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
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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
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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
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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
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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
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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.
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