Opinion
CA 00-0622-P-C
January 17, 2001
REPORT AND RECOMMENDATION
This cause is before the Magistrate Judge for entry of a report and recommendation, pursuant to 28 U.S.C. § 636 (b)(1)(B), on the defendant's motion to dismiss (Doc. 9; see also Doc. 12) and plaintiffs objection to the motion to dismiss (Doc. 11). Upon consideration of the foregoing documents and the oral arguments of the parties on January 11, 2001, it is determined that the motion to dismiss is due to be granted on the basis that this Court lacks subject matter jurisdiction and plaintiff raises no colorable constitutional claim.
FINDINGS OF FACT
1. Jones filed his first application seeking an award of disability insurance benefits on April 11, 1989. (Doc. 9, Declaration of William R. Waxman, Exhibit 2, LIST OF EXHIBITS) He filed a second application for benefits on September 10, 1992. ( Id.)
2. Jones third application for disability insurance benefits, which alleged an onset date of May 25, 1992, was filed on or about June 15, 1993. (Doc. 9, Waxman Declaration, Exhibit 1) This application was denied initially and on reconsideration. ( Id., Exhibit 2, LIST OF EXHIBITS) Jones timely requested a hearing. ( Id.) "The claimant appeared and testified at a hearing held on May 23, 1995, and was represented by Brenda L. Vann, an attorney. James Cowart also appeared and testified as an impartial vocational expert." (Exhibit 2, DECISION) In his August 16, 1995 decision, Administrative Law Judge Glay E. Maggard found that though Jones "met the disability insured status requirements of the Act on December 5, 1992, and continued to meet them through March 31, 1994[,]" he was not entitled to benefits because he was capable of performing a significant number of light jobs which existed in the national economy. ( Id., at 6 7, Findings 1 11-13 (footnote added))
The ALJ used the December 5, 1992 date, rather than the claimed onset date of May 25, 1992, based upon the following analysis:
The claimant previously filed for a period of disability and disability insurance benefits on April 11, 1989. That claim was denied on June 7, 1989, and the claimant did not appeal further. The determination of June 7, 1989, remained final and binding. The claimant filed again on September 10, 1992, and that claim was denied initially on December 4, 1992. The claimant did not appeal further and that determination became the final decision of the Secretary with respect to the September 10, 1992, application. In his current application, the claimant has alleged that he became disabled on May 25, 1992, which is an implied request to reopen the prior final determination made with respect to the claimant's 1992 application. The Administrative Law Judge has considered all the evidence of record and finds that there is no new and material evidence or any other reason to reopen the December 4, 1992, final determination and it remains final and binding. The Administrative Law Judge dismisses the issue of disability relating to the period through December 4, 1992, under the doctrine of res judicata. Any discussion of evidence relating to this period is for historical purposes only and is not to be construed as a de facto reopening of the prior determination. The period under consideration at this time thus extends from December 5, 1992, through March 31, 1994.
( Id. at 2)
3. On June 7, 1996, the Appeals Council denied Jones' request for review of the ALJ's August 16, 1995 decision and "dismissal of a request for hearing[.]" (Doc. 9, Exhibit 3 to Waxman Declaration, ACTION OF APPEALS COUNCIL ON REQUEST FOR REVIEW)
The Appeals Council has concluded that there is no basis under the . . . regulations for granting your request for review of either the dismissal portion of the Administrative Law Judge's action or the decisional portion. In reaching this conclusion, the Appeals Council has considered the applicable statutes, regulations, and rulings in effect as of the date of this action.
The Appeals Council has also considered the contentions raised in your representative's letter dated May 27, 1995, but concluded that the contentions do not provide a basis for changing the Administrative Law Judge's decision.
Accordingly, the Administrative Law Judge's decision of August 16, 1995 stands as the final decision of the Commissioner of Social Security with respect to the issue of disability after December 4, 1992. The determination of December 4, 1992 stands as the final decision of the Commissioner with respect to the issue of disability through that date.
If you desire a court review of the Administrative Law Judge's decision concerning the issue of disability after December 4, 1992, you may commence a civil action by filing a complaint in the United States District Court for the judicial district in which you reside within sixty (60) days from the date of the receipt of this letter.
. . .
Inasmuch as the determination of December 4, 1992 is administratively final under the regulations ( 20 C.F.R. § 404.900 (b)), you are not entitled to court review of the issue of disability before that date.
( Id.)
4. Jones did not seek review of the June 7, 1996 decision of the Appeals Council. ( See Doc. 9, Exhibit 4 to Waxman Declaration) Instead, he filed his fourth application for disability insurance benefits on or about October 23, 1996, again alleging an onset date of May 27, 1992. ( See id.) "The claimant received a technical denial initially and on reconsideration and subsequently filed a timely request for hearing. After proper notice, a hearing was held in Monroeville, Alabama on November 21, 1997. The claimant appeared an[d] testified, being represented by Colin Kemmerly." (Doc. 9, Exhibit 6 to Waxman Declaration) The ALJ's January 28, 1998 decision regarding this fourth application reads, in pertinent part, as follows:
The issue presented is whether the claimant was disabled prior to the date his insured status expired and whether he has provided new and material evidence which would warrant reopening and revising the prior unfavorable decision or finding a later onset date of disability. Social Security Administrative Regulations No. 4 provide that, generally, if a claimant is dissatisfied with a determination or decision, but does not request further review within the stated time period, he loses the right to further review[,] 20 C.F.R. § 404.987.
However, sections 404.987 through 404.989 provide, in part, that a decision or determination which has become final and binding may be reopened within four years of the notice of the initial determination if there is good cause to do so. The regulations provide that good cause will be found where new and material evidence is furnished; there is clerical error in the computation or recomputation of benefits; or there is error on the face of the evidence on which such determination or decision [i]s based.
Social Security Regulation No. 4 further provides that an Administrative Law Judge may dismiss the claimant's request for hearing when the doctrine of res judicata applies. Res judicata occurs when the claimant has had a previous determination or decision about rights on the same facts and on the same issue or issues, and this previous determination or decision has become final by either administrative or judicial action[,] 20 C.F.R. § 404.957 (c)(1).
After carefully reviewing the evidence, and listening to the testimony, the Administrative Law Judge finds that there has been no clerical error nor error on the face of the evidence on which the decision dated August 16, 1995, was based. Further, the Administrative Law Judge concludes that the claimant has failed to provide new and material evidence which would warrant reopening and revising the prior favorable decision or finding a later onset date. The undersigned thus finds that the doctrine of res judicata applies in this case.
The record reveals that the claimant appeared and testified at a hearing held on November 21, 1997. The claimant had submitted one new document into the record of evidence already before the Administrative Law Judge. This new piece of evidence was from an unidentified chiropractor and did not provide any new insight into the claimant's disabling impairment. Nor did this piece of evidence provide any evidence of a condition which had not been considered in the previous decision. Therefore, the undersigned finds that, while this piece of evidence was new, it was not material and would not justify reopening and revising the prior decision. Thus, the claimant's current claim involves the same facts and issues which were decided in the previous final and binding decision and the claimant is not disabled within the meaning of the Social Security Act and regulations. This application should be and is dismissed.
FINDINGS
1. The evidence and testimony provided by the claimant did not reveal clerical error nor error on the face of the evidence on which the decision dated August 16, 1995, was based. Further, no new and material evidence was provide[d] by the claimant which would warrant the reopening and revising of the claimant's prior decision. 20 C.F.R. § 404.987 through 404.989.
2. The claimant's current application for benefits involves the same facts and issues which were decided in the final and binding decision dated August 16, 1995, made on the prior application and the doctrine of res judicata applies in this case.
3. This application is dismissed.
DECISION
It is the decision of the Administrative Law Judge that, based [o]n the application filed on October 25, 1996, the claimant is not entitled to a period of disability insurance benefits under sections 216(i) and 223, respectively, of the Social Security Act and the application is dismissed on the doctrine of res judicata.
( Id. at 1-3)
5. The Appeals Council denied plaintiffs request for review of the ALJ's decision. (Doc. 9, Exhibit 7 to Waxman Declaration)
The Appeals Council has concluded that there is no basis under the . . . regulations for granting your request for review. Accordingly, your request is denied and the Administrative Law Judge's decision stands as the final decision of the Commissioner of Social Security in your case. In reaching this conclusion, the Appeals Council has considered the applicable statutes, regulations, and rulings in effect as of the date of this action.
The Appeals Council has also considered the contentions raised in your representative's request for review dated February 13, 1998, as well as the additional evidence identified on the attached Order of the Appeals Council, but concluded that neither the contentions nor the additional evidence provides a basis for changing the Administrative Law Judge's decision. The Appeals Council also considered a psychological evaluation dated February 17, 1999, performed by Blaine C. Crum, Ph.D. The Administrative Law Judge found that you were not disabled on or before March 31, 1994, the date you last met the insured status requirements of the Social Security Act. The new evidence is not material to the issue of whether you were disabled at a time when you met the insured status requirements.
( Id. at 1-2)
6. Jones filed his complaint in this Court on July 7, 2000. (Doc. 1) The Commissioner filed a motion to dismiss on November 9, 2000 and contends therein that this Court lacks jurisdiction in this case on the basis of the doctrine of res judicata. (Doc. 9) In response to the motion to dismiss, plaintiff makes the following arguments: (1) this Court has jurisdiction because a final decision was issued by ALJ Joseph J. Micare on January 28, 1998 following a hearing held on November 21, 1997; and (2) plaintiffs present application for benefits, filed October 25, 1996, presents different facts and issues relating to his claim of disability from the facts and issues presented in his prior application for benefits and therefore, the doctrine of res judicata does not apply.
Plaintiff's counsel asserted a different issue during oral argument on January 11, 2001, contending that the ALJ failed in his obligation to fully and fairly develop the record regarding whether Jones had a mental impairment, more specifically, mental retardation. While the undersigned is of the opinion that the Court need not deal with this issue in depth, since it was not argued to the Appeals Council or initially to this Court ( see Doc. 11 (plaintiffs objection to the motion to dismiss)), it is noted that if plaintiff was to prevail on this argument the res judicata doctrine would have no viability because all counsel would have to do is produce new evidence post-hearing that has no relationship to the impairments plaintiff has listed in all applications for benefits and argue that the ALJ should have developed the record in this regard. Moreover, the undersigned regards this argument as nothing more than an extension of plaintiffs new facts and issues argument and therefore, it is rejected for the same reasons as that argument. In other words, it is clear that this Court has no jurisdiction to entertain this claim.
CONCLUSIONS OF LAW
1. The Commissioner's denial of a motion to reopen a prior final decision "is subject to judicial review only if the merits of the closed disability application are actually reexamined, . . ., or if the claimant presents a colorable constitutional claim." Hall v. Bowen, 840 F.2d 777, 778 (11th Cir. 1987) (citations omitted); see also Wolfe v. Chater, 86 F.3d 1072, 1078 (11th Cir. 1996) ("We have jurisdiction to review the Secretary's refusal to reopen a prior decision if (1) the claimant raises a colorable constitutional claim, or (2) the record demonstrates that there has been an actual reexamination of the merits of a prior administrative decision."); Sherrod v. Chater, 74 F.3d 243, 245 (11th Cir. 1996) ("[S]ubject matter jurisdiction will exist in those cases where `a social security claim is in fact reopened and reconsidered on the merits to any extent on the administrative level.' . . . Also, judicial review may be had where the claimant raises a colorable constitutional issue[.]"); Brown v. Sullivan, 921 F.2d 1233, 1237 (11th Cir. 1991) ("[W]e may not reopen the final denial of an application unless the Secretary has already reexamined the merits of the closed application, or if the claimant presents a colorable constitutional claim")[A]n interpretation that would allow a claimant judicial review simply by filing — and being denied — a petition to reopen his claim would frustrate the congressional purpose, plainly evidenced in § 205(g), to impose a 60-day limitation upon judicial review of the Secretary's final decision on the initial claim for benefits. 20 C.F.R. § 404.951 (1976). Congress' determination so to limit judicial review to the original decision denying benefits is a policy choice obviously designed to forestall repetitive or belated litigation of stale eligibility claims.Califano v. Sanders, 430 U.S. 99, 108, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977); Bloodsworth v. Heckler, 703 F.2d 1233, 1238 (11th Cir. 1983) (the "reopening of a case is an extraordinary measure, affording the opportunity of a second excursion through the decision-making process" and should be allowed only for specific and substantial reasons afforded in accordance with the Commissioner's regulations); see Passopulos v. Sullivan, 976 F.2d 642, 647 (11th Cir. 1992) ("[I]f this court extends the bonus remedial opportunity beyond its intended boundaries, the court runs the risk of forcing the [Commissioner] to repeal the reopening regulations entirely in order to avoid the burdensome intrusion on the finality of its decisions. We decline to initiate this chain of events which would ultimately result in social security claimants being denied this bonus opportunity.").
2. While a reconsideration on the merits to any extent constitutes a de facto reopening, Cherry v. Heckler, 760 F.2d 1186, 1189 (11th Cir. 1985), "the [Commissioner] must be allowed some leeway to evaluate the proffered evidence to determine whether to reopen the case." Hall, 840 F.2d at 778 (citation omitted); cf. Krumpelman v. Heckler, 767 F.2d 586, 589 (9th Cir. 1985) ("[W]here the discussion of the merits is followed by a specific conclusion that the claim is denied on res judicata grounds, the decision should not be interpreted as reopening the claim and is therefore not reviewable"), cert. denied sub nom. Krumpleman v. Bowen, 475 U.S. 1025, 106 S.Ct. 1222, 89 L.Ed.2d 332 (1986).
3. It is clear on the face of the ALJ's January 28, 1998 decision that there was no reopening of any of plaintiffs prior applications for disability insurance benefits, most particularly the August 28, 1995 decision, as nowhere in the ALJ's most recent decision is there a reexamination of the merits of any of those prior disability applications. See Malave v. Sullivan, 777 F. Supp. 247, 252 (S.D.N.Y. 1991) ("It is only where the [Commissioner] does not award preclusive effect to the earlier decision, and instead considers all the evidence and renders a decision on the merits, that the prior application is deemed to have been reopened").
4. The Magistrate Judge finds no significance in plaintiffs argument that the Commissioner's motion to dismiss should be denied since a final decision was issued by the ALJ in this case following a hearing. The fact that there was a final decision made after a hearing is of no help to the plaintiff because the final decision was to dismiss the application based on the doctrine of res judicata. See Sherrod, supra, 74 F.3d at 245 ("As a general matter, district courts do not have jurisdiction over the Secretary's refusal to reopen a claim since such a refusal is not a `final decision' within the meaning of section 405(g).").
Respondent contends that . . . the Social Security Act itself, specifically § 205(g), should be construed to authorize judicial review of a final decision of the Secretary not to reopen a claim of benefits. All Courts of Appeals that have considered this contention have rejected it. We also agree that § 205(g) cannot be read to authorize judicial review of alleged abuses of agency discretion in refusing to reopen claims for social security benefits.Califano, supra, 430 U.S. at 107-108, 97 S.Ct. at 985 (footnote omitted). In other words, whether a decision not to reopen is made following a hearing or not, the analysis for this Court remains the same and that is whether this case is subject to judicial review. See Latona v. Schweiker, 707 F.2d 79, 80 81 (2nd Cir. 1983) ("After a hearing (not required by the Act) a second ALJ found no `good cause' for reopening the Secretary's 1977 decision and rejected Latona's second application on grounds of administrative res judicata . . . . Latona contends that the Secretary's provision of a hearing brings his refusal to reopen his prior decision within the scope of section 205(g), which provides for judicial review of `any final decision of the Secretary made after a hearing . . . .' The literal interpretation of section 205(g) on which Latona's argument relies, however, was rejected by Sanders, which excluded from the scope of section 205(g) all decisions that were not required to be preceded by a hearing, whether or not they were in fact preceded by a hearing . . . . Indeed, the implication of Sanders is that section 205(g) applies only to hearings required by the Act, as distinguished from the regulations."); see also White v. Schweiker, 725 F.2d 91, 93 (10th Cir. 1984) ("All circuits that have considered the question after Sanders have held that a decision of the Social Security Administration (SSA) not to reopen is unreviewable, whether or not the SSA held a hearing on whether good cause for the late filing was shown."). Accordingly, the undersigned finds no merit to plaintiffs argument in this regard.
5. Plaintiffs only other argument is that the doctrine of res judicata does not apply in this case because his October 25, 1996 application for benefits, which resulted in the ALJ's January 28, 1998 dismissal decision, presents different facts and issues relating to his claim of disability from the facts and issues presented in his prior application(s) for benefits. More specifically, it is plaintiffs argument that the new issue raised in connection with his most recent application is that he suffers from a lifelong mental impairment, namely mild mental retardation, that affects his ability to read and write and perform work. Clearly, the substance of plaintiffs argument in this regard is that there existed "good cause" for reopening his prior application(s) since new evidence was provided in conjunction with the October 26, 1996 application.
6. This Court lacks jurisdiction to entertain plaintiffs new facts and issues argument since judicial review is limited to those cases where the refusal to reopen is challenged on constitutional grounds and plaintiff makes no such challenge here. "It is not [the role of the courts] to determine whether the [Commissioner] had good cause for reopening, for in that respect his decision is not judicially reviewable." Coup v. Heckler, 834 F.2d 313, 317 (3d Cir. 1987); see Burks-Marshall v. Shalala, 7 F.3d 1346, 1349 (8th Cir. 1993) ("Since the Secretary refused to reopen the 1981 and 1982 cases, the District Court lacked jurisdiction to order such an action, even if it appeared, on the face of the evidence, that the refusal was in error."); Krumpelman, supra, 767 F.2d at 588 ("District courts . . . have no jurisdiction to review a refusal to re-open a claim for disability benefits or a determination that such a claim is res judicata."); Cherry, supra, 760 F.2d at 1189 ("The decision not to reopen a previous application is not subject to judicial review `unless that refusal is challenged on constitutional grounds.'"). In other words, "§ 205(g) cannot be read to authorize judicial review of alleged abuses of agency discretion in refusing to reopen claims for social security benefits." Califano v. Sanders, 430 U.S. at 107-108, 97 S.Ct. at 985. Accordingly, this Court lacks jurisdiction to review plaintiffs new facts and issues claim.
7. As alluded to several times, supra, plaintiff does not challenge the Commissioner's denial of the petition to reopen on constitutional grounds. See Califano, 430 U.S. at 109, 97 S.Ct. at 986 ("This is not one of those rare instances where the [Commissioner's] denial of a petition to reopen is challenged on constitutional grounds."). Clearly, therefore, "§ 205(g) does not afford subject-matter jurisdiction in this case." Id.
CONCLUSION
The Magistrate Judge is of the opinion that this Court is without § 405(g) jurisdiction to review the Commissioner's denial of Jones' petition to reopen his prior benefits claims and therefore, recommends that this cause be dismissed pursuant to Rule 12(h)(3) of the Federal Rules of Civil Procedure.
The attached sheet contains important information regarding objections to the report and recommendation of the Magistrate Judge.