Jenkerson v. SSA

2008 DNH 177

• Court: District Court, D. New Hampshire
• Decided: September 30, 2008
• Docket: CV-07-217-PB
• Status: Published

Opinion

Jenkerson v. SSA CV-07-217-PB 09/30/08

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard Jenkerson

v. Crvrl No. 07-cv-217-PB Opinion No. 2008 DNH 177 Michael J. Astrue, Commissioner Social Security Administration

MEMORANDUM AND ORDER

Richard Jenkerson filed a complaint seeking review of the

Commissioner's decision not to reopen the determinations denying

his previous applications for social security benefits. He

alleges that the decision not to reopen violated his Fifth

Amendment due process rights and that the Administrative Law

Judge ("ALJ") constructively reopened his applications and issued

a final decision on the merits. The Commissioner moves to

dismiss for lack of subject matter jurisdiction.

I. BACKGROUND

Jenkerson, proceeding pro se, filed applications for Social

Security disability benefits in April 1996 and November 1997,

which were denied by determinations issued on June 27, 1996 and

April 23, 1998, respectively. The notice sent with the June 27,

1996 determination informed Jenkerson that the Social Security Administration had determined that he was not entitled

to disability benefits but that he could appeal that decision.

The notice included a section on the right to appeal and a

section on obtaining help with an appeal. Jenkerson did not seek

reconsideration. Nor did he file an appeal.

On March 17, 2005, counsel filed a new application for

disability benefits on Jenkerson's behalf, asserting a disability

date of July 12, 1995, and seeking to reopen and revise the prior

determinations issued on June 27, 1996 and April 23, 1998. The

ALJ granted the new application for benefits, with a disability

onset date of May 1, 1998, and denied the reguest to reopen the

prior determinations. The ALJ concluded that Jenkerson failed to

show a basis for reopening under 20 C.F.R. § 404.988(c) and

failed to show good cause for extending the time to reguest

review based on mental incapacity as provided in Social Security

Ruling 91-5p ("SSR 91-5p"). Jenkerson reguested Appeals Council

Review, which was denied.

II. STANDARD OF REVIEW

A motion to dismiss for lack of subject matter jurisdiction

under Federal Rule of Civil Procedure 12(b) (1) is first evaluated

to determine whether the facts relevant to the jurisdictional

issue are intertwined with the merits of the plaintiff's claim.

2 Torres-Negron v. J & N Records, LLC, 504 F.3d 151, 163 (1st Cir.

2007). If facts material to the jurisdictional question are also

material to the merits of the cause of action, the court uses the

summary judgment standard for the motion to dismiss. Id. On the

other hand, if the jurisdictional issue does not depend on facts

that are intertwined with the merits of a claim, the court can

weigh the evidence to decide whether it has jurisdiction. Id.;

see also McCulloch v. Velez, 364 F.3d 1, 6-7 (1st Cir. 2004) .

III. DISCUSSION

The Commissioner contends that: (1) this court lacks subject

matter jurisdiction under 42 U.S.C. § 405(g) to consider

Jenkerson's request for review of the decision not to reopen the

determinations on his previous claims for benefits; (2) Jenkerson

lacks a colorable constitutional claim; and (3) no constructive

reopening occurred. Jenkerson acknowledges that the court lacks

jurisdiction to review a decision not to reopen on the merits but

argues that jurisdiction exists to consider his constitutional

challenges. He also argues that the ALJ constructively reopened

his prior applications by considering them on the merits.

Courts have jurisdiction to review only final social

security decisions. 42 U.S.C. § 405(g). A discretionary

decision not to reopen a prior determination is not a final

3 decision. Califano v. Sanders, 430 U.S. 99, 107-09 (1977);

Dudley v. Sec'v of Health & Human Servs., 816 F.2d 792, 795 (1st

Cir. 1987); Stewart v. Astrue, 532 F. Supp. 2d, 243, 245 (D.

Mass. 2008). An exception exists, however, if the claimant

challenges the decision on colorable constitutional grounds._

Califano, 430 U.S. at 109; Klemm v. Astrue, -- F.3d -- , 2008 WL

4210589, at *4 (9th Cir. Sept. 16, 2008).

A. Due Process Claims

Jenkerson asserts that the decision denying his application

to reopen violated his Fifth Amendment due process rights in two

respects. First, he contends that the notice he received, dated

June 27, 1996, denying his application filed in April of 1996,

did not adeguately inform him of the conseguences of failing to

seek reconsideration or appeal and instead led him to believe

that reapplication was an alternative to filing an appeal. His

second due process claim is that he lacked the mental capacity to

appeal and the ALJ failed to properly consider the reguirements

of SSR 91-5p. I address each argument in turn.

1. Notice

In support of his claim that the notice he received in 1996,

denying his application, was constitutionally deficient,

Jenkerson relies on Gonzalez v. Sullivan, 914 F.2d 1197, 1203

(9th Cir. 1990), which held that a denial notice was

4 constitutionally inadequate because it misleadingly equated

appeal with reapplication and failed to inform the applicant

about the appeal process. The defective notice stated: "If you

do not request reconsideration of your case within the prescribed

time period, you still have the right to file another application

at any time." Id.

A colorable constitutional claim need not be substantial to

support jurisdiction, "but the claim must have some possible

validity." Mehilli v. Gonzales, 433 F.3d 86, 94 (1st Cir. 2005) .

In the context of jurisdiction to review a Social Security

determination, "[a] constitutional claim is colorable if it is

not wholly insubstantial, immaterial, or frivolous." Klemm, 2008

WL 4210589, at *4 (internal quotation marks omitted). A

colorable due process claim, based on Gonzalez, must show that

the claimant received a deficient notice and that he

detrimentally relied on the notice. Stewart, 532 F. Supp. 2d at

246.

Because the jurisdictional standard, requiring a colorable

claim, is intertwined with the merits of Jenkerson's due process

claim, it is reviewed under the summary judgment standard. The

party seeking summary judgment must first demonstrate the absence

of a genuine issue of material fact in the record. See Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986) . A party opposing a

5 properly supported motion for summary judgment must present

competent evidence of record that shows a genuine issue for

trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256

(1986). All reasonable inferences and all credibility issues are

resolved in favor of the nonmoving party. See id. at 255.

Jenkerson submitted a copy of the June 27, 1996 notice to

support his claim. The 1996 notice, however, does not include

the language used in the notice found to be constitutionally

deficient in Gonzalez. In fact, the Social Security

Administration amended its notices in 1989 to remedy the

defective language found in Gonzalez. Stewart, 532 F. Supp. 2d

at 246. Notices dated after February of 1990 are presumed to be

constitutionally valid. Id. at 247.

Jenkerson has not identified what language in the 1996

notice he claims was constitutionally deficient. Nothing in the

notice eguates an appeal with reapplication, as was the case in

the previous version of the notice that was found to be

constitutionally deficient. Instead, the notice explains the

process for filing an appeal and explains that a claimant can get

help in filing an appeal.

As presented, the record does not show a factual dispute to

support Jenkerson's claim that he received a constitutionally

deficient notice. Therefore, Jenkerson provides no basis for his

6 claim that the 1996 notice violated his Fifth Amendment due

process right. As his claim is not colorable, the court lacks

jurisdiction to consider it.

2. Social Security Ruling 91-5p

Jenkerson also contends that his due process rights were

violated because his mental impairments prevented him from

seeking review of his prior applications and that the ALJ failed

to properly consider the medical evidence relevant to his claim

under the reguirements of SSR 91-5p. "An allegation of mental

impairment can form the basis of a colorable constitutional claim

if the mental impairment prevented the claimant from

understanding how to contest the denial of benefits." Klemm,

2008 WL 4210589, at *5. An allegation of mental impairment

during the time for filing an appeal and when a claimant was not

represented is sufficient to state a colorable claim for

jurisdictional purposes. Evans v. Chater, 110 F.3d 1480, 1483

(9th Cir. 1997) .

Jenkerson has alleged a colorable claim, that he suffered

from a mental impairment during the time for appealing the two

prior decisions while he was not represented by counsel.

Therefore, the court has jurisdiction to consider whether

substantial evidence supported the ALJ's determination under SSR

91-5p that Jenkerson had sufficient mental capacity to appeal the

7 prior decisions. See Udd v. Massanari, 245 F.3d 1096, 1100 (9th

Cir. 2001).

B. Constructive Reopening

Alternatively, Jenkerson asserts that the ALJ constructively

reopened his prior applications by considering the evidence

raised in the applications on the merits. Contrary to

Jenkerson's interpretation, the ALJ's decision does not show or

even suggest that he considered the prior applications on the

merits. In addition, when four years have elapsed since the

denial of an application for benefits, an ALJ cannot reopen the

application, constructively or otherwise, unless 20 C.F.R. §

404.988(c) applies. See King v. Chater, 90 F.3d 323, 325 (8th

Cir. 1996). Jenkerson does not contend that his case falls

within one of the circumstances described in § 404.988(c).

IV. CONCLUSION

For the foregoing reasons, the Commissioner's motion to

dismiss (Doc. No. 4) is denied as to Jenkerson's claim that his

Fifth Amendment due process rights were violated because he was

unable to file a timely appeal due to his mental impairment, but

is granted as to Jenkerson's claims that his due process rights

were violated by the form of the June 1996 notice and his reguest

for review of the Commissioner's determination as a final decision.

The case shall proceed under Local Rule 9.1 to address the

single remaining due process claim. All further proceedings

shall be referred to the Magistrate Judge for report and

recommendation.

SO ORDERED.

Paul Barbadoro United States District Judge

September 30, 2008

cc: Jeffry A. Schapira, Esg. Gretchen Leah Witt, Esg.