnerability to decomposition." (Tr. at 391.) It bears noting that the record is completely devoid of evidence that the plaintiff sought treatment for any psychiatric symptoms, or "decompositions," between 1971 and 1997. Since Dr. Richardson's opinion is based upon the plaintiff's vulnerability to psychotic "decomposition," and since there is no evidence of "decomposition" affecting a twelve-month period during the years in question, Dr. Richardson's opinion as to the plaintiff's unemployability is not supported by the medical evidence. Thus, it is not entitled to controlling weight. See 20 C.F.R. § 416.927(d)(2); id. § 404.1527(d)(2). In addition, Dr. Richardson admits that his opinion is based not upon the evidence in the plaintiff's case, but upon his observations of "many persons" with impairments similar to the plaintiff's. (Tr. at 391.) This too decreases the weight to be afforded to Dr. Richardson's opinions. See 20 C.F.R. § 416.927(d)(2); id. § 404.1527(d)(2); id. § 416.927(d)(3); id. § 404.1527(d)(3).

Relatedly, the plaintiff contends that the ALJ erred by substituting her own opinion in place of Dr. Richardson's and that the ALJ's opinion is impermissibly based upon a lack of evidence of disability. (See Pl.'s Br. at 18-19.) In support of her argument, the plaintiff refers me to Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000) and Lauer v. Apfel, 245 F.3d 700, 703-04 (8th Cir. 2001). Nevland and Lauer concern the ALJ's evaluation of the plaintiff's residual functional capacity, see Nevland, 204 F.3d at 858 (holding that ALJ improperly developed the record and impermissibly drew his own inferences from medical reports when evaluating the plaintiff's residual functional capacity); Lauer, 245 F.3d at 703-704 (noting that the ALJ was required to consider medical evidence when evaluating the plaintiff's residual functional capacity), and therefore I fail to see how these cases support the plaintiff's argument. (See supra Part II (noting that the determination of whether the plaintiff has a listed impairment takes place at step three of the five-step sequential analysis, while the evaluation of the plaintiff's functional capacity takes place during later steps). See also 20 C.F.R. § 404.1520(d)-(f); id. § 416.920(d)-(f) (same).) Nevland and Lauer do not stand for the proposition that at step three of the sequential analysis to determine the existence of a disability, an ALJ cannot consider the absence of evidence of a listed impairment to support her conclusion that no listed impairment exists.

The plaintiff also refers me to SSR 83-15, 1983 WL 31245, in support of this argument. SSR 83-15 states, in part, as follows:

It is mandatory to attempt to obtain adequate descriptive information from all the sources (both inpatient and outpatient) that are treating the individual currently, as well as those in the past, in order to properly evaluate the severity of the impairment. . . . In addition to obtaining records of treatment from psychiatrists and psychologists, it is important to obtain information from outpatient clinics, community health centers, day care centers, etc.

SSR 83-15, 1983 WL 31245 at *1. Emphasizing the word "mandatory," the plaintiff argues that the ALJ failed to comply with this rule because there was an "absence of evidence" that the plaintiff was disabled between 1969 and 1996; presumably, the defendant must suffer for this absence of evidence because ALJ did not call a "medical advisor and made no attempt to ask Dr. Richardson or those who had recently tested Mrs. Vogt the questions required. . . ." (Pl.'s Br. at 19.) Although the plaintiff suggests that the ALJ failed to properly develop the record regarding the plaintiff's medical history between 1969 and 1996 (see Pl.'s Br. at 19), a thorough review of the plaintiff's medical background appears in the ALJ's decision, (see Tr. at 20, 22-25), and there is no indication that relevant evidence was omitted from the ALJ's analysis or that the ALJ failed to assemble all of the relevant medical information. In short, the plaintiff's argument seems to assume that evidence of a mental impairment between the years 1969 and 1996 must exist, and the ALJ violated Ruling 83-15 by failing to find it. However, I am not persuaded that the ALJ failed to follow the proper procedures to assemble all of the relevant evidence.

It seems to me that at bottom, the plaintiff's argument that she has met the criteria for Listing 12.03 is based upon the notion that evidence of brief hospitalizations on or about 1969, followed by the absence of any evidence of a disability for approximately 28 years, creates a presumption of disability over those years that the Commissioner must rebut. (See, e.g., Pl.'s Br. at 32.) As this notion runs directly counter to the law, the plaintiff's argument must be rejected. Alternately, to the extent that the plaintiff relies upon Dr. Richardson's opinion of October 21, 1998, as evidence of the existence of a listed impairment from 1969 to 1996, the plaintiff's position must be rejected for the reasons set forth above: the portion of Dr. Richardson's letter relied upon by the plaintiff relates to his opinion regarding the plaintiff's employability (as opposed to the severity of her impairment) and is not based upon the plaintiff's medical records during the years in question. Indeed, a careful reading of Dr. Richardson's opinion indicates that he found that there was insufficient evidence to reasonably infer the severity of the plaintiff's impairment as of 1974. I therefore fail to see how his opinion can be used to infer the severity of the plaintiff's impairment twenty years beyond that date. The ALJ's decision to reject the plaintiff's argument as to the alleged onset date of her disability is supported by substantial evidence, as is her determination that the plaintiff would be deemed disabled as of June 24, 1996. In addition, I find that the ALJ properly determined that the Listing 12.03 criteria, and in particular the twelve-month duration requirement, were not met. These decisions will therefore be affirmed.

2. Listing 12.05

The plaintiff next argues that she has satisfied the criteria for Listing 12.05C since 1969. In order to satisfy this listing, a person must suffer from "significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested . . . before age 22," 20 C.F.R. § 404, Subpt. P, App. 1, § 12.05, and must have "[a] valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function," id. § 12.05C.

The plaintiff's IQ scores have consistently fallen in the low-70's range. According to Dr. Cole's statement, the plaintiff's IQ was measured at 76 in 1955; 73 in 1965; and 75 in 1997.¹⁵ (See Tr. at 393.) There is no evidence that the plaintiff's IQ was measured in the 60-70 range at any time, and, as the plaintiff acknowledges, even Dr. Richardson opined that he could not establish that the plaintiff's impairment was equivalent to Listing 12.05C in 1969. (See Tr. at 390; see also Pl.'s Br. at 31.) Since the plaintiff's IQ does not fall within the required range of scores, I must conclude that the ALJ's determination that the plaintiff did not suffer from an impairment equivalent to Listing 12.05C (see Tr. at 29) is supported by substantial evidence. See Howard v. Massanari, 255 F.3d 577, 582-83 (8th Cir. 2001) (2-1 decision) ("We have held that where a claimant's IQ score does not fall within the range given in 12.05C, but is slightly above that range, the ALJ's determination that the claimant is not mentally retarded is supported by substantial evidence.") (citing Cockerham v. Sullivan, 895 F.2d 492, 496 (8th Cir. 1990)). For the same reason, the ALJ's decision to reject the plaintiff's argument that the onset date of her disability was June 22, 1965, is supported by substantial evidence.

15 The plaintiff's Verbal IQ score was measured at 72 in 1997. (See Tr. at 330.)

It should also be noted that Listing 12.05C includes a requirement that the plaintiff suffer from another limiting impairment in addition to "mental retardation." See 20 C.F.R. § 404, Subpt. P, App. 1, § 12.05C. The plaintiff argues only that her other mental impairments, including her "schizophrenia and emotional instability," satisfy this requirement. (See Pl.'s Br. at 30; see also id. at 21-22.) However, as I noted above, the plaintiff's argument that these additional mental impairments were present between 1969 and 1997 is not supported by substantial evidence. (See supra Part IV.A.1.) Thus, even if the plaintiff were deemed to have satisfied the IQ requirement of Listing 12.05C, she has not come forward with substantial evidence to indicate that she satisfied the second requirement of that listing during the years in question.

The plaintiff offers several reasons why she should be deemed to meet the criteria for Listing 12.05C despite her failure to satisfy the IQ score requirement of that listing. Specifically, the plaintiff argues that (1) other than the IQ score requirement, she has satisfied all of the criteria of Listing 12.05C (see Pl.'s Br. at 20-22); (2) the fact that her scores fall above 70 might be attributed to measurement error (see id. at 23); (3) her emotional instability renders her with a "realistically useable IQ of 68," (see id. at 24); (4) even though there is no evidence that the plaintiff experienced the additional functional limitations required by 12.05C since 1965, SSR 83-20 and 83-15 allow for the drawing of the inference that these limitations must have existed (see id. at 25); (5) her functional limitations were more severe than necessary to satisfy the listings, and therefore offset her IQ scores (see id. at 25-29); and (6) the vocational expert's testimony at the hearing of March 26, 1998, "was virtually certain to have been the same" in 1965 or 1969 (see id. at 30), and therefore the plaintiff ought to be deemed to have met the Listing 12.05C requirements from 1965 to the present. In addition, the plaintiff argues that her "situation" (Pl.'s Br. at 24) is covered by the Program Operations Manual Systems (POMS) § DI 24215.056(D)(1)(c), which states as follows:

Listing 12.05C is based on a combination of an IQ score with an additional and significant mental impairment. The criteria for this paragraph are such that a medical equivalence determination would very rarely be required. However, slightly higher IQ's (e.g., 70-75) in the presence of other physical or mental disorders that impose additional and significant work-related limitation of function may support an equivalence determination. It should be noted that generally the higher the IQ, the less likely medical equivalence in combination with another physical or mental impairment(s) can be found.

POMS § DI 24215.056(D)(1)(c).

I must reject the plaintiff's suggestion that POMS § DI 24215.056(D)(1)(c) supports an equivalence finding with respect to Listing 12.05C during 1969 through 1996. In Walker v. Massanari, 149 F. Supp.2d 843, 847-48 (S.D.Iowa 2001), the claimant persuaded the court that POMS § DI 24215.056(D)(1)(c) supported a determination that his impairment was equivalent to Listing 12.05C. See id. In that case, the psychologist who measured the plaintiff's IQ at 71 testified that the claimant "should still be considered to be mentally retarded." Id. at 847. In addition, the court noted that "two other tests showed that [the plaintiff's] IQ was below the required threshold," id., and that the ALJ found that the plaintiff suffered from an additional severe impairment that satisfied the second prong of Listing 12.05C, id. at 848. As a result, the court found that "[s]ubstantial evidence on the record as a whole supports only one conclusion," namely, that the plaintiff's impairments equaled or met the requirements of Listing 12.05C. See id. at 848. In contrast, the plaintiff in this case has failed to demonstrate that she suffered from "an additional and significant mental impairment" during the years in question. (See supra Part IV.A.1.) In addition, the plaintiff's IQ scores never fell within the range required by the listing. Finally, while the psychologist in Walker testified that the claimant should be deemed to satisfy the listing requirements, see Walker, 149 F. Supp.2d at 847, in the instant case it is noteworthy that Dr. Richardson opined that the plaintiff's impairment was not equivalent to Listing 12.05C, (see Tr. at 390). Unlike Walker, in the present case the ALJ's determination as to the absence of a listed impairment (or its equivalent) is supported by substantial evidence. See Howard v. Massanari, 255 F.3d 577, 582-83 (8th Cir. 2001) (2-1 decision).¹⁶

16 Since the claimant in Walker evidently attained IQ scores below the required threshold, it seems to me that Walker is not only distinguishable from the instant case, but is also distinguishable from Howard.

I have considered the plaintiff's other arguments (many of which are either inherently speculative, contrary to the evidence, or have been previously addressed in this memorandum, albeit in a slightly different context, and I find that none of them, either singly or in combination, warrants a reversal of the ALJ's determinations that the plaintiff's impairment did not satisfy the criteria for Listing 12.05C and that her period of disability began on June 24, 1996. See Harris v. Shalala, 45 F.3d 1190, 1193 (8th Cir. 1995) (noting that the ALJ's decision should not be reversed "merely because substantial evidence would have supported an opposite conclusion." (citation omitted)). The ALJ's determinations are supported by substantial evidence, see Howard v. Massanari, 255 F.3d 577, 582-83 (8th Cir. 2001) (2-1 decision), and therefore they will be affirmed.

In sum, I find that the Commissioner's final decision, and in particular its findings that the plaintiff's impairments did not satisfy the criteria for Listings 12.03 and 12.05C and that the plaintiff's period of disability began on June 24, 1996, are supported by substantial evidence. I shall now turn to the plaintiff's argument that the Commissioner improperly refused to reopen the plaintiff's prior applications for benefits.

B. The ALJ's Refusal to Reopen Prior Applications for Benefits¹⁷

17 Since I have found that the Commissioner correctly determined that the plaintiff did not become entitled to benefits until June 24, 1996, it seems to me that the ALJ's refusal to reopen the prior applications may be moot. See 42 U.S.C. § 423(b) (limiting retroactive benefits for entitled individuals to a period of one year before the filing of a claim). However, as no such "mootness" argument has been raised by the parties, I shall proceed to review the plaintiff's arguments concerning the reopening of the prior applications.

The ALJ's decision notes that "Ms. Vogt has filed some eleven prior applications for supplemental security income." (Tr. at 21.) One of these applications resulted in an award of benefits from April 1984 through October 1988. (See id.) The others evidently resulted in denials. The plaintiff argued before the ALJ that these prior denials must be reopened, and that several of them must be reopened pursuant to SSR 95-1p and SSR 91-5p. (See id.)¹⁸ The ALJ found that the plaintiff's most recent prior application, which was protectively filed on July 11, 1994, was "the only prior determination that could be reopened and revised, under 20 C.F.R. § 416.988, et seq. [sic]" (Tr. at 21.)¹⁹ However, the ALJ concluded that because "no new and material evidence as to Ms. Vogt's medical condition on or about July 11, 1994 has been submitted, and none of the remaining conditions for reopening have been met," the 1994 determination would not be reopened. (Id.)

18 She may argue that she was disabled as a result of her mental impaied so thatrments during the time period covered by those applications. The plaintiff apparently never argued that she suffered from a disabling mental impairment in any of her prior applications, which date back to approximately 1974.

19 The ALJ may have intended to cite 20 C.F.R. § 404.988 or id. § 416.1488 here.

The ALJ also considered whether the denial determinations that were made between October 7, 1975, and March 23, 1994, ought to be reopened. (See Tr. at 22-23.) The ALJ first noted that these denials could not be reopened pursuant to 20 C.F.R. § 404.988 et seq., [sic]²⁰ and then proceeded to determine whether SSR 91-5p and SSR 95-1p might extend the deadline for requesting review of the denials. (See id.) The ALJ stated that "SSR 91-5p allows an extension of the deadline for appeal, if a claimant's mental or physical condition prevents her from requesting review on a timely basis," but concluded that "[t]he record . . . fails to demonstrate the existence of a mental disorder that would have prevented her from understanding the need to request review, throughout the period from October 7, 1975, the date of her first denial, through March 23, 1994, the date of her most recent denial that is not subject to reopening." (Tr. at 22.) The ALJ also found that the requirements of SSR 95-1p had not been met because "Ms. Vogt's testimony at the hearing clearly contradicts the notion that she failed to request review because of a defect in the notice sent to her by SSA." (Id. at 23.)

20 Again, the ALJ cited § 416.988 in her decision, although it seems to me that a citation to § 404.988 or § 416.1488 was probably intended.

The plaintiff argues that the ALJ's determinations are erroneous and that the previous applications should be reopened. Before proceeding to analyze these arguments, I must first determine whether or not judicial review of the ALJ's determinations is available. The Supreme Court has stated that section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), does not authorize "judicial review of alleged abuses of agency discretion in refusing to reopen claims for social security benefits." Califano v. Sanders, 430 U.S. 99, 108 (1977). Judicial review is only available in "those rare instances where the [Commissioner's] denial of a petition to reopen is challenged on constitutional grounds." Id. at 109.²¹ I must therefore determine whether the plaintiff has raised a cognizable constitutional challenge to the ALJ's determination.

21 The Eighth Circuit has recognized a second exception to the general rule that 42 U.S.C. § 405(g) does not provide a district court with jurisdiction to review reopening decisions. See Boock v. Shalala, 48 F.3d 348, 351 (8th Cir. 1995) (noting that a district court may review the Commissioner's refusal to reopen an earlier application if the Commissioner addressed the merits of the earlier application). This "constructive reopening" exception has not been advanced by the plaintiff in this case.

Parenthetically, I note that I have found it extremely difficult to identify precisely the nature of the plaintiff's constitutional claim or claims due to the fact that her "constitutional" arguments have been scattered throughout over thirty pages of her briefs. (See Pl.'s Br. at 5, 7-8, 33-46; Pl.'s Reply Br. at 1-7, 8-9,12-13, 14, 15-17, 18-21, 24.) The plaintiff's claims have been framed in a number of significantly different ways throughout the materials that she has submitted for my consideration, and they have been confounded with non-constitutional arguments, such as whether or not the ALJ's decision not to reopen the prior applications was supported by substantial evidence (see, e.g., Pl.'s Br. at 5, 33-37, 43). In addition and as I will explain below, the plaintiff has confused the concepts of "res judicata" and "reopening" prior claims, (see, e.g., Pl.'s Br. at 38-40); see also Boock v. Shalala, 48 F.3d 348, 351, 353 n. 8 (8th Cir. 1995), which makes her constitutional claims all the more difficult to parse. Nevertheless I must attempt to identify the plaintiff's constitutional claims and determine whether they are colorable before analyzing their merits. See Califano v. Sanders, 430 U.S. 99, 108-09 (1977); Boock, 48 F.3d at 351, 352-53 (8th Cir. 1995). I first note that the plaintiff's complaint contains the following allegation:

The Commissioner's refusal to reopen a number of prior applications works a manifest injustice on Plaintiff, denying her due process by assuming the contents of documents not in evidence and by using her mental impairment against her.

(Compl., filing 1, ¶ 8.B.) Thus, it appears that the plaintiff has attempted to allege a claim based upon her constitutional right to due process. However, early in her brief the plaintiff states:

As in Himler [v. Califano, 611 F.2d 137 (6th Cir. 1979)], so in this case the ultimate question is not whether Ms. Vogt is entitled to benefits but rather whether she was accorded due process and equal protection of the law by the procedures used by the Commissioner to refuse reopening of the prior claims despite new evidence showing that during the period in question Ms. Vogt had one and perhaps two listed impairments.

(Pl.'s Br. at 8.) This formulation of the plaintiff's constitutional claim adds a perfunctory reference to "equal protection" that receives no substantive elaboration in her brief. (See Pl.'s Br. at 37.) It also fails to incorporate the plaintiff's argument that she was deprived of due process because her mental impairment rendered her unable to understand her right to appeal the denials of her previous applications — an argument that I believe is meant to form the heart of her due process claim. (See Compl. ¶ 8.B; Pl.'s Br. at 33-38, 40-42.)

The plaintiff devotes additional attention to her "due process" claim in her reply brief. (See Pl.'s Reply Br. at 1-7, 8-9,12-13, 14, 15-17, 18-21, 24.) On the first page of this brief, the plaintiff offers the following comment:

Section II A of Mrs. Vogt's original brief describes both the process due to her under SSRs 91-5p, 83-15 and 83-20 and the ALJ's departures from that process: imposition of an erroneously high burden of proof; failure to address the issue of Mrs. Vogt's ability to do things (such as keep appointments or perfect appeals) for herself; and failure to use the proper rules for the drawing of inferences concerning periods for which detailed medical records are not available. In effect, these errors precluded consideration of the issues made dispositive by SSR 91-5p; and the hearing at which they occurred, therefore, cannot be considered "meaningful" as that term is used in Boock.

(Pl.'s Reply Br. at 1.)²² The plaintiff elaborates upon these arguments, stating, "The ALJ's failure to comply with [SSRs 83-15 and 83-20] just provide further examples of her failure to provide Mrs. Vogt with the process which was due under established SSA policy." (Pl.'s Reply Br. at 7. See also id. at 13.) She also suggests that she had no meaningful opportunity to present her arguments because of a pair of "rule changing ambush[es]." (Id. at 8.) I shall discuss these "ambushes" in more detail below.

22 The plaintiff repeats her contention that errors prevented her from receiving a meaningful hearing on page 21 of her reply brief.

The plaintiff then elaborates upon her claim that the ALJ imposed an erroneously high burden of proof upon her (see Pl. Reply Br. at 1), stating that the ALJ's decision to add a "documentation requirement" to the definition of disability deprived her of the right "to have her case decided under the regulatory definition of disability, not a more stringent standard imposed by the ALJ after the hearing." (Id. at 14.)

Next, the plaintiff claims that the ALJ "commits two errors which deprive Mrs. Vogt of the process due to her under established SSA policy." (Pl.'s Reply Br. at 15.) The first of these errors is the ALJ's decision to "reject Dr. Richardson's inferences and opinions about Mrs. Vogt's course from 1969 to 1997 as not being `evidence,'" which allegedly violates "SSRs 83-15 and 83-20." (Id.) Second, the plaintiff attempts to characterize the ALJ's determination that Dr. Richardson's opinion was not entitled to controlling weight as a denial of due process. (See id. at 15-17.)

At the conclusion of her reply brief the plaintiff summarizes her arguments, stating that she was denied due process because of (1) the ALJ's decision to discount Dr. Richardson's opinions; (2) the ALJ's failure to adhere to SSR 83-15 and 83-20; (3) the ALJ's refusal to give Dr. Richardson's opinion controlling weight under SSR 96-2p; (4) the ALJ's failure to apply the "actual terms" of SSR 91-5p; and (5) the Commissioner's failure to give the plaintiff a meaningful hearing to address the merits of her claim that she has been disabled due to a mental impairment since 1969. (Pl.'s Reply Br. at 24.) There is no mention of an "equal protection" constitutional claim in the plaintiff's reply brief.

I believe that the foregoing review exhausts the constitutional claims alleged by the plaintiff. Given the structure of the plaintiff's briefs, it seems to me that the best strategy for analyzing these claims is to discuss each claim in the order in which it appears. However, in the interest of efficiency I will combine arguments that are scattered in the plaintiff's briefs if it is convenient to do so. I shall proceed by studying each of the plaintiff's claims to determine whether the claims are colorable. If a claim is colorable, I will then have jurisdiction to evaluate its merits.

In passing, I note that the plaintiff has expressly disclaimed reliance upon one type of constitutional claim that can be invoked to confer jurisdiction to review the Commissioner's "reopening" decisions. Specifically, the Eighth Circuit has recognized that a claimant's right to procedural due process may be violated by a defect in the document that notifies that claimant of his or her right to appeal an adverse ruling by the Commissioner. See, e.g., Boock v. Shalala, 48 F.3d 348, 352 (8th Cir. 1995). However, in the instant case the plaintiff has stated specifically that her "due process argument refers not to the notices but rather to the ALJ's errors in applying SSR 91-5p to this case and the resulting denial of the process due under that ruling." (Pl.'s Reply Br. at 6. See also Pl.'s Br. at 38 ("The ALJ has misapprehended the issue" by concluding that the plaintiff's testimony contradicts any notion that she failed to request review due to a defect in the notices).) In addition, although the plaintiff has mentioned her right to "equal protection," see Schweiker v. Wilson, 450 U.S. 221, 226 n. 6 (1981) ("[T]he Fifth Amendment imposes on the Federal Government the same standard required of state legislation by the Equal Protection Clause of the Fourteenth Amendment"), I find that the plaintiff has failed to allege a colorable equal protection claim in this case.²³ Having eliminated these two potential bases for reviewing the Commissioner's reopening decisions, I now turn to the specific arguments presented in the plaintiff's brief.

23 The plaintiff's complaint fails to mention "equal protection," (see generally Compl., filing 1), and although the words "equal protection" appear in her brief, her equal protection claims are not differentiated from her due process claims, (see Pl.'s Br. at 8, 37.) I shall therefore simply construe all of the plaintiff's constitutional claims to be due process claims based upon the Fifth Amendment.

In section II.A. of her brief, the plaintiff argues that her prior applications for benefits should be reopened pursuant to SSR 95-1p, 1995 WL 259487 and SSR 91-5p, 1991 WL 208067. (See Pl.'s Br. at 33-38.) The plaintiff initially refers me to the first footnote in SSR 95-1p, which states, "In cases in which 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." 1995 WL 259487 at *3 n. 1. (See Pl.'s Br. at 33-34.) She then quotes from SSR 91-5p at length before arguing that she can establish good cause for extending the deadline to request review of her previous applications because the evidence shows that she lacked the mental capacity to understand the procedures for requesting review. (See id. at 34-36.) Although the plaintiff recognizes that the ALJ specifically found that the record failed to demonstrate the existence of a mental impairment that prevented the plaintiff from understanding the need to request review of the prior determinations, she takes issue with the ALJ's finding, arguing that "this conclusion has no evidentiary support, relies on unfounded assumptions . . . and disregards the investigative process required by SSR 83-20 and SSR 83-15." (Pl.'s Br. at 36.)

To the extent that the plaintiff means to argue that she was denied due process because the ALJ failed to take her alleged mental impairments into account when determining that the prior applications would not be reopened or reviewed, the plaintiff has alleged a colorable constitutional claim. See Boock v. Shalala, 48 F.3d 348, 352-53 (8th Cir. 1995). I therefore have jurisdiction to consider the merits of this claim. See id. at 353. However, I readily conclude that the claim is without merit and must be dismissed. As the plaintiff herself acknowledges, the ALJ considered whether the plaintiff's past claims should be reopened, and in so doing, she used the procedure that specifically accounts for the possibility that a mental impairment made it difficult for the plaintiff to understand the review process. (See Pl.'s Br. at 36. See also Tr. at 21-23.) The instant case is indistinguishable from Boock, wherein the claimant "took advantage of that procedure and had a full opportunity to apply for an extension of time based on the alleged inadequacy of the notice, in light of his mental condition." Boock, 48 F.3d at 352-53. As in Boock, in this case the plaintiff's argument was heard and rejected. See id. at 353. (See also Tr. at 21-23 (discussing plaintiff's arguments that the time for requesting review of the prior cases should be extended pursuant to SSR 91-5p and SSR 95-1p); id. at 398-425 (setting forth plaintiff's arguments in letters from plaintiff's attorney to the ALJ and Appeals Council).) "[D]ue process does not guarantee a favorable result, only procedures reasonably calculated to afford claimants a meaningful opportunity to be heard." Boock, 48 F.3d at 353 n. 8. The plaintiff received such an opportunity here.²⁴

24 In her reply brief, the plaintiff seizes upon the word "meaningful" in an attempt to distinguish her case from Boock. As I have elected to analyze the plaintiff's arguments in the order in which she has presented them, I will discuss this particular argument in detail below.

To the extent that the plaintiff means to allege that the ALJ's rejection of the plaintiff's arguments is, in and of itself, a due process violation because the ALJ's conclusion "has no evidentiary support, relies on unfounded assumptions . . . and disregards the investigative process required by SSR 83-20 and SSR 83-15," (Pl.'s Br. at 36), I find that the plaintiff has failed to allege a colorable constitutional claim. These arguments all reduce to a claim that the ALJ abused her discretion (or otherwise erred) in rejecting the plaintiff's argument that the prior denials must be reopened or reviewed pursuant to SSR 91-5p and SSR 95-1p. However, it is well-established that, "except to the extent that [the plaintiff] has raised colorable constitutional issues that are collateral to and not inextricably intertwined with [her] claim for benefits, that decision is judicially unreviewable, even under an abuse of discretion standard." Bullyan v. Heckler, 787 F.2d 417, 419 (8th Cir. 1986) (citations omitted). The Eighth Circuit has specifically found that arguments such as "whether due process required the [Commissioner] to determine that the prior record had been fully and fairly developed" are "inextricably intertwined with and at bottom are nothing more than an assertion that benefits should be paid." Id. at 420. Similarly, the plaintiff's arguments that the ALJ's reopening decisions were erroneous because she failed to properly develop the record under SSR 83-20 and SSR 83-15 or otherwise made a decision that was not supported by substantial evidence fall within this category of unreviewable, non-colorable claims. Parenthetically, it should also be noted that I reviewed the merits of similar arguments when discussing the ALJ's decision as to the disability onset date, and I found those arguments to be unpersuasive. (See supra Part IV.A.1.) In other words, even if I were to consider the merits of the plaintiff's arguments, the arguments would be rejected for the reasons set forth in Part IV.A. of this memorandum.

The plaintiff next argues that the ALJ used an "erroneously stringent burden of proof." (Pl.'s Br. at 37.) Specifically, she claims that the ALJ required that the plaintiff demonstrate that she had a mental impairment that prevents her from understanding the review procedures, as opposed to one that merely limits her ability to do things for herself. (See id.) This argument is based upon the following sentence in the ALJ's decision:

The record, however, fails to demonstrate the existence of a mental disorder that would have prevented her from understanding the need to request review, throughout the period from October 7, 1975, the date of her first denial, through March 23, 1994, the date of her most recent denial that is not subject to reopening.

(Tr. at 22.) In contrast, the plaintiff points out that the "policy interpretation" section of SSR 91-5p states:

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:

. . . .

— 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.

Even if I assume that this argument presents a colorable due process claim, I find it to be without merit. SSR 91-5p states only that the ALJ must "consider any mental . . . condition which limits the claimant's ability to do things for . . . herself" as a part of her "good cause" determination. Id. (emphasis added). It does not state that the existence of such a condition, without more, is sufficient to establish "good cause." Perhaps more importantly, Ruling 91-5p clearly states, "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 . . . SSA will determine whether or not good cause exists for extending the time to request review." Id. (emphasis added). I recognize that the ALJ failed to precisely duplicate this language in her decision. Compare SSR 91-5p, 1991 WL 208067 at *2 with (Tr. at 22.) However, I find that the language used by the ALJ is consistent with Ruling 91-5p,²⁵ and I am not persuaded that this "arguable deficiency in opinion-writing technique," Benskin v. Bowen, 830 F.2d 878, 883 (8th Cir. 1987), is indicative of a due process violation.

25 Remarkably, the plaintiff actually quotes this very language, including the word "prevented," in her own reply brief. (See Pl.'s Reply Br. at 8.) Her objection to this language therefore seems to contradict her other arguments.

In section II.B. of her brief, the plaintiff argues that the Social Security Administration is prohibited "from applying the doctrine of administrative res judicata to a prior application in which no hearing took place." (Pl.'s Br. at 39 (emphasis omitted).) Citing 42 U.S.C. § 205(h) and Dealy v. Heckler, 616 F. Supp. 880 (W.D.Mo. 1984), the plaintiff claims that "none of Mrs. Vogt's prior applications as to which no hearing was held can be binding now." (Pl.'s Br. at 40.) Although I find that I have jurisdiction to review this argument, I readily conclude that it is without merit. I cannot find (nor has the plaintiff directed me to) any aspect of the Commissioner's decision that was based upon the granting of preclusive effect to a prior determination. Put simply, the doctrine of res judicata was never applied so as to bar, preclude, grant, or otherwise affect any aspect of the plaintiff's current request for benefits. On the contrary, the plaintiff received a full opportunity below to raise all of her arguments regarding the onset of her disability and the reopening of prior determinations. The confusion underlying the plaintiff's position was well-described by the Eighth Circuit in Boock:

The cases cited by Boock are inapposite. These cases hold that due process is violated when the Secretary applies administrative res judicata to bar a later claim ex parte, without considering whether the claimant, in failing to appeal the earlier claim, had the mental capacity to understand the notice. An analogous situation in this case would be if the Secretary had denied Boock's request for an extension without considering whether Boock's failure to appeal might have been caused by his mental impairment. Yet, as explained above, the Secretary did consider Boock's failure to appeal.

Boock v. Shalala, 48 F.3d 348, 353 n. 8 (8th Cir. 1995) (citations omitted). In this case, as in Boock, the plaintiff's argument that she suffered from a mental impairment that justified extending the deadlines to request review of the denials of her prior applications was considered by the Commissioner. None of the plaintiff's prior applications was used to preclude that argument, or any other argument she advanced, under the doctrine of res judicata. In contrast, in Dealy v. Heckler, 616 F. Supp. 880, 881 (W.D.Mo. 1984), the claimant's second application for benefits was denied because the ALJ found that the previous denial of the claimant's request for reconsideration of her first application was binding, "and that the doctrine of res judicata required dismissal of the case" without a hearing. The facts of Dealy are clearly distinguishable from the present case. For these reasons, I reject the plaintiff's argument that her prior applications must be reexamined because the Commissioner inappropriately invoked res judicata.²⁶

26 The plaintiff's argument could be read to suggest that because no hearings were held to address any of the plaintiff's prior applications (save one), they can be reopened or reconsidered without good cause. (See Pl.'s Br. at 39 ("The Act does not condition [reopenings of decisions where no hearings were held] upon the existence of `good cause.'").) I find it unlikely that the plaintiff truly intends to advance such an argument, however, due to its utter lack of merit; that is, there is no dispute that the time period within which the plaintiff could have requested review of the determinations of her prior applications without establishing good cause has long since expired. See, e.g., 20 C.F.R. § 404.988; id. § 404.909. (See also Tr. at 22 ("Typically, an appeal must be filed within 60 days of the date of the denial determination or decision.") (emphasis added).) The fact that these determinations were reached without a hearing (that is, they are not "decisions") is irrelevant for the purposes of this argument. See id. Since the plaintiff's argument, so construed, reduces to such a baseless contention, I find it likely that the plaintiff did not intend to advance such an argument, but has instead merely misunderstood the relationship between the concept of res judicata and her present claim.

The plaintiff expands upon her "res judicata" argument in section II.C. of her brief (see Pl.'s Br. at 40-42), wherein she argues that "[i]t offends fundamental fairness . . . to bind a claimant to an adverse ruling who lacks both the mental competency and the legal assistance necessary to contest the initial determination." Young v. Bowen, 858 F.2d 951, 955 (4th Cir. 1988). (See also Pl.'s Br. at 40-42 (citing Torres v. Secretary of Health. Education, and Welfare, 475 F.2d 466 (1st Cir. 1973); Schrader v. Harris, 631 F.2d 297 (4th Cir. 1980); Culberson v. Secretary of Health and Human Services, 859 F.2d 319 (4th Cir. 1988); Parker v. Califano, 644 F.2d 1199 (6th Cir. 1981); Penner v. Schweiker, 701 F.2d 256 (3rd Cir. 1983); Green v. Weinberger, 500 F.2d 203, 205 (5th Cir. 1974); Elchediak v. Heckler, 750 F.2d 892 (11th Cir. 1985).) In Young, the ALJ and Appeals Council found that the claimant was "presently" disabled, but that there was "insufficient" or merely "speculative" evidence that the claimant was disabled during the time of her previously denied applications. Young, 858 F.2d at 953-54. Therefore, the prior applications were not reopened. Id. at 953. The Fourth Circuit reversed and decided to reopen and consider the merits of these earlier cases, holding as follows:

In the context of social security law, both res judicata and administrative finality accomplish one similar task — they prevent reexamination of the merits of an administrative decision. This may be an acceptable and even salutary result when a claimant has had a full and fair opportunity to establish any statutory entitlement. It offends fundamental fairness, however, to bind a claimant to an adverse ruling who lacks both the mental competency and the legal assistance necessary to contest the initial determination. That is the core of our decision in Shrader [v. Harris, 631 F.2d 297 (4th Cir. 1980)] and it operates with equal force whether the Secretary relies upon res judicata or some other procedural limitation.

It is, therefore, of no moment that more than four years passed before Young sought to reopen her previous applications. After she presented "prima facie proof that mental illness prevented . . . [her] from understanding the procedure necessary to obtain an evidentiary hearing after the denial of . . . [her] prior pro se claim," the Secretary could not decline to reconsider the previous claim unless he first conducted an evidentiary hearing and rebutted the prima facie case. Shrader, 631 F.2d at 302. We are thus led to the inescapable conclusion that the Secretary could not refuse to reexamine the merits of Young's earlier applications without offending due process.

Young v. Bowen, 858 F.2d 951, 955 (4th Cir. 1988) (emphasis added).²⁷ Although Young seems to support the plaintiff's argument that the ALJ's decision not to reopen and reconsider the merits of the earlier denials offends due process, it seems to me that the Fourth Circuit's analysis of this issue not only conflicts with Eighth Circuit law, but falls prey to the same sort of confusion recognized in Boock. See Boock v. Shalala, 48 F.3d 348, 353 n. 8 (8th Cir. 1995). In the Eighth Circuit, due process is satisfied if a plaintiff has a meaningful opportunity to present his argument that he should be granted an extension of time to appeal previous denial determinations because his failure to appeal those determinations was caused by his mental condition. See id. at 352-53. In the instant case, this argument was heard, considered, and ultimately rejected by both the ALJ and the Appeals Council, and under Boock, due process requires no more. To the extent that the Fourth Circuit found that due process also requires consideration of the merits of the previous denials, I must reject the plaintiff's argument that the Fourth Circuit's reasoning ought to be invoked here. Indeed, it is well-established that the Fourth Circuit's decisions on this particular issue "differ from Social Security Policy," and it should be noted that the problems generated by the Fourth Circuit's analysis in Young and Culberson necessitated the issuance of an "Acquiescence Ruling" to establish special procedures for claimants who reside within the Fourth Circuit. AR 90-4(4), 1990 WL 300819. See also SSR 91-5p, 1991 WL 208067 *3 (citing AR 90-4(4)). I shall resist the plaintiff's invitation to import the Fourth Circuit's unusual view of this issue into this district.

27 The Fourth Circuit's finding that the Secretary failed to conduct an evidentiary hearing to rebut the "prima facie proof that mental illness prevented . . . [her] from understanding the procedure necessary to obtain an evidentiary hearing after the denial of . . . [her] prior pro se claim" Young, 858 F.2d at 955, is puzzling in light of the court's summary of the factual background, which suggests that the matter of the plaintiff's impairment at the time of her previous applications was raised by her counsel and considered by the ALJ during the hearing on her latest application, see id. at 953-54. Indeed (and rather remarkably), the Fourth Circuit makes much of the fact that the Secretary "weigh[ed] the full range of medical evidence" when "determin[ing] whether there was `good cause' to reopen [claimant's] previous applications." Id. at 955-56. It would seem that under Eighth Circuit law, Young would have been deemed to have received all the process that was due in connection with her reopening claim. See Boock, 48 F.3d at 352-53. See also id. at 353 n. 8 (discussing confusion between res judicata and procedural due process). However, the Fourth Circuit viewed the Secretary's weighing of the evidence in connection with the good cause determination as a "constructive reopening," see Young, 858 F.2d at 955-56, — a finding that, with all respect, suggests that the Fourth Circuit may have erred due to a second type of confusion that was identified and addressed in Boock. See Boock, 48 F.3d at 351-52 (holding that Secretary did not address the merits of the previous claim when denying the petition to reopen those claims).

The remainder of the cases cited by the plaintiff in this section of her brief are inapposite. First, Torres v. Secretary of Health. Education, and Welfare, 475 F.2d 466 (1st Cir. 1973), predates the exceptions to the reopening time limitations "for individuals who may be prevented from pursuing their rights by mental disability," id. at 468, and, more importantly, in Torres the court held only that the claimant must have a full opportunity to present evidence "on the extent of claimant's mental impairment at relevant times in each of the years 1963-68, and on whether or not such impairment prevented the timely pursuit of his remedies," id. at 469. In the instant case, the plaintiff received such an opportunity, and therefore Torres does not require a remand for consideration of the plaintiff's arguments. Similarly, in Parker v. Califano, 644 F.2d 1199 (6th Cir. 1981), the ALJ denied the claimant's request for a hearing on the basis of res judicata. See id. at 1200. The court remanded the case for a determination by the Secretary on the issue of "whether mental illness prevented [the claimant] from understanding and pursuing her administrative remedies following the denial of her first application for benefits." Id. at 1203. Again, in the instant case the plaintiff was not precluded from raising her arguments before the ALJ and the Commissioner, and after hearing her arguments, the Commissioner determined that the plaintiff was not prevented from pursuing her administrative remedies due to a mental disorder. (See, e.g., Tr. at 21-23.) Therefore, Parker does not support the plaintiff's position. The remainder of the cases relied upon by the plaintiff are all distinguishable from the present one for similar reasons. See Penner v. Schweiker, 701 F.2d 256 (3rd Cir. 1983) (remand for consideration of whether mental incapacity prevented the claimant from understanding and pursuing his administrative remedies); Green v. Weinberger, 500 F.2d 203, 205-06 (5th Cir. 1974) (affirming district court's refusal to consider the merits of claimant's application as there was no evidence of a "major mental disability"); Elchediak v. Heckler, 750 F.2d 892, 894 (11th Cir. 1985) ("[W]e remand to the district court with instructions that it direct the Secretary to make a determination, after considering such evidence as the parties may submit, whether Mr. Elchediak's mental illness prevented him from understanding and pursuing his administrative remedies following the denial of his first application for benefits.") Therefore I find that the plaintiff's res judicata arguments, though colorable, are without merit and must be dismissed. See Boock v. Shalala, 48 F.3d 348, 352-53 (8th Cir. 1995).

In section III.A. of her brief, the plaintiff argues that her previous application for benefits in 1994 should be reopened pursuant to 20 C.F.R. § 416.1488(b) and id. § 416.1489(a)(1) because of the "new evidence," which consists of records from 1965, 1969, and 1997. (See Pl.'s Br. at 43.) Assuming that this argument amounts to a colorable constitutional claim, I readily conclude that it lacks merit. The ALJ considered all of the evidence regarding the plaintiff's disability, including the records from 1965, 1969, and 1997, and rejected the plaintiff's argument that the 1994 application must be reopened. As stated by the ALJ, "no new and material evidence as to Mrs. Vogt's medical condition on or about July 1, 1994 has been submitted, and none of the remaining conditions for reopening have been met." (Tr. at 21.) The requirements of due process were satisfied when the ALJ considered and rejected the plaintiff's argument. See Bullyan v. Heckler, 787 F.2d 417, 420 (8th Cir. 1986).

Similarly, in section III.B. of her brief, the plaintiff argues that the decision of September 27, 1990, wherein ALJ Pyle terminated the plaintiff's prior award of disability and widow's benefits (see Tr. at 145-49), must be reopened pursuant to 20 C.F.R. § 404.988(c)(8). Specifically, the plaintiff claims that the Appeal's Council's decision to affirm ALJ Pyle was erroneous because the Council was "alerted to the fact that Mrs. Vogt might have significant mental impairments," and yet "left that point completely without investigation of any kind. . . ." (Pl.'s Br. at 44.) This "alert" arguably appears in Dr. David Lauer's report, which states, "I am not qualified to comment on [the plaintiff's] mental or other impairments and their impact on vocational potential." (Pl.'s Br. at 44. See also Tr. at 351.)

Although the plaintiff does not explicitly say so, her argument reduces to a claim that the ALJ (that is, ALJ Shattil) erroneously determined that ALJ Pyle's decision, along with other determinations, is "not subject to reopening and revision, under 20 C.F.R. § 416.988, et seq. [sic]" (Tr. at 22.) Even if I were to assume that the plaintiff's argument raises a colorable due process issue that is not inextricably intertwined with her claim for benefits, the argument is meritless because the Commissioner considered and rejected the plaintiff's assertion that Judge Pyle's decision should be reopened pursuant to section 404.988. (See Tr. at 22 (stating that the "eleven denial determinations between October 7, 1975 and March 23, 1994" are not subject to reopening under 20 C.F.R. § 416.988 [sic]). See also id. at 423-24 (wherein plaintiff argues to ALJ Shattil that ALJ Pyle's decision was error "on the face of the evidence" within the meaning of § 404.988(c)(8).) See also Bullyan v. Heckler, 787 F.2d 417, 420 (8th Cir. 1986). "Very simply, due process requires and [the plaintiff] can reasonably expect no more." Bullyan, 787 F.2d at 420.

Although I have now completed my review of the "reopening" arguments set forth in the plaintiff's brief, I must now turn those set forth in her reply brief. (See Pl.'s Reply Br. at 1-7, 8-9,12-13, 14, 15-17, 18-21, 24.) Many of the arguments presented in the reply brief merely restate the arguments that I have already analyzed. For example, section I of the reply brief consists largely of a disjointed review of the arguments set forth in section II.A. of her original brief. (See Pl.'s Reply Br. at 1-9. See also id. at 1 ("Section II A of Mrs. Vogt's original brief describes both the process due to her under SSRs 91-5p, 83-15 and 83-20 and the ALJ's departures from that process . . . .").) I believe that the first new variation of her argument appears on the opening page of the reply brief, where the plaintiff claims that the errors discussed in her original brief prevented her hearing before the ALJ from being "`meaningful' as that term is used in Boock." (Pl.'s Reply Br. at 1.) However, this claim seems to be nothing more than an attempt to generate a colorable constitutional claim from a series of claims that I have already found to be either meritless or unreviewable. Although the plaintiff dresses her argument in constitutional trappings by alleging that "errors precluded consideration of the issues" by the ALJ, (Pl.'s Reply Br. at 1), the ALJ did consider the issues raised by the plaintiff in a manner consistent with the plaintiff's right to due process. The plaintiff received a "meaningful opportunity to be heard," as that phrase is used in Boock. See Boock v. Shalala, 48 F.3d 348, 353 n. 8 (8th Cir. 1995). The plaintiff's argument that the "reopening" decision was erroneous will not be semantically transformed into a colorable constitutional claim. See Bullyan v. Heckler, 787 F.2d 417, 419 (8th Cir. 1986) ("Thus, except to the extent that Bullyan has raised colorable constitutional issues that are collateral to and not inextricably intertwined with his claim for benefits . . . that decision is judicially unreviewable, even under an abuse of discretion standard. . . ." (citations omitted) (emphasis added)).

Later in her reply brief, the plaintiff repeats and elaborates upon her argument that she did not receive a meaningful hearing before the ALJ. (See Pl.'s Reply Br. at 8-9.) Specifically, she claims that her hearing was not meaningful because "the tribunal announce[d] one set of rules by way of regulation and Rulings before the hearing but after the hearing, without notice or opportunity to supplement the record, decide[d] the claim using a different, conflicting set of rules." (Id. at 8.) In support of this claim, the plaintiff cites two specific, equally meritless examples. First, she asserts that she was "ambush[ed]" when the ALJ "refused to take seriously Dr. Richardson's . . . opinion . . . even though [it is] precisely the kind of evidence which SSRs 83-15 and 83-20 required her to seek out." (Id.) I believe the flaws inherent in this assertion are adequately explained above, (see, e.g., supra Part IV.A.1), and I have found that the ALJ properly discounted Dr. Richardson's speculative opinion as to the plaintiff's employability. Second, the plaintiff claims that she was ambushed by the ALJ's imposition of a requirement that the plaintiff actually document her alleged disability. (See Pl.'s Reply Br. at 8. See also id. at 13-14.) However, the "documentation" requirement is clearly set forth in 20 C.F.R. § 404, Subpt. P, App. 1, § 12.00(D). See also id. § 404.1512; id. § 416.912. There was no "ambush."

The plaintiff next spends a great deal of effort attempting to distinguish the present case from Lewellen v. Sullivan, 949 F.2d 1015 (8th Cir. 1991). (See Pl.'s Reply Br. at 2-4.) I agree that Lewellen is inapposite for the reasons cited by the Eighth Circuit in Boock. See Boock v. Shalala, 48 F.3d 348, 353 n. 8 (8th Cir. 1995) (citing Lewellen). I have not relied upon it in reaching my conclusion that the plaintiff has failed to allege a meritorious constitutional claim in this case.

The plaintiff also spends considerable effort debating the evidence underlying the ALJ's decision not to reopen the prior applications, specifically focusing upon a small portion of the plaintiff's hearing testimony. (See Pl.'s Reply Br. at 3, 4, 5-6, 8-9.) However, as I have stated repeatedly, I cannot weigh the evidence underlying this decision under a "substantial evidence" or even "abuse of discretion" standard. Even if the plaintiff's arguments were not inextricably intertwined with the merits of her claim that the prior determinations must be reopened, as I believe they are, they were "considered and rejected" below, and "due process requires . . . no more." Bullyan v. Heckler, 787 F.2d 417, 420 (8th Cir. 1986). See also Boock v. Shalala, 48 F.3d 348, 352-53, 353 n. 8 (8th Cir. 1995).²⁸

28 The plaintiff argues that the ALJ's "reopening" decision was not only contrary to the evidence, but that the ALJ impermissibly used the plaintiff's impairment against her in refusing to reopen the prior claims. (See Pl.'s Reply Br. at 8-9 (citing Stanfield v. Chater, 970 F. Supp. 1440, 1457 (E.D.Mo. 1997); Mussman v. Apfel, 17 F. Supp.2d 885 (S.D.Iowa 1998); Adams v. Weinberger, 548 F.2d 239 (8th Cir. 1977)).) The cases cited by the plaintiff do not demonstrate that I have jurisdiction to review this "using her impairment against her" argument. See Sanfield, 970 F. Supp. at 1457 (finding that certain claims were reopened as a matter of administrative discretion, which allowed the court to review those decisions under "substantial evidence" standard," while other claims that were not reopened were deemed "res judicata"); Mussman v. Apfel, 17 F. Supp.2d 885 (S.D.Iowa 1998) (reviewing a final decision, as opposed to a reopening decision, under substantial evidence standard); Adams v. Weinberger, 548 F.2d 239 (8th Cir. 1977) (same).

Throughout the remainder of her reply brief, the plaintiff merely repeats her arguments that (1) Dr. Lauer's letter should have triggered an investigation by ALJ Pyle, (2) the ALJ failed to follow SSR 83-15, (3) the ALJ imposed a documentation requirement, (4) the ALJ improperly discounted Dr. Richardson's opinion, and (5) by failing to comply with SSR 91-5p, the plaintiff was deprived of a meaningful hearing (see Pl.'s Reply Br. at 10-17, 20-21. See also id. at 23-24 (listing arguments).) As all of these arguments have been reviewed and rejected, it seems that I have completed my analysis of the plaintiff's claim that her prior applications must be reopened.

V. CONCLUSION

I find that the ALJ's decision regarding the onset date of the plaintiff's disability is supported by substantial evidence. In reaching this conclusion, I have rejected the plaintiff's claim that she ought to have been found disabled at step three of the five-step sequential analysis described above, see 20 C.F.R. § 404.1520; id. § 416.920, as of 1965 or 1969. Therefore, the ALJ's final decision regarding the plaintiff's claim for benefits will be affirmed.

Also, the plaintiff has submitted a number of arguments in support of her contention that the Commissioner erred by failing to reopen the previous applications for benefits. However, the plaintiff has failed to submit a cognizable constitutional claim for review. Instead, she has alleged claims that are either not colorable or are completely lacking in merit. See, e.g., Boock v. Shalala, 48 F.3d 348, 351-53 (8th Cir. 1995). To the extent that the Commissioner's refusal to reopen the plaintiff's prior applications is reviewable, it will be affirmed.

IT IS ORDERED that the Commissioner of Social Security's decision is affirmed, and the relief sought by the plaintiff in her complaint, filing 1, is denied.