Blake v . SSA CV-02-112-B 11/14/03
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
John Blake
v. Civil N o . 02-112-B
Opinion N o . 2003 DNH 196
Social Security Administration
MEMORANDUM AND ORDER
John Blake claims that the Social Security Administration
(“SSA”) violated his Fifth Amendment right to procedural due
process when it rejected his effort to revisit a six year-old
ruling denying his claim for Disability Insurance Benefits
(“DIB”). Blake contends that his belated effort to pursue his
DIB claim should have been permitted because he suffers from
mental impairments that prevented him from understanding and
acting upon the administrative review process in a timely
fashion. Although I ordinarily will sustain an administrative
ruling on an issue such as this if the ruling is supported by
substantial evidence, I remand for a further hearing because
Blake was not given a reasonable opportunity to prove his
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contention before an administrative law judge.
I. BACKGROUND
On November 9, 1992, Blake filed a pro se applications for
DIB and Supplemental Security Income Benefits (“SSI”) pursuant to
Title II and Title XVI of the Social Security Act. The SSA
initially denied both applications on December 2 7 , 1992. Blake
sought further review of his SSI claim but did not pursue his DIB
claim. ALJ Peter Murphy ultimately awarded Blake SSI benefits in
1994.
Blake filed a second application for DIB on April 2 7 , 1999,
more than six years after the SSA denied his original
application.1 ALJ William Gormley sent Blake a hearing notice
for his 1999 application which explained that “[t]he undersigned
Administrative Law Judge will receive testimony and additional
documentary evidence in order to decide whether reopening of the
[1992 DIB application] is warranted.” The notice further stated
that
The general issue to be decided is whether
1
Apparently, the 1999 application was prompted by Blake’s
receipt of a letter indicating that his SSI was about to run out.
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you are entitled to a period of disability
under section 216(i) of the Social Security
Act and to disability insurance benefits
under 223(a). The specific issues to be
decided are (1) whether you have enough
Social Security earnings to be “insured for
disability” and, if s o , as of what date; (2)
the nature and extent of your impairment; (3)
whether your impairment has lasted or can be
expected to last for at least 12 months, or
can be expected to result in death; (4) your
ability to engage in substantial gainful
activity since your impairment began; and (5)
when your disability, if any began.
Record at 8 0 .
The hearing on Blake’s 1999 application focused on the
merits of his claim rather than his mental capacity to understand
and comply with the administrative review process in 1992. Blake
was not questioned directly concerning his reasons for failing to
appeal from the denial of his application in 1992. Nor did the
medical evidence he produced pertain directly to his mental
capacity to understand and comply with the administrative review
process.
ALJ Gormley declined to reopen Blake’s 1992 application on
procedural grounds. He noted that a claimant in Blake’s position
is entitled to have a prior application reopened “[w]hen the
claimant’s late filing of a request for administrative review is
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based on evidence that mental incapacity prevented him from
timely requesting review of an adverse determination . . . .”
Record at 1 7 . Notwithstanding ALJ Murphy’s ruling in 1992 that
Blake was entitled to SSA benefits because his mental impairments
prevented him from being able to work, ALJ Gormley concluded that
Blake’s mental impairments did not prevent him from being able to
appeal the 1992 decision denying his request for DIB. He based
his ruling primarily on the fact that Blake was able to file his
initial applications for DIB and SSA benefits and successfully
appealed the denial of his SSA claim. He also reviewed the
minimal medical evidence in the record and concluded that
“treatment notes from treatment sources are not indicative of any
mental incapacity which interfered with [Blake] being able to
timely request review of an adverse determination or otherwise
prevented him from being able to understand the review process.”
Id.
Blake subsequently brought suit in this court alleging that
the ALJ’s dismissal of his request to reopen his prior
application violated his Fifth Amendment due process rights.
II. ANALYSIS
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Under the applicable Social Security Administration
regulations, an administrative decision denying a claim for
benefits may be reopened and revised within four years of the
date of the initial determination for good cause. 20 C.F.R. §
404.988(b). A decision may also be reopened and revised at any
time if particular circumstances are met, but none of these
circumstances are present in this case. See
20 C.F.R. §
404.988(c). Thus, on the face of the regulations, it appears
that Blake could not maintain his request to reopen as it falls
outside the time limitations and conditions of the regulations.
Social Security Ruling 91-5p, however, clarifies the
interpretation of these regulations and states “[i]t has always
been SSA policy that failure to meet the time limits for
requesting review is not automatic grounds for dismissing the
appeal . . . . When a claimant presents evidence that mental
incapacity prevented him or her from timely requesting review of
an adverse determination, decision, dismissal, or review by a
Federal district court, and the claimant had no one legally
responsible for prosecuting the claim . . . at the time of the
prior administrative action, SSA will determine whether or not
good cause exists for extending the time to request review.”
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S.S.R. 91-5p, 1991 WL 208067 at * 2 . I have jurisdiction to
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review ALJ Gormley’s decision not to reopen Blake’s 1992
application because he has raised a colorable claim that the
decision violated his right to due process. See Blake v .
Burnhart, 2003 DNH 045*9.
The First Circuit has not identified the standard of review
that a district court should employ when it reviews an ALJ’s
ruling that a claimant had sufficient mental capacity to
challenge an adverse benefits ruling. The Second, Fourth, and
Ninth Circuits, however, have all held that such a ruling should
be reviewed under the familiar substantial evidence test.
Steiberger v . Apfel, 134 F.3d 3 7 , 41 (2nd Cir. 1997); Shrader v .
Heckler,
754 F.2d 1 4 2 , 144 (4th Cir. 1985); Evans v . Chater,
110
F.3d 1480, 1484 (9th Cir. 1997). 2 Ordinarily, I would follow the
lead of these courts. In this case, however, ALJ Gormley held a
hearing to consider whether to reopen Blake’s 1992 application
for DIB but failed to give him adequate notice as to the issues
he intended to consider at the hearing. Nor did ALJ Gormley make
2
The fact that Blake did not adequately argue the due
process issue below is not sufficient to bar my consideration.
Shrader v . Harris, 631 F.2d 2 9 7 , 300 (4th Cir. 1980)(excusing
failure to present due process issue to Secretary.).
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a satisfactory effort to develop a record on which to decide the
issue. Accordingly, I remand for a further hearing.
Although ALJ Gormley notified Blake that he intended to hold
a hearing on whether to reopen Blake’s 1992 DIB application, the
hearing notice did not explain that Blake would be required to
prove that his mental impairments prevented him from being able
to understand and comply with the administrative review process.
Instead, it suggested that the hearing would focus on the merits
of his claim for DIB. As a result, although Blake attempted to
demonstrate that his mental impairments prevented him from being
able to work, he did not attempt to explain how his impairments
affected his ability to appeal the adverse DIB ruling. The
hearing notice Blake received did not meet the minimum
requirements of due process because it prevented him from being
able to properly prepare for the hearing. See, e.g., Loudermilk
v . Burnhart, 290 F.3d 1265, 1268 (11th Cir. 2002); Gonzalez v .
Sullivan,
914 F.2d 1997, 1203 (9th Cir. 1990).
The problem created by the defective hearing notice was
compounded by the fact that ALJ Gormley did not attempt to
develop evidence concerning the impact of Blake’s impairments on
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his ability to appeal the 1992 DIB ruling. In view of the fact
that another ALJ had previously determined that Blake suffered
from mental impairments that prevented him from being able to
work in 1992, ALJ Gormley had substantial reason to be concerned
about Blake’s ability to appeal the adverse DIB ruling.
Nevertheless, he did not question Blake about the issue directly
or otherwise attempt to develop the record on the issue. As the
Supreme Court has recently explained, “Social Security
proceedings are inquisitorial rather than adversarial. It is the
ALJ’s duty to investigate the facts and develop the arguments
both for and against granting benefits.” Sims v . Apfel, 530 U.S.
103, 111 (2000). ALJ Gormley did not fulfill his responsibility
to develop the record.
In summary, ALJ Gormley should have (a) put Blake on notice
as to the nature of the inquiry; (b) inquired of Blake as to his
mental capacity to follow or understand the appellate process in
1992; and (c) in the absence of existing documentation in the
record, collected documentation or testimony from the doctors and
social workers who treated Blake at the relevant time.
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IV. CONCLUSION
I deny defendant’s motion to affirm (Doc. N o . 24) and grant
plaintiff’s motion to remand (Doc. N o . 2 0 ) . I remand to the SSA
for further consideration consistent with this opinion.
SO ORDERED.
Paul Barbadoro
Chief Judge
November 1 4 , 2003
cc: David Boderick, Esq.
Raymond Kelly, Esq.
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