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finding it unnecessary to consider retrospective evidence where a plaintiff was under medical care during the relevant time period and "the only question in determining disability was the severity of her impairment, which was adequately documented by contemporaneous medical assessments and lay evidence"
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02 Civ. 8875 (SAS), 89868
November 24, 2003
Josephine Gottesman, Esq., New York, NY, for Plaintiff
Susan D. Baird, New York, NY, for Defendant
OPINION AND ORDER
Christine Stellacci seeks review of a decision by the Commissioner of the Social Security Administration (the "Commissioner") denying her request to re-open a prior application for benefits and dismissing her current application under the doctrine of res judicata. Defendant moves to dismiss the complaint under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff opposes that motion and cross-moves for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure.
I. BACKGROUND
A. Procedural Background
Plaintiff first applied for social security disability insurance benefits ("DIB") on June 9, 1993. See 12/1/99 Decision of Administrative Law Judge ("ALJ) Jane Polisar ("Decision"), Transcript of Administrative Record ("Tr.") at 12. Her claim was denied approximately one month later and she did not request reconsideration of that claim in a timely manner. See id. On May 23, 1995, plaintiff submitted a second application for DIB along with a claim for social security income ("SSI") disability payments. See id. Again, plaintiff's claim was denied after a determination was made that any impairments she had were not disabling. See id. Plaintiff received a notice dated October 26, 1995, advising her of the procedures to request reconsideration but she did not make a timely request. See id.
The transcript of the administrative record was filed as part of defendant's answer pursuant to 42 U.S.C. § 405 (g).
Under the rules, plaintiff had sixty days, until December 26, 1995, in which to seek reconsideration.
Plaintiff submitted her current application for SSI benefits on March 28, 1997. See id. Her claim was denied initially and on reconsideration, and she filed a timely request for a hearing before an ALJ. See id. at 13. At the first hearing before the ALJ on May 10, 1999, plaintiff was unable to appear but was represented by counsel, Josephine Gottesman. See id. Gottesman was advised that although plaintiff had not reapplied for disability benefits she could file an application and it would be escalated to the hearing level so that both applications could be heard together. See id. An application for disability benefits was filed on May 20, 1999, but was designated with a filing date of March 28, 1997. See id On October 27, 1999, plaintiff wrote a letter requesting that the 1995 application for disability benefits be re-opened on a finding of good cause. See id.
Plaintiff's disability arises from the cumulative effects of her various medical conditions, primarily diabetes and related ailments.
On October 28, 1999, plaintiff appeared and testified before the ALJ.See id. On December 1, 1999, the ALJ denied the request to re-open the 1995 DIB application; denied the 1997 DIB application based on res judicata, but granted the SSI application after finding that plaintiff "has been under a `disability' . . . since March 28, 1997." Id. at 15, 20.
B. Factual Background
At the time of her testimony at the second 1999 hearing, plaintiff was 53 years old and had not worked since 1990. See id. at 12; Tr. at 34 (Testimony of Christine Stellaci). She was fired from her last job because she refused to relinquish scheduled vacation time. See id. at 34. She did not seek new work for some time after that because she was ill and taking care of her father. See id. When she did seek work, she experienced symptoms such as dizziness and cold sweats that prevented her from securing employment. See id. at 36. Plaintiff was diagnosed with diabetes in 1980 and has been on insulin and other medications since that time with frequent dosage adjustments. See id. at 35-37. She has suffered from arthritis for many years, and testified that it began seriously affecting her in about 1985, at which time she also developed myopathy.See id. at 43-44. She was hospitalized several times between 1990 and 1993 for diabetes, gallbladder removal, and complications resulting from a 1970 removal of an ovary. See id. at 44-46. Plaintiff claims she experiences painful sciatica when sitting for more than 20 or 30 minutes. See id. at 49. Walking has become increasingly difficult over time, and she began to experience sleeping difficulties in 1991. See id. at 50-52.
The administrative record does not contain medical records prior to 1996. In 1996, a doctor indicated that plaintiff suffered from "insulin dependent diabetes mellitus, insulin resistant pericholesteremia[, and] [h]ypertriglyceridemia secondary to hyperglycemia." See 9/26/96 Consultation with Lawrence Neshiwat, M.D., St. John's Riverside Hospital, Tr. at 254. In 1996, plaintiff's personal physician noted in a letter that she was "essentially homebound" due to "uncontrolled diabetes mellitus, diabetic neuropathy with nephrotic proteinura and peripheral neuropathy." See 10/16/96 Letter from S. Zafar H. Naqvi, M.D., Tr. at 242.
Plaintiff claims that her disability and the medications she was taking at the time her 1995 application was denied prevented her from requesting a reconsideration. See, Tr. at 59-62 (Testimony of Christine Stellaci). She claims that she went to the courthouse in Mahopac, New York to speak to a Social Security Administration ("SSA") representative and was told that "they don't do appeals in there," and that she would have to travel to Manhattan to pursue an appeal. See id. at 59-60. She claims that she called the toll-free SSA number and was promised papers to request an appeal by mail, but never received them. See id. at 60. After moving to the Bronx, she went to the nearest SSA office and talked to a man who took her information. See id. She believed that he was filing an appeal on her behalf but it was, in fact, a new application. See id. at 60-61. There is no evidence in the record of any new application filed in 1995, or any new application between the time her 1995 claim was denied and the time she filed the instant application in 1997. Plaintiff testified that "at that time I was on all kinds of . . . much more medication than I'm on right now, and my mind wasn't clear" and that she did not know how to file an appeal but made efforts to do so.See id. at 62.
II. DISCUSSION
A. Standard of Review
When reviewing a decision by the Commissioner, a court may enter a "judgment affirming, modifying, or reversing the decision of the Commissioner, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). When reviewing a decision denying benefits under the Social Security Act, the Commissioner's factual determinations must be regarded as conclusive unless they are not supported by substantial evidence. See id.; see also Aubeuf v. Schweiker, 649 F.2d 107, 112 (2d Cir. 1981). Substantial evidence is defined as "`more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept to support a conclusion.'"Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotingConsolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Furthermore, when reviewing the record for substantial evidence, the record should be viewed as a whole. See State of New York v. Secretary of Health and Human Servs., 903 F.2d 122, 126 (2d Cir. 1990) (citation omitted). "This means that in assessing whether the evidence supporting the [Commissioner's] position is substantial, [a court] will not look at that evidence in isolation but rather will view it in light of other evidence that detracts from it." Id.
Because the Commissioner's factual determinations must be regarded as conclusive, factual issues need not have been resolved in accordance with what a reviewing court conceives to be the preponderance of the evidence.See Rutherford v. S chweiker, 685 F.2d 60, 62 (2d Cir. 1983). Where there is substantial evidence to support more than one position, the determination of which position to take is to be made by the Commissioner. See, e.g., Schisler v. Bowen, 851 F.2d 43, 47, (2d Cir. 1988). In short, the district court is not to decide Social Security casesde novo. See Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980).
B. ALJ's Denial of Request to Re-open 1995 Application
1. Subject Matter Jurisdiction
Defendant argues that this Court lacks subject matter jurisdiction to review the ALJ's decision not to re-open the 1995 DIB application. A district court may review "any final decision of the Commissioner of Social Security made after a hearing." 42 U.S.C. § 405(g). However, the Supreme Court has held that denial of a request to re-open a determination is not a "final decision" within the meaning of the statute. See Califano v. Sanders, 430 U.S. 99, 108 (1977); 20 C.F.R. § 404.903(1), 416.1403(a)(5). Because a hearing is not required by statute, judicial review of a denial to re-open is foreclosed even when there has been a hearing. See Sanders, 430 U.S. at 108; Latona v. Schweiker, 707 F.2d 79, 81 (2d Cir. 1983) ("Sanders . . . 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"). In the absence of a colorable. constitutional claim, there is no subject matter jurisdiction to consider plaintiff's claims. Plaintiff argues that the ALJ's decision refusing to re-open the 1995 application is a violation of due process. She claims her failure to appeal should have been excused, and the ALJ's refusal to permit her to re-open has denied her a meaningful opportunity to be heard.
2. Violation of Due Process
Plaintiff claims that her constitutional right to due process was denied in two different ways: first, that she was mentally incapable of pursuing her administrative remedies; and second, that the SSA led her to believe that she had successfully filed an appeal when in reality she had filed a new application.
Plaintiff argues that her mental incapacity at the time her 1995 application was denied prevented her from pursuing her administrative remedies. Constitutional challenges on the basis of mental incompetence have succeeded on a theory that notice is defective if the recipient is incapable of understanding the administrative requirements for appeal.See Steiberger v. Apfel, 134 F.3d 37, 41 (2d Cir. 1997). However, "[a] claim of constitutionally defective notice, even in the context of a claim for disability benefits based on mental illness, cannot invoke federal court jurisdiction merely upon a generalized allegation, long after the fact, that the claimant was too confused to understand available administrative remedies." Id. In the absence of medical evidence or testimony that plaintiff suffered a psychological disorder severe enough to prevent her from understanding the notice of her right to appeal, there is no violation of due process. Plaintiff testified that she was taking various medications and was not thinking clearly, but she was not diagnosed with a mental illness. The fact that she made some attempt to initiate an appeal indicates that she understood the process and merely failed to complete the request in a timely manner.
Plaintiff bases her second due process argument on her visit to the Bronx SSA office. She testified that she showed the clerk at the office her denial form, explained that she wanted to appeal, and gave him information. See Tr. at 60 (Testimony of Christine Stellaci). Though she believed she had successfully requested reconsideration, she "got a new case." See id. at 61. Plaintiff argues that the Bronx SSA clerk filed a new application as a substitute for appeal, and that this action violated her right to due process.
Some courts have found a due process violation where the SSA represented in the "Explanation of Rights" portion of the Notice of Determination that a new application is the equivalent of an appeal.See Day v. Shalala, 23 F.3d 1052 (6th Cir. 1994); Gonzalez v. Sullivan, 914 F.2d 1197 (9th Cir. 1990); Rooney v. Shalala, 879 F. Supp. 252, 257 (E.D.N.Y. 1995). That did not happen in this case. Here, plaintiff received written notice of the difference between filing a new application and filing an appeal, as well as notice of the procedures for filing an appeal.
The Notice reads:
You have the right to file a new application at any time, but filing a new application is not the same as appealing this decision. If you disagree with this decision and you file a new application instead of appealing
— you might lose some benefits, or not qualify for any benefits, and
— we could deny the new application using this decision, if the facts and issues are the same.See 10/26/95 Notice, Tr. at 98.
Furthermore, the record supports an inference that plaintiff did not visit the Bronx office until after the December 26, 1995, filing deadline. Plaintiff moved to the Bronx in May of 1996. Presumably, the 1997 application is the application plaintiff was issued by the Bronx SSA clerk when she tried to appeal. That application, dated March 28, 1997, was filed long after the deadline to appeal had expired. The clerk in the Bronx SSA office acted correctly when he completed a new application on plaintiff's behalf as the deadline for reconsideration of her 1995 application had expired on December 26, 1995.
Plaintiff testified that she moved to the Bronx in late 1994 or early 1995. See Tr. at 49. However, she testified later that she moved shortly after receiving the Notice of Determination dated October 26, 1995. See id. at 60. She also testified that she looked for work in Mahopac as late as-i-996. See id. at 37. Plaintiff's 1997 application indicates that she began living at her current residence in the Bronx on May 1, 1996. See 3/28/97 Application for Social Security Income, Tr. at 116. The most reasonable interpretation of this conflicting evidence is that plaintiff was mistaken as to the dates she provided in her testimony and that she moved to the Bronx in May of 1996.
Plaintiff points out that the 1997 SSI application information "was taken by a claims representative [and] . . . was not a paper application completed by plaintiff" to show that the Bronx SSA clerk mistakenly filed a new application on her behalf. See Plaintiff's Memorandum of Law in Reply to Defendant's Opposition to Plaintiff's Cross-motion for Judgment on the Pleadings and in Further Support of the Cross-motion at 2.
There was no violation of plaintiff's right to due process: she was not mentally unable to follow the administrative procedures; she was notified of the consequences of filing a new application instead of an appeal; and in any case there is no evidence supporting her claim that the Bronx SSA office clerk erred in filing a new application on her behalf. Because there is no colorable constitutional claim, this Court has no jurisdiction to review the ALJ's decision.
3. Constructive Re-opening of Prior Applications
Plaintiff claims that by requesting and reviewing her 1993 and 1995 applications, the ALJ constructively re-opened those applications. The cases she cites in support of this proposition are inapposite or even contrary to her position. Constructive re-opening has been found where the ALJ reconsidered the prior claim on the merits. See Ma lave v. Sullivan, 777 F. Supp. 247, 251 (S.D.N.Y. 1991); Guy v. Sullivan, 736 F. Supp. 1255, 1258-59 (W.D.N.Y. 1990). However, review of a previously denied application "may be necessary to determine whether there is `good cause' to re-open." Girard v. Chater, 918 F. Supp. 42, 45 (D.R.I. 1996). Similarly, a judge does not constructively re-open an application when she reviews it "in order to determine whether the second claim is the `same' as the first claim for res judicata purposes." Id. The ALJ reviewed the 1993 and 1995 applications for the limited purpose of determining whether there was new and material evidence that amounted to good cause to reopen those applications and to determine whether res judicata was appropriate for the 1997 claim. Thus, there was no constructive re-opening of either the 1993 or 1995 application.
C. ALJ's Application of Administrative Res Judicata to Plaintiff's 1997 DIB Application
Plaintiff argues that res judicata should not have prevented the ALJ from making a final determination on the merits of her 1997 DIB application. She claims that she presented new and material evidence that distinguished the 1997 application from the 1993 or 1995 applications, and that the 1997 application is more complete because she is now represented by an attorney. She also argues that she has been denied a full and fair adjudication of her claims because the 1995 application was denied without a hearing.
1. Jurisdiction
Defendant argues that this Court has no jurisdiction to review the decision of the ALJ applying administrative res judicata to plaintiff's 1997 DIB application. If res judicata was properly applied, there is no jurisdiction to review the denial of benefits. However, "jurisdiction exists to determine whether the ALJ properly invoked administrative res judicata."Amato v. Bowen, 739 F. Supp. 108, 111 (E.D.N.Y. 1990); see also McGowen v. Harris, 666 F.2d 60, 66 (4th Cir. 1981).
2. Application of Res Judicata
In administrative law settings,
[t]he doctrine of res judicata applies in that we have made a previous determination or decision under this subpart about your 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), 416.1457(c)(1). The application of administrative res judicata has been recognized and enforced by the Supreme Court, and the Second Circuit has deemed it appropriate in Social Security cases. See United States v. Utah Constr. Mining Co., 384 U.S. 394, 422 (1966); Thompson v. Richardson, 452 F.2d 911, 913 (2d Cir. 1971).
Although plaintiff claims that she has presented new and material evidence that distinguishes the 1997 application from the previous two applications, the ALJ correctly decided that there was nothing new or material indicating that plaintiff was disabled prior to her last insured date, December 31, 1994. Plaintiff argues that the diagnoses and evaluations by Dr. Naqvi and the hospital records from 1996 are relevant to determining the date of the onset of her disability. See Jones v. Chater, 65 F.3d 102, 103-04 (8th Cir. 1995) (finding retrospective diagnosis relevant to determining disability onset date where plaintiff suffered from post-traumatic stress disorder, which was not a recognized impairment at the date last insured). Some cases mandate consideration of retrospective diagnoses when there is no contemporaneous diagnosis.See, e.g., Basinger v. Heckler, 725 F.2d 1166 (8th Cir. 1984). Here, however, it is unnecessary to consider retrospective evidence because plaintiff was under medical care at the date she was last insured and had already been diagnosed with diabetes. The only question in determining disability was the severity of her impairment, which is adequately documented by contemporaneous medical assessments and lay evidence.
Plaintiff also argues that res judicata is inapplicable because the 1995 DIB application was not decided using the grid described in the Code of Federal Regulations (the "Grid"). See 20 C.F.R. Pt. 404, Subpt. P, App. 1. The Social Security Administration, Office of Hearings and Appeals, Litigation Law Manual ("HALLEX") provides that:
Res judicata is not applicable in the following situations: . . . 5. No prior determination or decision was ever made under the medical-vocational guidelines (grid regulations) that became effective February 26, 1979, and the prior denial was based on the ability to perform other than past relevant work.
HALLEX I-3-309(D). Plaintiff argues that the 1995 determination was not made using the Grid. She also argues that the denial of her 1995 application was based upon her ability to perform sedentary work, while her past relevant work was not sedentary. Therefore, plaintiff claims that there was no valid basis for applying res judicata.
The Grid "[consists] of a matrix of the four factors identified by Congress — physical ability, age, education, and work experience — and [sets] forth rules that identify whether jobs requiring specific combinations of these factors exist in significant numbers in the national economy." Heckler v. Campbell, 461 U.S. 458, 461-62 (1983). The Grid allows a finding of ability to do sedentary work even when prior experience was not sedentary, as long as the claimant's residual functional capacity, including education and experience, supports such a finding. See Campbell, 461 U.S. at 462. The Grid simplifies the decision-making process by providing an efficient guide to evaluating an application for benefits.
Plaintiff provides no support for her claim that the decision was not made under the Grid except the absence of the word "Grid" from her determination letter, nor can she show that she suffered prejudice from the determination as it is explained in the letter. While the 1995 Letter of Explanation denying DIB benefits does not specifically refer to the Grid, it indicates that the reviewers at the SSA considered all of the factors the Grid includes. See 10/19/95 Explanation of Determination, Tr. at 100. To require that a one-page form letter regarding an initial determination include explicit reference to the Grid would be to elevate form over substance. Because administrative res judicata was properly applied, this Court is without jurisdiction to review this claim.
The relevant text reads: "In deciding [that your condition is not disabling], we studied your records, including the medical evidence and your statements, and considered your age, education, training and work experience." 10/19/95 Explanation of Determination, Tr. at 100.
III. CONCLUSION
For the foregoing reasons, defendant's motion to dismiss is granted and the complaint is dismissed in its entirety. The Clerk of the Court is directed to close this case.
SO ORDERED;