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.)
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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
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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.
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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
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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
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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)).
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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,”
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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.
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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
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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.
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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
proceedings consistent with this opinion.
SO ORDERED.
Steven J. McAuliffe
United States District Judge
March 8 , 2004
cc: David L . Broderick, Esq.
Karen B . Nesbitt, Esq.
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