Opinion
CIVIL NO. SA-02-CA-920-EP
August 18, 2003
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
TO: United States District Judge
Pursuant to the informal referral in the above-styled and numbered cause of action to the undersigned United States Magistrate Judge and consistent with the authority vested in United States Magistrate Judges under the provisions of 28 U.S.C. § 636(b)(1)(B) and rule 1(d) and (h) of the Local Rules for the Assignment of Duties to United States Magistrate Judges in the Western District of Texas, effective January 1, 1994, the following report is submitted for your review and consideration.
I. JURISDICTION
Plaintiff alleges subject matter jurisdiction pursuant to 42 U.S.C. § 405(g). Subject matter jurisdiction is contested by defendant.
Docket no. 1.
II. PROCEDURAL HISTORY
This is an action to review a decision of the Commissioner of Health and Human Services under § 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Plaintiff, Edward Drzymalla, instituted this action pursuant to 42 U.S.C. § 405(g) seeking review of the determination of Jo Anne B. Barnhart, the Commissioner of the Social Security Administration, to not reopen a prior application. Plaintiff filed an application for benefits on or about May 30, 1997, and the application was denied on September 24, 1997. Plaintiff did not seek review of or appeal the denial.
Transcript at 5, 77-80.
Id.
On August 13, 1998, plaintiff filed a protective application for supplemental security income benefits, alleging a disability onset date of January 1, 1989. The Social Security Administration denied the application both initially and upon reconsideration. On June 23, 1999, an Administrative Law Judge ("ALJ") held a hearing, at which plaintiff was represented by an attorney. Based on the testimony of the medical expert, the ALJ determined that plaintiff had an impairment that met listing 12.04, and plaintiff was allowed to amend his disability onset date to October 28, 1997. Near the conclusion of the hearing, plaintiff's attorney asked if the approved amendment of plaintiff's onset date meant that plaintiff need to re-open the prior, unfavorable decision; the ALJ stated he would consider plaintiffs request to re-open the prior application, if necessary. On July 13, 1999, the ALJ determined that plaintiff was disabled from October 27, 1997, and awarded plaintiff supplement security income benefits as of the date of the August 13, 1998 protective application, The ALJ's decision did not address plaintiffs request to re-open the prior application in order to be able to receive benefits prior to August 1998.
Id. 134-35, 158-60.
Id. at 134-35.
Id. at 395-409.
Id. at 408.
Docket no. 14, Exhibit A, July 13, 1999 decision at 1. Simply for purposes of clarity of the record, the Court notes that the ALJ's July 13, 1999 decision and the August 20, 1999 amended decision, discussed further below, state plaintiffs onset date was October 28. 1997. but award plaintiff benefits from October 27, 1997. Id. and Transcript at 12.
Docket no. 14, attachment. SSI benefits "may not be made for any period that precedes the first month following the date on which an application is made." 20 C.F.R. § 416.501.
Docket no. 14, Exhibit A, July 13, 1999 decision at 1 and 3.
On August 9, 1999, plaintiff renewed his motion to re-open the prior application in order that plaintiff might receive benefits beginning on October 1997, the alleged onset date. Plaintiff also requested that the ALJ correct typographical errors contained within the July 1999 decision. On August 20, 1999, the ALJ issued an amended decision that corrected certain typographical errors, but did not address plaintiffs motion to re-open.
Transcript at 394.
1d.
Id. at 12-14.
On or about October 26, 1999, plaintiff requested review of the ALJ's favorable decision by the Appeals Council on the sole ground that the ALJ did not act on plaintiffs motion to reopen the prior application. Plaintiff asserted that good cause existed to re-open and requested "that the Appeals Council act to reopen the prior application of the claimant, which will allow benefits back to the amended onset date found by the [ALJ] of October 27, 1997" On July 24, 2002, the Appeals Council addressed and expressly denied plaintiffs request to re-open. The Appeals Council explained that "[b]ecause neither good cause nor any other basis to reopen exists, the Council has not reopened the determination dated September 24, 1997, which stands as the final decision of the Commissioner on your application of May 30, 1997." The Council also stated that "[p]ursuant to the regulatory provisions in 20 C.F.R. § 416.1403, you are not entitled to court review under section 1631(c)(3) of the Social Security Act on the issue of reopening." Plaintiff now appeals that decision.
Id. at 392-93.
Id.
Id. at 4-5.
Id. at 5.
Id.
On May 12, 2003, plaintiff filed a motion for summary judgment alleging that the ALJ failed to rule on the request to reopen the May 1997 application as required by HALLEX1-20-901. Defendant filed a response on July 14, 2002, arguing that, at plaintiffs request, the Appeals Council properly considered whether to re-open the May 1997 application and the Appeals Council's decision not to re-open the prior application is not subject to judicial review, pursuant to 20 C.F.R. § 416.1403(a)(5). Plaintiff filed a reply brief on August 13, 2003, asserting, in part, that authority cited by defendant is not on point.
Docket no. 14 at 6.
Docket no. 17 at 3-4.
Id. at 4-6.
Docket no. 20 at 1-2. Plaintiff also argues the Commissioner did not address the HALLEX mandate that the ALJ include in the decision a finding on the request to re-open. Docket no. 14 at 6. But, plaintiff did not ask the Appeals Council to remand the decision to the ALJ with an order that he make findings on plaintiffs request to reopen. Rather, plaintiff asked the Appeals Council to "act to reopen the prior application" (Transcript at 392-93), which the Appeals Council expressly declined to do (id. at 5). As discussed herein, the Appeals Council's express decision not to re-open is not reviewable in this Court, and, therefore, this report does not further address plaintiff's request that the case be remanded to the ALJ to address plaintiff's request to re-open and to make findings in support of a decision. Docket no. 14 at 7.
III. ISSUE
Whether the Court has subject matter jurisdiction over the Commissioner's decision to not re-open a prior application.
IV. ANALYSIS
Defendant argues that plaintiff is not entitled to judicial review of the Appeals Council's denial of the request to re-open the May 1997 application. In brief, defendant argues a decision to re-open is discretionary, the Appeals Council properly addressed plaintiff's request to re-open, and the Appeals Council's denial of the request to re-open is not subject to judicial review.The Social Security Act does not specifically provide for the right to re-open a prior application and "the Supreme Court has found no independent jurisdictional foundation" authorizing review when a request to re-open is denied. The opportunity to re-open is afforded by regulation, 20 C.F.R. § 416.1487-416.1489, providing that a determination may be re-opened within certain time frames and pursuant to certain criteria, but the regulations specifically bar the right to judicial review when a request to re-open is denied. Section 416.1403(a)(5) provides, in relevant part, as follows:
Califano v. Sanders, 430 U.S. 99, 108, 97 S.Ct. 980, 986 (1977).
Torres v. Shalala. 48 F.3d 887, 889 (5th Cir. 1995) (citing Sanders. 430 U.S. at 108, 97 S.Ct. at 986).
With respect to the merits of the Appeals Council's decision, the record indicates plaintiff made his prior application on May 30, 1997 and the denial was dated September 24, 1997 — more than one year after the June 23, 1999 oral request to re-open made during the hearing before the ALJ; plaintiff has made no allegation of fraud or similar fault; and the Appeals Council did not find "good cause" to re-open. See20C.F.R. § 416,1488-416,1489. Plaintiff argues that the medical expert's testimony is new evidence that shows "benefits should commence earlier than the August 1998 application" (docket no. 14 at 6). But, medical expert identified plaintiffs onset date as October 1997 (Transcript at 404, 406-08). Plaintiff cites no portion of the medical expert's testimony or evidence that establishes plaintiffs disability before the September 1997 decision. (For the record, it is noted that portions of the transcript of the medical expert's testimony appear to refer to October 1998, but the Government concedes the he "identified Plaintiffs date of disability onset as October 1997 (docket no. 17 at 6), as later found by the ALJ (Transcript at 12-14).
Sanders, 430 U.S. at 108, 97 S.Ct. at 986; see 20 C.F.R. § 416.1487.
(a) Administrative actions that are not initial determinations may be reviewed by us, but they are not subject to the administrative review process provided by the subpart and they are not subject to judicial review. These actions include, but are not limited to, an action about —
(5) Denial of a request to reopen a determination or a decision[.] The essence of plaintiffs motion for summary judgment is to seek judicial review of the Commission's decision denying the request to re-open the May 30, 1997 application and the September 24, 1997 decision on that May application. As noted, there is no statutory scheme providing for judicial review of the Commissioner's denial of a request to re-open a claim, nor is there an independent jurisdictional basis for review of such a denial. As there is no authority for such review, the Court recommends that plaintiffs motion should be dismissed for want of jurisdiction.
20 C.F.R. § 416,1403(a)(5).
Sanders, 430 U.S. at 108, 97 S.Ct, at 986);Torres, 48 F.3d at 889.
Plaintiff's reliance on Cole v. Barnhart. 288 F.3d 149 (5th Cir. 2002) and Cieutat v. Bowen, 824 F.2d 348 (5th Cir. 1987) is misplaced. Both cases addressed the Appeals Council reopening a prior application, not a decision to deny plaintiffs request to re-open. In addition, the Appeals Council's decision to re-open resulted in at least a partially unfavorable decision to each plaintiff. Cole, 288 F.3d at 150; Cieutat, 824 F.2d at 358 n. 15.
V. RECOMMENDATION
The Court recommends that this case be DISMISSED for lack of subject matter jurisdiction. Accordingly, plaintiffs motion for summary judgment should be denied as moot.VI. INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT/APPEAL
The United States District Clerk shall serve a copy of this Report and Recommendation on each and every party either (1) by certified mail, return receipt requested, or (2) by facsimile if authorization to do so is on file with the Clerk. According to 28 U.S.C. § 636(b)(1) and Rule 72(b), FED. R. Civ. P., any party who desires to object to this report must serve and file written objections to the Report and Recommendation within 10 days after being served with a copy unless this time period is modified by the District Court. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the District Court need not consider frivolous, conclusive or general objections. Such party shall file the objections with the Clerk of the Court, and serve the objections on all other parties and the Magistrate Judge. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the District Court. Additionally, any failure to file written objections to the proposed findings, conclusions and recommendations contained in this Report and Recommendation within 10 days after being served with a copy shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.ORDER
All matters for which this cause was referred to the undersigned magistrate judge having been disposed of,IT IS HEREBY ORDERED that this cause is returned to the District Court for all purposes.