Blake v. SSA

Blake v. SSA                                 CV-02-112-B   03/18/03

                   UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF NEW HAMPSHIRE



John Blake

     v.                                Civil No. 02-112-B
                                       Opinion No. 

Jo Anne B. Barnhart



                         MEMORANDUM AND ORDER

     On April 27, 1999, John Blake filed an application with the

Social Security Administration     ("SSA")    for Title II disability

insurance benefits    ("DIB").   SSA denied his application initially

and again upon reconsideration.     Blake filed a timely request for

rehearing upon which administrative law judge        ("ALJ"), Matthew J.

Gormley,   III, held a discretionary hearing.       On April 27, 2000,

the ALJ issued his decision dismissing Blake's application.           The

ALJ construed Blake's application as a request to reopen a prior

application for DIB, which had been denied by the SSA.         The ALJ

dismissed Blake's 1999 application because it was untimely,

lacked good cause necessary to grant an untimely request to

reopen an application under Social Security Ruling 91-5p        ("SSR
91-5p"), and was otherwise       barred by the doctrine of res

iudicata.   Blake appealed, but on January 11, 2002, the Appeals

Council denied his request for review.

     Blake brings this action pursuant to 

(g),

seeking review of the dismissal of his 1999 application.                    In

response,   the Commissioner argues in a motion to dismiss that I

lack subject matter jurisdiction over this dispute.                    See Fed. R.

Civ. P. 12(b)(1).    For the reasons set forth below,                 I deny the

Commissioner's motion to dismiss                (Doc. No. 5).



                            I.    BACKGROUND

     On November 9, 1992, Blake filed an application for DIB and

for Title XVI supplemental security income benefits                   ("SSI").     At

the time, Blake suffered from, among other things, post traumatic

stress disorder, depression,      and alcoholism.               Blake filed his

applications pro s e .   Both applications were denied at the

initial level of administrative review.                 Blake sought further

administrative review of the SSI denial,                and he was ultimately

found eligible for SSI by ALJ, Peter M. Murphy.                    However, Blake

did not request further administrative review of the initial



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decision denying his DIB application.             Blake had received a

written notice of the initial denial of his DIB application on

December 2 1   , 1992.
     Over six years later, on April 27, 1999, Blake filed a

second application for DIB, which was denied initially and upon

reconsideration.         Blake then requested a hearing before an ALJ.

A discretionary hearing was held on February 2, 2000.             The ALJ

construed Blake's 1999 application as a request to reopen his

1992 DIB application for further adjudication.             Blake's request,

according to the ALJ, was based upon good cause that he was

mentally impaired in 1992 and was unable to comprehend the

administrative review process regarding the denial of his 1992

DIB application.1        In rejecting this request, the ALJ concluded.


      1 Under the regulations, a decision may be reopened and
revised within four years of the date of the initial
determination with good cause.    

(b).  A
decision may also be reopened and revised at any time if
particular circumstances are met, none of which apply in this
case.   See 

(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.    However, SSR 91-5p 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

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in pertinent part, that Blake failed to demonstrate good cause

necessary to grant an untimely reguest to reopen a prior

application under SSR 91-5p, and that Blake's alleged mental

illness did not sufficiently impair his ability to comprehend the

administrative review process.       Accordingly,   the ALJ declined to

reopen the 1992 DIB application or revise the initial decision

denying it.   The ALJ also concluded that, in so far as the 1999

application was a second application for DIB, the application

must be dismissed on the grounds of administrative res iudicata.

     Blake retained a representative and reguested a review of

the ALJ's decision.   In his reguest, Blake argued that the ALJ

erred in concluding that Blake had the mental capacity to

comprehend the 1992 DIB administrative appeals process.         Thus,

the ALJ's refusal to reopen and revise the case violated the

provisions of SSR 91-5p.   On January 11, 2002, the Appeals

Council denied Blake's reguest that it review the ALJ's decision.




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 reguest review."   SSR
91-5p, 

 at *2.

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        Blake brought this suit, alleging that the ALJ's dismissal

of his reguest to reopen his prior application violated SSR 91-5p

and his Fifth Amendment due process rights.             Specifically, Blake

alleges that the ALJ failed to consider evidence that Blake was

mislead by an SSA employee into believing he could not appeal the

1992 DIB decision.2      Furthermore, Blake alleges that his pro se

status and mental illness rendered him unable to comprehend the

administrative appeals process,          therefore,   the ALJ should have

granted his reguest to reopen the 1992 DIB application.



                          II.   STANDARD OF REVIEW

        When a defendant moves to dismiss pursuant to Rule 12(b)(1),

the plaintiff bears the burden of proving the existence of

subject matter jurisdiction.       Aversa v. United States, 

   (1st Cir. 1996).   I must construe the complaint

liberally,      treating all well-plead facts as true and indulging

all reasonable inferences in favor of the plaintiff.             I d . at

1209-210.       The moving party may present,     and I may consider.




     2 According to the record before me, this allegation was
not presented to the ALJ or to the Appeals Council.

                                     -   5   -
materials outside of the pleadings that dispute the plaintiff's

jurisdictional facts.       Valentin v. Hosp. Bella Vista, 

       (1st Cir. 2001); 5A C. Wright & A. Miller,          Federal

Practice and Procedure § 1350 at 213             (2d ed. 1990) .



                              III.   DISCUSSION

      Judicial review of the commissioner's decisions is limited

to "any final decision . . . made after a hearing."                 

 0 5 (g).    The denial of a reguest to reopen an application for

disability benefits is discretionary and generally not subject to

judicial review.       See Califano v. Sanders, 

(1977); Colon v. Sec'v of HH S , 

            (1st Cir. 1989).

An exception to this rule exists where a colorable constitutional

claim has been presented by the claimant.              See Sanders, 

; Dvareckas v. Sec'v of HH S , 

              (1st Cir.

1986); Leach v. Apfel, 

 at *4             (D.Me. 2000).3




     3 The Ninth Circuit has refined the Sanders exception to
apply to "any colorable constitutional claim of a due process
violation that implicates a due process right either to a
meaningful opportunity to be heard or to seek reconsideration of
an adverse benefits determination." Rolen v. Barnhart, 

 (2001) (brackets omitted).

                                     -   6   -
     The commissioner argues that federal courts may only review

her "final" decisions.    Because a declination to reopen a prior

application for benefits does not constitute a "final" decision,

the commissioner concludes that I lack subject matter

jurisdiction in this case.    The commissioner also claims that I

lack subject matter jurisdiction to review the ALJ's dismissal of

the 1999 application on the alternate theory of res iudicata.       In

response,   the plaintiff claims that subject matter jurisdiction

exists because he raises a colorable constitutional claim, namely

that his mental illness and misleading statements by SSA

officials rendered him unable to comprehend the administrative

appeals process regarding his 1992 DIB application.     Thus, he

claims that the ALJ's denial of his reguest to reopen the

application violates his due process rights under the Fifth

Amendment.

     As I must at this stage of the proceedings indulge all

reasonable inferences in favor of Blake, his complaint can be

construed to allege that he suffered from post traumatic stress

disorder at the time he filed his 1992 DIB application pro s e .

Furthermore, he claims that his mental illness,   along with his



                                 -   7   -
allegation that SSA officials mislead him, rendered him unable to

comprehend or act upon the administrative remedies available to

him regarding the denial of his 1992 DIB application.    Again,

giving Blake the benefit of all reasonable inferences,    the

complaint concludes that because he was unable to effectively

comprehend or act upon the administrative appeals process,      the

ALJ's decision not to reopen the 1992 application for good cause

violated SSR 91-5p and his right to due process under the Fifth

Amendment.   See Compl. at 5 IV.4

     The First Circuit has not decided whether notice of the

administrative appeals process to a pro se claimant who is unable

to comprehend or act upon it because of mental impairment or

misleading information raises a colorable constitutional claim

exempt from the general limitation of judicial review.5    Those


     4 I note that the plaintiff's objection appends the
decision of the ALJ (Murphy) regarding claimant's eligibility for
SSI benefits.  The decision specifically notes that Blake has
suffered from, among other things, post traumatic stress disorder
and chronic depression since at least November 9, 1992.  These
mental impairments, according to the ALJ, affected Blake's
ability to concentrate, think, or complete tasks in a timely
manner.

      5 The First Circuit has looked favorably upon such an
argument in dicta and in a recent unpublished opinion.   See Matos
v . Sec'v of HEW, 

, 287 n.8 (1978) (noting that mental
claimants who have raised the argument elsewhere, however, have

obtained favorable results.      See e.g., Sieberger v. Apfel, 

    (2d Cir. 1997)   (collecting cases); Evans v. Chater,

110 F .3d 1480,   1483   (9th Cir. 1997); Leach, 

 at

*4.   I follow these decisions and conclude that, in so far as

Blake's constitutional claim is based upon mental impairment

rendering him unable to understand or act upon the administrative

appeals process in 1992, it raises a colorable constitutional

claim.   See i d .

      Because Blake has raised a colorable constitutional claim

regarding the ALJ's declination of the reguest to reopen the 1992

DIB application,     I have subject matter jurisdiction over this

decision.     Any further review of this matter shall be limited to

whether substantial evidence supports the ALJ's determination

that Blake was able to comprehend and/or act upon the

administrative remedies available to him in 1992.      Accordingly,    I

deny the commissioner's motion to dismiss.




disability could have affected claimant's ability to pursue
administrative remedies); Boothbv v. Commissioner, 

,

 (1st Cir. 1997) (unpublished table opinion).
      SO ORDERED.




                                          Paul Barbadoro
                                          Chief Judge


March 18, 2003

cc:   David Boderick, Esq.
      Raymond Kelly, Esq.




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