Dolmat v. SSA

2004 DNH 040

• Court: District Court, D. New Hampshire
• Decided: March 8, 2004
• Docket: CV-03-365-M
• Status: Published

Opinion

Dolmat v . SSA CV-03-365-M 03/08/04 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Audrey Dolmat, Claimant

v. Civil N o . 03-365-M Opinion N o . 2004 DNH 040 Jo Anne B . Barnhart, Comissioner, Social Security Administration, Respondent

O R D E R

Invoking 42 U.S.C. § 405(g), claimant Audrey Dolmat seeks

judicial review of the Commissioner’s decision to dismiss her

application for Social Security disability insurance benefits.

The Commissioner moves to dismiss the complaint on grounds that

this court lacks subject matter jurisdiction because there is no

final agency decision subject to judicial review. Claimant

objects. For the reasons given below, the Commissioner’s motion

to dismiss is denied, but the matter is remanded for further

proceedings consistent with this opinion.

BACKGROUND

Claimant filed an application for disability insurance

benefits (the “1997 claim”) with an alleged onset date of May 1 , 1989. That claim was denied on April 1 7 , 1997. (Def.’s Mot. to

Dismiss Pl.’s Compl. (hereinafter “Mot. to Dismiss”), Ex. 1.)

That determination was affirmed on reconsideration. (See Mot. to

Dismiss, Ex. 2 (notice dated August 1 1 , 1997). Claimant, who was

acting pro se at the time, did not request a hearing pursuant to

20 C.F.R. § 404.933, and the adverse decision became final after

sixty days. On December 2 4 , 1998, the Commissioner denied

claimant’s request, made through counsel, to reopen the 1997

claim. (Mot. to Dismiss, Ex. 3.) By letter dated July 2 4 , 2000,

in response to a letter from claimant’s counsel, the Commissioner

reiterated her denial of the request to reopen the 1997 claim.

(Mot. to Dismiss, Ex. 4.) Claimant then filed an action in this

court (Civil N o . 01-402-JD) based on the 1997 claim (the “2001

action”). That action was subsequently dismissed by order dated

April 1 7 , 2002, on grounds that the court lacked subject matter

jurisdiction because claimant had failed to exhaust her

administrative remedies and had, as a result, never obtained an

appealable final decision from the Commissioner, as required by

42 U.S.C. § 405(g). (Mot. to Dismiss, Ex. 5.)

2 Claimant has been represented by counsel with regard to this

claim since at least December 1998. (Mot. to Dismiss, Ex. 3.)

On March 5 , 2002, claimant filed a second application for

disability benefits alleging the same May 1 , 1989, onset date

(the “2002 claim”). (Mot. to Dismiss, Ex. 5.) By notice dated

March 1 0 , 2002, the 2002 claim was disapproved, on grounds of res

judicata, because it “concern[ed] the same issues which were

decided when an earlier claim was denied.” (Mot. to Dismiss,

Ex. 6.) That disapproval was upheld on reconsideration, in a

ruling dated April 2 , 2002. (Mot. to Dismiss, Ex. 7.) Claimant

then requested a hearing before an Administrative Law Judge

(“ALJ”).

Construing the 2002 claim as “an implied request to reopen

all prior . . . decisions,” the ALJ held a preliminary hearing on

September 4 , 2002. (Mot. to Dismiss, Ex. 8.) The ALJ first

determined that the 1997 claim could not be reopened because

there was no showing of fraud or similar fault - conditions

necessary to support a request to reopen a claim more than four

years after the initial determination. (Mot. to Dismiss, Ex. 8.)

He then dismissed claimant’s request for a hearing, based on the

3 doctrine of res judicata, pointing out that the 2002 claim

involved the same party, same operative facts, and same issues as

the final and binding reconsideration determination dated August

1 1 , 1997. (Mot. to Dismiss, Ex. 8.) On April 2 8 , 2003, claimant

filed a request for review of the ALJ’s order with the Appeals

Council (Mot. to Dismiss, Ex. 9 ) , which was denied on July 1 1 ,

2003. (Mot. to Dismiss, Ex. 10.) This suit seeks judicial

review of the Commissioner’s latest decision.

DISCUSSION

The Commissioner contends that this court lacks subject

matter jurisdiction for two reasons. First, she argues that

there was no “final decision . . . made after a hearing,”

regarding the 2002 claim because the September 4 , 2002, hearing

did not reach the merits of the 2002 claim, but, rather,

addressed the preliminary issue of whether claimant was entitled

to have the 1997 claim reopened. Second, the Commissioner argues

that the administrative decision not to reopen the 1997 claim was

discretionary, and not subject to judicial review.

4 In response, claimant asserts that she did not exhaust her

administrative remedies in 1997 because of the very disability

underlying her claim, her mental condition, and because she was

not represented by counsel, who would have taken the proper steps

not withstanding her own inability to do s o . She further asserts

a constitutional due process right to pursue the 1997 claim, even

at this late date, given that her disability prevented her from

following the proper procedures earlier. In addition, claimant

argues that the Commissioner failed to follow her own policies

and regulations, specifically Social Security Ruling (“SSR”) 91-

5 p , concerning good cause for missing a deadline to request

review. As well, she contends that the ALJ’s September 4 , 2002,

hearing - at which he considered reopening the 1997 claim - was a

de facto reopening of that claim which bars the Commissioner from

now invoking res judicata.

Section 205(g) of the Social Security Act, 42 U.S.C. § 405,

provides the sole means for judicial review of Social Security

Administration decisions. See 42 U.S.C. § 405(h). The judicial

review provision provides, in pertinent part, that “[a]ny

individual, after any final decision of the Commissioner of

5 Social Security made after a hearing to which he was a party

. . . may obtain [judicial] review of such decision.” 42 U.S.C.

§ 405(g) (emphasis added). The Commissioner has the

responsibility to “flesh out by regulation” the meaning of the

term “final decision” under the statute. Weinberger v . Salfi,

422 U.S. 749, 766 (1975). Under the relevant regulations, a

decision is final only if the claimant properly completed the

administrative review process within the time provided in the

regulations. 20 C.F.R. § 404.900(a)(5). Because claimant did

not exhaust her administrative remedies, the denial of her 1997

claim was not a final agency decision under the regulations.

Dolmat v . Barnhart, N o . 01-402-JD, slip o p . at 2 (D.N.H. Apr. 1 7 ,

2002).

Even if a claimant fails to request review within the time

frame established by the regulations, she may request that the

claim be reopened. 20 C.F.R. § 404.987(a). A claim may be

reopened for any reason within one year of the initial

determination or within four years of the initial determination

for good cause. 20 C.F.R. §§ 404.988(a) and ( b ) . Good cause

will be found if the claimant furnishes new and material

6 evidence, among other reasons. 20 C.F.R. § 404.989(a). A claim

may be reopened at any time after the initial determination if

obtained by fraud or similar fault. 20 C.F.R. § 404.988(c)(1).

Ordinarily, a decision not to reopen a claim is within the

discretion of the Commissioner, and not subject to judicial

review. Califano v . Sanders, 430 U.S. 9 9 , 107-08 (1977); Colon

v . Sec’y HHS, 877 F.2d 1 4 8 , 152 (1st Cir. 1989). Where the

denial of a request to reopen is challenged on constitutional

grounds, however, the availability of judicial review is

presumed. Sanders, 430 U.S. at 109. “[A] claimant suffering

from mental illness raises a colorable constitutional claim when

he asserts that his mental illness precluded him from litigating

his claim because it prevented him from proceeding from one

administrative level to another in a timely fashion.” Elchediak

v . Heckler, 750 F.2d 8 9 2 , 894 (11th Cir. 1985) (citing Penner v .

Schweiker, 701 F.2d 256, 260-61 (3rd Cir. 1983); Parker v .

Califano, 644 F.2d 1199, 1201-03 (6th Cir. 1981); Brittingham v .

Schweiker, 558 F. Supp. 6 0 , 61 (E.D. P a . 1983); Kapp v .

Schweiker, 556 F. Supp. 1 6 , 20-21 (N.D. Cal. 1981)).

7 Absent such a colorable constitutional claim, a district

court lacks jurisdiction to review the Commissioner’s decision

not to reopen an earlier determination. Torres v . Sec’y. of HHS,

845 F.2d 1136, 1138 (1st Cir. 1988) (citations omitted). When

the court has jurisdiction, however, it “shall have power to

enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the

cause for a rehearing.” 42 U.S.C. § 405(g).

Here, claimant asserts that her failure to make a timely

request for a hearing before an ALJ following the denial of her

1997 claim at the reconsideration stage should be excused on due

process grounds. Specifically, she alleges that she suffered

from severe depression, agoraphobia, and bipolar disorder, such

that she could neither understand nor cope with the

administrative appeals process, and was not represented by

counsel. Claimant has submitted medical opinions that tend to

support her assertions, at least in a general way, and it is

undisputed that she was not represented by counsel at that time.

Because claimant presents a “colorable constitutional claim,”

8 this court does have jurisdiction to review the Commissioner’s

decision, in 2002, not to reopen the 1997 claim.

In 2002, the ALJ properly construed claimant’s new claim

based upon the same operative facts underlying the 1997 claim as

a request to reopen her 1997 claim. Because she did not present

any new or material evidence to support her request, the ALJ

correctly determined that she failed to meet the regulatory

requirements for reopening. (The ALJ decision also clearly shows

that he did not overlook SSR 91-5p, notwithstanding claimant’s

assertion to the contrary.) It appears, however, that reopening

the 1997 claim is not the relief that claimant should have been

seeking, nor is it clear that SSR 91-5p applies to a request for

reopening. SSR 91-5p authorizes the Commissioner to consider

several different factors, including a claimant’s mental state,

when responding to requests to extend the sixty-day deadline for

“request[ing] reconsideration, [a] hearing before an

administrative law judge (ALJ), review by the Appeals Council, or

review by a Federal District Court.” 1991 WL 208607 (S.S.A.) at

*1.

9 It seems apparent, then, that when claimant retained

counsel, presumably some time in 1998, counsel should have

requested an extension of the time in which to request a hearing

before an ALJ. When good cause exists for such an extension, as

defined in SSR 91-5p, an extension should be granted regardless

of the time limits set out in the regulation governing reopening

a claim. See 1991 WL 20867, at * 2 .

Rather than seeking an extension of the time in which to

request a hearing, it appears claimant asked to reopen the 1997

claim. While the record does not include a copy of claimant’s

request to reopen, SSA’s response to that request (Mot. to

Dismiss, Ex. 3 ) suggests that claimant probably did not invoke

her alleged mental disabilities as grounds for reopening her

claim. Thus, the Commissioner had no choice but to respond to

claimant’s request in accordance with the standards applicable to

reopening. Similarly, in Civ. N o . 01-402-JD, the court

necessarily ruled only on the claim before i t , which seems to

have been an appeal from the Commissioner’s decision not to

reopen the 1997 claim.1 Finally, the ALJ’s decision on the 2002

1 As with the 1998 request to reopen, the record does not include the original complaint, but only the court’s order on the

10 claim does refer to SSR 91-5p, which reference suggests that

claimant finally raised the issue of her 1997 mental condition.2

Because a claimant’s mental condition may qualify as good cause

for extending the various sixty-day deadlines, but has no bearing

on whether good cause exists to reopen a claim, the ALJ was under

no obligation to address SSR 91-5p in the context of ruling on

claimant’s request to reopen the 1997 claim.

Claimant has not, it seems from this record, asked the

Commissioner to extend the deadline for filing a request for an

ALJ hearing on her 1997 claim. Consequently, the Commissioner

has not decided whether claimant’s 1997 mental condition

constitutes good cause for extending that deadline. In light of

Commissioner’s motion to dismiss, which does not mention claimant’s mental state. 2 The ALJ’s determination that claimant was not prejudiced by her mental condition and lack of counsel, because the window for requesting reopening for good cause had not yet closed, is not correct. As a general matter, good cause to reopen routinely takes the form of newly discovered evidence, but here, claimant’s problem is not that she uncovered new evidence, but, rather, that the combination of her mental disabilities and lack of counsel prevented her from obtaining a hearing and presenting evidence of her disability to an ALJ. Thus, the available relief of a good cause reopening at the time claimant retained counsel would not necessarily have gotten her what she arguably had a right to - ALJ review of the Commissioner’s adverse decision on reconsideration of her 1997 claim.

11 the constitutionally protected interest at stake here, see

Elchediak, 750 F.2d at 8 9 4 , and Congress’s intent to protect

Social Security claimants, see Canales v . Sullivan, 936 F.2d 755,

758 (2nd Cir. 1991) (citation omitted), the best and most

equitable result in this case would be a remand to the ALJ with

instructions to determine whether, under the provisions of

SSR 91-5p, claimant should be granted an extension of the sixty-

day deadline in which to seek a hearing and review by an

Administrative Law Judge of the Commissioner’s denial, on

reconsideration, of the 1997 claim.

CONCLUSION

The Commissioner’s Motion to Dismiss Claimant’s Complaint

(document n o . 5 ) is denied, and the matter is hereby remanded for

SO ORDERED.

Steven J. McAuliffe United States District Judge

March 8 , 2004

cc: David L . Broderick, Esq. Karen B . Nesbitt, Esq.