Opinion
Case No. 01-4101
September 5, 2002
ORDER DENYING MOTION TO DISMISS
Plaintiff initiated this case by filing a Complaint and Application for Writ of Mandamus, asking the Court to enforce the June 29, 1990 decision of the Commissioner and compel the payment to Plaintiff of Title II and Title XVI benefits retroactively to September 1978, or at the least to 12 months prior to the filing date of the claim denied at the hearing level on August 31, 1982. The matter before the Court is the Defendant's Motion to Dismiss (Doc. 13). Defendant alleges that there has been no "final decision" of the Commissioner, as required by section 205(g) of the Social Security Act (the "Act"), and therefore the Court is without jurisdiction.
FACTS:
Plaintiff filed Applications for Disability Insurance Benefits under Title II of the Social Security Act and Supplemental Security Income Benefits under Title XVI of the Social Security Act on January 17, 1979 and on September 2, 1980, alleging that she became disabled in May 1978. These applications were denied at the initial and reconsideration levels and at the hearing levels on November 23, 1979, and May 5, 1981. Plaintiff appealed these decisions, but the Appeals Council declined review.
Plaintiff's third Application for Disability Insurance Benefits under Title II of the Social Security Act filed on July 16, 1981, was denied at the initial and reconsideration levels. The application was denied at the hearing level on August 31, 1982. Plaintiff unsuccessfully sought review by the Appeals Council. An action was brought in the United States District Court for the District of Kansas. On August 31, 1983, Plaintiff's case was remanded for rehearing. A hearing decision was issued on November 30, 1983, favorable to Plaintiff. The Appeals Council vacated that decision on February 14, 1984. Plaintiff then brought an action in the United States District Court for the District of Kansas. On June 29, 1984, the Court issued a Memorandum and Order upholding the Appeals Council's denial.
Plaintiff filed an application for Supplemental Security Income Benefits under Title XVI of the Social Security Act on September 6, 1984. In December 1984, the Social Security Administration found Plaintiff disabled.
Plaintiff filed a final Application for Disability Insurance Benefits under Title II of the Social Security Act on May 2, 1989. Plaintiff's date last insured for Disability Insurance Benefits is December 31, 1982. That application was denied at the initial and reconsideration levels. Plaintiff appealed and a hearing was held on April 6, 1990. On June 29, 1990, the Administrative Law Judge found that based on the application filed May 2, 1989, Plaintiff was entitled to a period of disability commencing March 2, 1978 and to disability insurance benefits under sections 215(i) and 223, respectively, of the Social Security Act, as amended. The June 29, 1990 Decision, which included a "Notice of Favorable Decision" form, provided in relevant part:
Although Plaintiff was deemed disabled as of her alleged onset date, she was entitled to disability insurance benefits only up to 12 months prior to the filing of her application, or May 2, 1988. See 42 U.S.C. § 423(b) and 20 C.F.R. § 404.621(a)(1)(i).
The claimant met the insured status requirements of Title II of the Act on March 2, 1978, but she continued to do so only through December 31, 1982, and not thereafter through the date of this decision. . . . Therefore, in order for the claimant to be entitled to a period of disability and to disability insurance benefits she must establish that she was disabled on or before December 31, 1982.
. . . .
I note in regard to the Court's decision [referring to the June 29, 1984 Memorandum and Order], however, that i[t] was, along with the various decisions by Administrative Law Judges prior to the passage of the Disability Benefits Reform Act of 1984 (DBRA), enacted on September 18, 1984. The latter legislation, and implementing regulations stipulate that the evaluation of mental impairments requires a longitudinal assessment of a claimant's condition, and, furthermore, rejects as a basis for decisionmaking a snapshot, consultative examination such as the one claimant underwent in 1981. It was this examination which provided the basis for the non-severe determination (relative to the mental illness question) by Judge Stanley, which determination was undisturbed by the Appeals Council in its decision of February 14, 1984, which otherwise rejected Judge Stanley's opinion. As noted, however, claimant was later found to be disabled on her supplemental security income claim of September 6, 1984. Furthermore, testimony by the medical expert at my hearing, Dr. Ralph Bharati, indicated claimant's mental impairment had been present, even if not disabling, for a number of years.
As relevant here, DBRA, above, provided options, in certain circumstances to obtain assessment of old, unfavorable rulings. Also, the Agency was required to reopen certain cases on its own motion where determinations were entered after March 1, 1981. As to the latter, the fact of a Court opinion ostensibly considering the mental illness question would have excused Social Security from any re-review on its own motion. While DBRA Section 5, did allow claimants to request review of old claims, such requests had to be filed within a year of enactment. There was no such request filed here until the issue was raised by the filing of the present claim on May 2, 1989. There is no basis, therefore, on which to find claimant is entitled to reassessment of her mental status during the time when her coverage remained in effect.
Notwithstanding the above, I believe there are reasons to afford claimant the statutorily mandated, longitudinal evaluation unless res adjudicata applies to preclude such review. . . . .
Based upon the foregoing, the Administrative Law Judge has concluded that the claimant has a significant mental impairment which has been present at all times Dpertinent herein and which has become exacerbated by her experiences and relationships with the Social Security Administration with respect to her earlier claims.
. . . .
Based on the foregoing, the Administrative Law Judge finds that it is readily apparent that the claimant has had a severe mental disorder at all times pertinent herein despite her past denials of such. Further, the record contains new and material evidence which was not available at the time the determinations were made pertaining to the claimant's first three applications. More importantly, the Administrative Law Judge is of the opinion, after carefully studying the prior determinations, that the issue of the claimant's mental impairment(s) was not properly considered by the Administration or in the hearing process.
Consequently, the Administrative Law Judge finds that the prior determinations pertaining to the claimant's disability for purposes of entitlement to benefits under Title II of the Act are not final and binding upon the claimant. This conclusion in part is supported by the DBRA legislation and the Administration's subsequent determination that the issues of Administrative Finality and Res Judicata are not applicable to claims involving mental impairments from March 1981 through August 24, 1985. Although, as was noted, there has been a District Court ruling on a prior claim after claimant's date last insured, I conclude that the posture of the case was such that the only conclusively determined issue was whether the Appeals Council's finding on non-severity in regard to alleged physical impairments was correct. Therefore, it does not bar claimant from having her Title II claim evaluated under DBRA for the first time now.
Therefore, the Administrative Law Judge finds that the claimant was disabled on March 2, 1978 as the result of a severe mental impairment, and that she has been continuously disabled at all times subsequent thereto through the date of this decision. Hence, she is entitled to a finding of "disabled" and to disability insurance benefits based upon her application filed on May 2, 1989.
Plaintiff was not represented by counsel in the proceedings resulting in the June 29, 1990 decision or in her attempt to appeal that decision. Plaintiff filed a pro se request for review on August 24, 1990, stating under reasons for disagreement: "See Attached LTR for explanation of appeal Reason I agree with ALJ decision S.S. benefits from 1978 and permantely. Freddie L. Graham It's time you pay me." There is no letter attached to the copy supplied by the Defendant in this case. The Appeals Council denied Plaintiff's request for reopening on May 15, 1991. The May 15, 1991 letter states:
As reflected in the comments you submitted with your request for review dated August 24, 1990, it appears you are not disputing the Administrative Law Judge's decision on the issue of disability but are instead requesting that benefits be granted on the basis of earlier applications. The Appeals Council has considered the request for reopening and revision of the final decision made in connection with your prior application filed July 16, 1981. The Council has considered your comments but finds that no basis has been provided for changing the Administrative Law Judge's findings in your case. The hearing decision reflects that the Administrative Law Judge addressed the issue of reopening the prior unfavorable decision and found no basis for such action (Decision, page four). The Appeals Council notes that no additional evidence has been submitted in connection with the request for reopening to warrant disturbing the Administrative Law Judge's decision. Accordingly, the Appeals Council's decision of February 14, 1984, which was subsequently affirmed by the U.S. District Court for the District of Kansas, on June 29, 1984, stands as the final decision of the Secretary on the applications dated July 16, 1981. Pursuant to 20 C.F.R. § 404.903(1), you are not entitled to court review under section 205(g) of the Social Security Act of the Appeals Council's denial of your request for reopening and revision of the final decision made in connection with your prior application for benefits.
On November 2, 2000, Plaintiff's attorney wrote to the Social Security Administration, stating that the June 29, 1990 decision appears to reopen all prior claims. It also states that page eight of the decision is missing and requests the files.
On December 19, 2000, Plaintiff again wrote the Social Security Administration advising that the June 29, 1990 decision awards back benefits retroactively to September 1978, or at least 12 months prior to the filing date of the claim denied at the hearing level on August 31, 1982 and Plaintiff should be paid those benefits. The letter states that although the decision paragraph limits back payments to May 1988, the body of the decision reopens and reverses the prior claims, at least through the date of filing of the claim denied at the hearing level on August 31, 1982.
On February 6, 2001, the Hearing Office Director of the Wichita, Kansas, Office of Hearings and Appeals, stated that Judge Werner (the Administrative Law Judge rendering the June 29, 1990 decision) advises that it was his intention that payment be made based on the May 2, 1989 application, as stated in his decision. The letter states that ultimately Judge Werner found that a reassessment of Plaintiff's mental impairments was appropriate; since Plaintiff did not request a review of her prior decisions within the appropriate time frame following the enactment of DBRA legislation, Plaintiff's prior decisions are not reopenable; appropriate payment was made based on Plaintiff's May 2, 1989 application; and the decision dated June 29, 1990 stands as is.
The Disability Benefits Reform Act (DBRA) was enacted on September 18, 1984. A request under DBRA must be filed within one year of DBRA's enactment.
On March 30, 2001, Plaintiff wrote the Appeals Council requesting that the Hearing Decision, dated June 29, 1990 be enforced and additional benefits be awarded effective September 1983, pursuant to the application filed September 6, 1984. The letter states that Plaintiff had a claim pending during the year following enactment of the DBRA, such SSI claim included benefits payable under both Title II and Title XVI, and it would be contrary to the Law and Regulations and against equity and good conscience not to deem the pending claim as a request for review under the DBRA. The Favorable Decision on the SSI application filed September 6, 1984 occurred shortly after the passage of the DBRA. This allowance was at the initial level and the Kansas Disability Determination Service did not recognize the applicability of the DBRA in this case when the favorable Title XVI decision was made. Plaintiff requested that the June 29, 1990 decision be revised and that the application filed September 6, 1984 be reopened with benefits awarded effective September, 1983.
Plaintiff requested Appeals Council review on April 3, 2001, stating that: "The Hearing Decision by ALJ Werner details the facts of this case clearly. The Statements in the body of the hearing decision establishes: that a claim for SSI benefits was pending on 9/18/84, the date of the passage of the `Disability Benefits Reform Act (DBRA); that ALJ Werner found the claimant disabled as of March 2, 1978; that ALJ Werner found that the claimant made no request under DBRA during the period 9/18/84 to 9/17/85 (did not consider the scope of the SSI application filed 9/6/84). This is an error on the face of the record and a violation of the claimant's Fifth Amendment Rights by failing to reopen the 9/6/84 claim."
On June 5, 2001, the Appeals Council advised Plaintiff's attorney that the Administrative Law Judge, by declining to take further action, effectively denied the request by Plaintiff for reopening of the June 29, 1990 decision. A denial of a request for reopening is not subject to the administrative review process; therefore, the Appeals Council has no jurisdiction to consider the issued raised in Plaintiff's correspondence of March 30, 2001.
On July 27, 2001, Plaintiff filed the instant action.
LAW:
Judicial review of final decisions on claims arising under Title II or Title XVI of the Act is provided for and limited by sections 205(g) and (h) of the Act.
(g) Judicial review
Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow. . . .
(h) Finality of Commissioner's decision
The findings and decision of the Commissioner of Social Security after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Commissioner of Social Security shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Commissioner of Social Security, or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter.
42 U.S.C. § 405(g) and (h).
The SSA's regulations provide that a denial of a request to reopen a determination or decision is not subject to judicial review. There is an exception if it is challenged on constitutional grounds and a "colorable constitutional claim" is presented. The constitutional claim "must have `some merit,' and not be `wholly insubstantial or frivolous.'" A substantiated allegation of a mental impairment that precludes a claimant from pursuing administrative remedies constitutes a colorable constitutional claim sufficient to invoke federal jurisdiction.
Under the Act, the authority to determine what constitutes a "final decision" ordinarily rests with the Commissioner of Social Security. Mathews v. Eldridge, 424 U.S. 319, 330 (1976). The Commissioner's regulations provide that a "final decision" which is subject to judicial review is available only when a claimant has received an "initial determination" and has pursued that determination through the administrative appellate process. 20 C.F.R. § 404.900(a). An "initial determination" is defined in the regulations as a determination made by the SSA about entitlement or continuing entitlement to benefits, or about any other matter discussed in section 404.902 that gives you a right to further review. 20 C.F.R. § 404.900(a)(1). The regulations list those administrative actions which are not "initial determinations," and specifically provide that the denial of a request to reopen a decision is not an "initial determination" and is not subject to judicial review. 20 C.F.R. § 404.903(l).
See Califano v. Sanders, 430 U.S. 99 (1977); Nelson v. Secretary of Health Human Servs., 927 F.2d 1109 (10th Cir. 1990).
Tucker v. Sullivan, 779 F. Supp. 1290, 1295 (D.Kan. 1991) (citing Koerpel v. Heckler, 797 F.2d 858, 863 (10th Cir. 1986)).
Id. at 1296 (citations omitted).
In Elchediak v. Heckler, the Eleventh Circuit held that the claimant's application was not barred by administrative res judicata, reasoning that "the very disability that forms all or part of the basis for which the claimant seeks benefits may deprive her of the ability to understand or act upon notice of available administrative procedures." The court found the following factors dispositive in concluding that plaintiff had stated a colorable constitutional claim: (1) the claimant suffers from a medically-documented mental illness that forms the basis of his disability claim; (2) he was unrepresented by counsel on his prior application; and (3) he cannot assert a new claim for benefits because he now lacks insured status.
750 F.2d 892, 894 (11th Cir. 1985) (citing Parker v. Califano, 644 F.2d 1199, 1203 (6th Cir. 1981)).
Id. at 895.
A claim of entitlement to social security benefits triggers the due process protections. "The fundamental requirement of due process is the opportunity to be heard `at a meaningful time and in a meaningful manner.'" When the issue is the denial of a claimant's claims, due process requires that the claimant be given "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." "The notice must be of such nature as reasonably to convey the required information." In terms of a social security case, courts have held that "the Secretary `has an affirmative obligation to avoid providing Social Security applicants with misleading information'" particularly when the applicant is not represented by counsel.
Mathews v. Eldridge, 424 U.S. 319, 332 (1976).
Id. at 333-35 (citations omitted) (noting that prior decisions hold "that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail").
Memphis Light, Gas and Water Div. v. Craft, 436 U.S. 1, 13 (1978) (quoting Mullane v. Central Hanover Bank Trust Co., 339 U.S. 306, 314 (1950)).
Mullane, 339 U.S. at 314; see also Butland v. Bowen, 673 F. Supp. 638, 641 (D.Mass. 1987) (applying above standards to a social security case alleging inadequate notice).
Butland, 673 F. Supp. at 642 (citation omitted).
The Court finds that Plaintiff has presented a colorable constitutional claim in this case: she suffers from a medically-documented mental illness that forms the basis of her disability claim; she was unrepresented by counsel; she cannot assert a new claim; and the June 29, 1990 decision, along with its Notice of Favorable Decision, are somewhat confusing. Therefore, this matter is subject to judicial review and the Court is denying the Defendant's motion to dismiss. However, the Court is not ruling on Plaintiff's request for mandamus relief. The parties need to brief the issue of whether a writ of mandamus is appropriate in this case, and if so, what is the proper form of relief that should be granted in this case.
IT IS THEREFORE ORDERED BY THE COURT that the Defendant's Motion to Dismiss (Doc. 13) shall be DENIED.
IT IS FURTHER ORDERED BY THE COURT that the parties shall file simultaneous briefs by October 11, 2002, regarding entitlement to a writ of mandamus and the appropriate relief in this case. The parties shall file simultaneous responses by November 1, 2002.
IT IS SO ORDERED.