Nerich v SSA

                     UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF NEW HAMPSHIRE



Dann B. Nerich

   v.                                Civil No. 13-cv-396-PB
                                     Opinion No. 

Carolyn Colvin,
Acting Commissioner,
Social Security Administration


                        MEMORANDUM AND ORDER


        Dann Nerich seeks judicial review of the Social Security

Administration’s refusal to reopen his previously denied claim

for a period of disability and disability insurance benefits.

He makes three separate claims to support his motion to reverse

or remand the Commissioner’s decision: (1) that the

Administrative Law Judge (“ALJ”) lacked substantial evidence to

conclude that he had the mental capacity to understand the

procedures for requesting further review of his previous claim;

(2) that the ALJ erred by finding that additional evidence

submitted by Nerich did not warrant reopening his claim; and (3)

that the ALJ constructively reopened Nerich’s claim by reviewing

it on the merits, rendering it subject to judicial review.      The

Commissioner has moved to affirm her decision as to claim (1)

and to dismiss claims (2) and (3) for lack of subject matter
jurisdiction.   For the reasons that follow, I grant the

Commissioner’s motions and deny Nerich’s motion to reverse.



                             I.   BACKGROUND

A.   Medical Evidence1

     1.   Clinical Records

     Nerich is a 58-year-old male.      His physicians report that

he has “a long history of alcohol abuse.”      Tr. at 457.   In

December 2010, he was diagnosed with cirrhosis of the liver.      He

was hospitalized for five days in January 2010 for ascites,2

edema,3 and encephalopathy.4

     Nerich consulted with his gastroenterologist, Dr. Rolland

C. Dickson, on March 2, 2010.      At that visit, Dickson noted that

Nerich presented as a “54-year-old male with end-stage liver

1
  Section A of the background section is taken substantially from
the parties’ Joint Statement of Material Facts (Doc. No. 21).
See L.R. 9.1(b). Minor stylistic and substantive changes have
been made, and citations to the administrative transcript have
been omitted except for direct quotations.
2
  Ascites is the effusion and accumulation of serous fluid in the
abdominal cavity. Dorland’s Illustrated Med. Dictionary
(Dorland’s) 164 (31st Ed. 2007).
3
  Edema is the presence of abnormally large amounts of fluid in
the intercellular tissue spaces of the body. Dorland’s, supra
note 2, at 600.
4
  Encephalopathy refers to any degenerative disease of the brain.
Dorland’s, supra note 2, at 622.

                                    2
disease likely due to alcohol.”   Tr. at 463.    Assessing Nerich’s

encephalopathy, Dr. Dickson wrote, “On lactulose,5 well

controlled.”   Tr. at 464.

     Nerich again consulted with Dr. Dickson on May 19, 2010.

Dr. Dickson recorded that Nerich “returns today still with

intermittent confusion, ascites/edema well controlled. Weight

loss and muscle mass loss have stabilized. He notes weakness,

lack of interest in things, depression.”     Tr. at 448.   After a

physical examination and reviewing lab work, Dr. Dickson wrote

that Nerich presented with “end-stage liver disease likely due

to alcohol.”   Tr. at 453.   He noted Nerich had been taking

lactulose for symptoms related to encephalopathy and continued

to complain of confusion intermittently. He felt many of

Nerich’s symptoms were “due to depression, would benefit from an

antidepressant.”    Id.

     On May 20, 2010, Nerich visited Linda D. MacDougall,

FPMHNP, for follow-up therapy for his major depression.     She

noted that Nerich had a good appointment with “Endocrine @ DHMC,

liver improving.”   Tr. at 326.   However, MacDougall went on to

record that Nerich was struggling with “loss of social support,

marital stress became more apparent today.      Pt seems


5
  Lactulose is a drug used to treat, among other things,
encephalopathy.
                                3
anger/perplexed with why wife doesn’t spend more time with their

son. Pt pleased that wt up a bit.         Wanted to begin exercising

but no motivation.”     Tr. at 326.       She felt that Nerich was

experiencing major depression and asked him to begin taking the

medication Amiloride.     She wrote that Nerich was still

struggling with “intense anhedonia6 and no motivation. Will begin

to increase Fluoxetine.”    Tr. at 326-27.

     Nerich followed up with MacDougall on June 4, 2010. Her

assessment was that Nerich appeared “more lethargic today.

States he is sleeping better but not sure there has been any

significant impact.”     Tr. at 325.      She felt Nerich continued to

experience major depression. She asked him to continue with

supportive therapy and relationship building.         Id.

     On June 30, 2010, Nerich visited primary care physician Dr.

John Ford, complaining of low energy levels.         He reported that

he was feeling well.     He was alert and oriented and in no acute

distress on examination.

     Nerich followed up with MacDougall on July 22, 2010, where

she noted that he seemed more positive and was getting some

projects done at home and looking for part-time work.          She again

assessed that Nerich was experiencing major depression and

6
  Anhedonia is the total loss of feeling of pleasure in acts that
normally give pleasure. Dorland’s, supra note 2, at 92.

                                      4
should continue with supportive therapy.     He was taking the drug

Fluoxetine for his depression.

    Nerich met with Anna Lingelbach-Lorenz, PA-C, on July 27,

2010. On examination, he appeared alert and pleasant and was in

no acute distress.

    Nerich followed up with Dr. Dickson on September 1, 2010.

Dr. Dickson indicated that Nerich’s disease was complicated by

“ascites, edema, intermittent confusion, muscle mass loss. His

ascites, edema had resolved; his confusion had resolved, as had

his muscle mass.”    Tr. at 263.   Shortly after that office visit,

Dr. Dickson corresponded with Nerich’s primary care physician,

Dr. Ford, on September 15, 2010, indicating that Nerich had

reached the point “where he should be considered for a liver

transplantation.”    Tr. at 265.   On October 19, 2010, Nerich’s

depression and encephalopathy were both described as

“controlled” by Dr. Dickson.

    2.   Nerich’s Testimony

    Nerich testified at a hearing before Administrative Law

Judge Thomas Merrill on April 29, 2013.    The ALJ asked Nerich to

describe a typical day around November to December of 2009.

Nerich stated that at the time, he lived in a big four-bedroom

federal style home that required a lot of maintenance.    He

generally took care of the house maintenance, cooking, cleaning,
                                   5
and laundry.    Aside from that, he did a lot of reading. Nerich

stated that he had become terribly lethargic; he was also

treated for depression, and the anti-depressant prescribed by

his primary care physician had been somewhat helpful.      He said

that he had experienced issues with memory and lack of stamina

since December 2009.    Nerich stated that his memory issues

because moderately chronic at one point but improved after his

doctor prescribed lactulose and he altered his diet to alleviate

constipation.    Nerich stated that his cognitive issues

eventually stabilized.

B.   Procedural History and the ALJ’s Decision

     On January 20, 2010, Nerich submitted a claim for a period

of disability and disability insurance benefits alleging

disability beginning on November 15, 2009.    His claim was denied

at the initial stage on June 22, 2010, and Nerich did not

further appeal that denial.

     On November 3, 2011, Nerich submitted a second claim for a

period of disability and disability insurance benefits, again

alleging disability beginning on November 15, 2009.    That

application, too, was denied at the initial stage on January 15,

2012.   Nerich then requested a hearing before an Administrative

Law Judge (“ALJ”).

     Following a hearing on April 29, 2013, the ALJ issued an
                                  6
order dismissing Nerich’s claim.       The ALJ made three findings to

support his ruling.     First, the ALJ found that Nerich, “as of

June 22, 2010 [the date of his first claim’s denial], had the

mental capacity to understand the procedures for requesting

further review of his [first] claim, but simply did not file a

request for hearing.”     Tr. at 18.   Thus, the ALJ concluded, no

basis existed under Social Security Ruling (“SSR”) 91-5p to

retroactively extend the deadline for Nerich to appeal his first

claim.

    Second, the ALJ found that Nerich’s second claim involved

the same facts and issues as his first claim.       Therefore, the

ALJ concluded that the doctrine of res judicata precluded him

from reviewing Nerich’s claim on its merits.

    Finally, and after considering additional evidence

submitted by Nerich with his second claim, the ALJ found that

the additional evidence was not material because it did not

offer any “reasonable probability that it would change the prior

outcome.”   Tr. at 18.    Thus, the ALJ concluded that “none of

the conditions for reopening set forth in 20 CFR 404.988 is

present in this case” and, accordingly, declined to reopen

Nerich’s claim.

    On July 30, 2013, the Appeals Council denied Nerich’s

request for review of the ALJ’s dismissal of his second claim.
                                   7
On September 5, 2013, Nerich filed a complaint with this Court,

and after this Court granted his motion for leave to amend his

complaint, Nerich filed an amended complaint on March 5, 2014.

He then filed a motion to reverse or remand the Commissioner’s

decision, and the Commissioner responded with motions to affirm

her decision and to dismiss for lack of subject matter

jurisdiction.


                      II.   STANDARD OF REVIEW

    Under 

(g), I am authorized to review the

pleadings submitted by the parties and the administrative record

and enter a judgment affirming, modifying, or reversing the

“final decision” of the Commissioner.   My review “is limited to

determining whether the ALJ used the proper legal standards and

found facts [based] upon the proper quantum of evidence.”      Ward

v. Comm’r of Soc. Sec., 

 (1st Cir. 2000).

Findings of fact made by the ALJ are accorded deference as long

as they are supported by substantial evidence.   

   Substantial

evidence exists “‘if a reasonable mind, reviewing the evidence

in the record as a whole, could accept it as adequate to support

his conclusion.’”   Irlanda Ortiz v. Sec’y of Health & Human

Servs., 

 (1st Cir. 1991) (per curiam) (quoting

Rodriguez v. Sec’y of Health & Human Servs., 

, 222


                                  8
(1st Cir. 1981)).    If the substantial evidence standard is met,

factual findings are conclusive even if the record “arguably

could support a different conclusion.”        Id. at 770.   Findings

are not conclusive, however, if they are derived by “ignoring

evidence, misapplying the law, or judging matters entrusted to

experts.”    Nguyen v. Chater, 

 (1st Cir. 1999)

(per curiam).    The ALJ is responsible for determining issues of

credibility and for drawing inferences from evidence in the

record.     Irlanda Ortiz, 

.    It is the role of the

ALJ, not the court, to resolve conflicts in the evidence.         

                            III.   ANALYSIS

    Nerich offers three arguments to support his motion to

reverse the Commissioner’s decision: (1) that the Commissioner

lacked substantial evidence to conclude that he had the mental

capacity to understand the procedures for requesting further

review of his January 2010 claim; (2) that the Commissioner

erred by refusing to reopen his January 2010 claim on the basis

of new and material evidence; and (3) that the ALJ

constructively reopened Nerich’s 2010 claim by reviewing it on

the merits, rendering it subject to judicial review.         See Doc.

No. 15-1.    The Commissioner has moved to affirm her decision

regarding Nerich’s first argument and to dismiss Nerich’s second
                                   9
and third arguments for lack of subject matter jurisdiction.

See Doc. Nos. 16, 17, 18.    For the reasons that follow, I grant

both of the Commissioner’s motions and deny Nerich’s motion to

reverse.

A.   Social Security Ruling 91-5p

     

 allows a claimant sixty days from

receipt of notice of a claim’s denial to request review of that

denial.    

(a)(1).   If a claimant does not

request review within the sixty-day period, the Commissioner’s

decision becomes final.    

(a).   Thereafter,

the Commissioner may reopen a final decision only as provided by

.    Specifically, the Commissioner may reopen

any decision within twelve months “for any reason,” within four

years if the Commissioner “find[s] good cause” to do so as

defined by 

, or at any time beyond twelve

months under certain other circumstances that do not pertain

here.   See 

.    SSR 91-5p, however, stipulates

that “[w]hen a claimant presents evidence that mental incapacity

prevented him or her from timely requesting review of an adverse

determination . . . and the claimant had no one legally

responsible for prosecuting the claim” in the prior proceedings,

the claimant automatically establishes good cause to reopen the

prior decision regardless of how much time has passed since the
                                   10
decision was made.   SSR 91-5p, 

, at *2 (July 1,

1991).   To establish good cause in this manner, SSR 91-5p

requires claimants to show that they “lacked the mental capacity

to understand the procedures for requesting review” before the

period for requesting further review expired.    

     Nerich’s January 2010 claim was denied in June 2010.     Tr.

at 17.   Because he failed to request review of that decision

before the deadline to do so expired in August 2010, the denial

became final at that time.   See 

(a).     Nerich

now argues, however, that he lacked the mental capacity to

understand the procedures for timely requesting further review

of his January 2010 claim before the August 2010 deadline

expired.   See Doc. No. 15-1 at 4-9.   For that reason, he

contends, he can establish good cause under SSR 91-5p for the

Commissioner to reopen his claim.   See 

      I am unpersuaded by Nerich’s argument and instead

determine that substantial evidence supports the ALJ’s decision

on this issue.7   The record evinces only two conditions that may


7
     Although the First Circuit has not decided in a published
opinion which standard of review should control SSR 91-5p
analysis, the parties agree that the substantial evidence
standard should apply, and that position is consistent with the
past practice of the First Circuit, other courts of appeals, and
this Court. See Frusher ex rel. Frusher v. Astrue, 

 (1st Cir. 2010) (per curiam) (applying substantial
evidence standard in SSR 91-5p analysis); Udd v. Massanari, 245
                                11
have impaired Nerich’s ability to understand the procedures for

requesting further review of his claim: encephalopathy and

depression.8   Nerich was hospitalized for five days in January

2010 for end-stage alcoholic liver disease, and he suffered from

encephalopathy at that time.   Tr. at 457.    By March 2010,

however, his records indicate that his encephalopathy was “well

controlled” with treatment.    Tr. at 464.   By May 2010, Nerich

complained of only intermittent confusion, and a treating

physician noted at around that time that Nerich appeared

“[a]lert [and] oriented” despite “appear[ing] significantly



F.3d 1096, 1100 (9th Cir. 2001) (same); Stieberger v. Apfel, 

 (2d Cir. 1997) (remanding with instruction to apply
substantial evidence standard in SSR 91-5p analysis); Shrader v.
Heckler, 

 (4th Cir. 1985) (applying substantial
evidence standard in SSR 91-5p analysis); Dupont v. Astrue, 

 (same). The question before me, therefore, is
whether substantial evidence in the record supports the ALJ’s
finding that Nerich did not lack the mental capacity to
understand the procedures for requesting further review of his
first disability claim before the sixty-day deadline expired in
August 2010.
8
  Beyond encephalopathy and depression, Nerich points to only one
other basis for his alleged mental incapacity: “significant
symptomatology as a result of his liver disease.” See Doc. No.
15-1 at 9. Other than this one conclusory statement, however,
Nerich does not identify the specific symptoms associated with
his “significant symptomatology” or explain how they diminished
his capacity to understand the procedures for requesting review,
much less provide any relevant citation to the record. See 

There is no doubt that Nerich suffered from serious liverrelated complications in 2010, but SSR 91-5p requires a showing
of mental incapacity, not of illness in general. See SSR 91-5p,

, at *2; Dupont, 

.
                                12
depressed.”    Tr. at 257, 260.     On September 1, 2010, a treating

physician concluded that, at that point, Nerich “[did] not have

any actual encephalopathy despite discontinuing [treatment].”

Tr. at 263.    This evidence supports the ALJ’s finding that

Nerich’s encephalopathy did not prevent him from understanding

the procedures for requesting review of his January 2010 claim

before the deadline expired in August 2010.      Similarly, although

Nerich’s records confirm that he suffered from depression at the

time of his first claim’s denial, subsequent records from

October 2010 assess his depression as “[c]ontrolled” at that

time.    Tr. at 269.   The ALJ found no evidence suggesting that

Nerich’s depression presented any cognitive impairment that

might have hindered his understanding of the procedures for

requesting review of his claim before the August 2010 deadline,

and Nerich has pointed to nothing in the record that might rebut

the ALJ’s finding.     Tr. at 18.   As with Nerich’s encephalopathy,

therefore, substantial evidence supports the ALJ’s finding that

Nerich’s depression did not prevent him from understanding how

to timely request further review of his January 2010 claim.

       Nerich challenges the ALJ’s findings mainly by urging me to

adopt a different interpretation of the record from that of the

ALJ.    See Doc. No. 15-1 at 4-9.    The substantial evidence

standard, however, forbids me from disturbing a factual finding
                                    13
made by an ALJ so long as substantial evidence supports that

finding.    See Irlanda Ortiz, 

.   Here, substantial

evidence supports the ALJ’s conclusion that Nerich did not lack

the capacity to understand the procedures for timely requesting

further review of his January 2010 claim.    Thus, no basis exists

under SSR 91-5p for reopening Nerich’s initial claim, and I

therefore grant the Commissioner’s motion to affirm that portion

of her decision.

B.   Reopening on Basis of New and Material Evidence

      Next, Nerich argues that the ALJ erred by declining to

reopen his case after finding that the additional evidence

Nerich submitted during the second proceeding was not new and

material.    The Commissioner responds by arguing that this Court

lacks jurisdiction to hear this argument and, therefore, that I

should dismiss it.

      The Social Security Act grants district courts jurisdiction

to review only “final decision[s]” of the Commissioner.     See 

(g).   Both the Supreme Court and the First Circuit

have held that the Commissioner’s denial of a request to reopen

a prior claim is a discretionary action, not a “final decision,”

and therefore is not subject to judicial review.     See id.;

Califano v. Sanders, 

 (1977); Dvareckas v. Sec’y

of Health & Human Servs., 

 (1st Cir. 1986)
                                 14
(“Whether additional medical reports are new or material or

warrant reopening is precisely the type of issue which, absent a

constitutional claim, we may not review . . . .”); see also

Martin v. Shalala, 

 (D.N.H. 1995).     A

claimant may avoid the final decision requirement for judicial

review only by raising a colorable constitutional claim against

the Commissioner’s action.    See Sanders, 

;

Dvareckas, 

.   Although Nerich contends that the

ALJ erred by concluding that the additional evidence he

submitted with his second application was not material and,

therefore, did not warrant reopening, he has not alleged any

constitutional violation attributable to that conclusion.       Thus,

this Court lacks jurisdiction under § 405(g) to review the ALJ’s

denial of Nerich’s request to reopen his prior claim on the

basis of new and material evidence.

    Nerich does not address the controlling decisions in

Califano v. Sanders or Dvareckas v. Secretary of Health and

Human Services or otherwise explain how this Court might have

jurisdiction to hear his challenge against the ALJ’s refusal to

reopen his claim on the basis of new and material evidence.

Instead, and perhaps misunderstanding this case’s procedural

posture, Nerich cites this Court’s decision in Martin v.

Shalala, 

 (D.N.H. 1995), and the First Circuit’s
                                 15
decision in Evangelista v. Secretary of Health and Human

Services, 

 (1st Cir. 1995).     See Doc. No. 15-1 at

10.   Neither case supports Nerich’s position.   In Martin, the

claimant brought constitutional claims against the ALJ’s refusal

to reopen that involved due process and defective notice.     

.     Apart from those constitutional claims,

however, this Court expressly recognized that “absent a

colorable constitutional claim, courts do not have jurisdiction

to review a decision of the [Commissioner] not to reopen a

claim.”   

.   Nerich has not articulated any

constitutional violation arising from the ALJ’s refusal to

reopen on the basis of new and material evidence.    Moreover, in

Evangelista, the claimant timely sought district court review

and asked the court to remand his claim under § 405(g) for the

taking of new evidence, not, as here, to reopen a previously

decided claim for which the period to request judicial review

under § 405(g) had already expired.     See 

(g);

Evangelista, 

.     Evangelista, therefore, does not

apply to Nerich’s claim.9


9
  Nerich also argues that 

, which provides
that an action by the Commissioner “[d]enying [a] request to
reopen a determination or a decision” is not subject to judicial
review, does not bind this Court. See Doc. No. 20 at 3; 

(l). This Court’s jurisdiction to review “any
final decision of the Commissioner,” however, derives from §
                                16
      Thus, under § 405(g) and controlling precedent, I must

dismiss Nerich’s second argument for lack of subject matter

jurisdiction.

C.   Constructive Reopening

      Even if this Court lacks jurisdiction to review a refusal

to reopen a claim, Nerich argues, the ALJ below rendered his

decision reviewable because he constructively reopened Nerich’s

original claim.   See Doc. No. 15-1 at 20-23.   Neither the law of

constructive reopening nor the record validates Nerich’s

position.10

      It is true, as Nerich contends, that even if an ALJ does

not expressly reopen a claim, an ALJ may nevertheless do so

constructively by reviewing the claim on its merits.    See Morin


405(g) and the manner in which the Supreme Court and the First
Circuit have construed it, not from regulation. See 

(g); Sanders, 

; Dvareckas, 

.
10
  The Commissioner argues that this Court “lacks jurisdiction to
consider [Nerich’s] . . . argument . . . that the ALJ
constructively reopened his prior application by receiving new
evidence and holding a hearing.” Doc. No. 18 at 7. If the
Commissioner means to contend that district courts lack
jurisdiction to even initially determine whether an ALJ
constructively reopened a claim, I disagree. To be clear, this
Court has jurisdiction to consider whether the ALJ
constructively reopened Nerich’s original claim. If the ALJ had
in fact done so, then subject matter jurisdiction would attach
under § 405(g). See Morin v. Sec’y of Health & Human Servs.,

 (D.N.H. 1992). It is only because I
conclude that the ALJ did not constructively reopen Nerich’s
original claim that I must dismiss Nerich’s claim for lack of
jurisdiction.
                                17
v. Sec’y of Health & Human Servs., 

(D.N.H. 1992).   Once an ALJ constructively reopens a claim by

making a new merits decision, that decision becomes subject to

judicial review under § 405(g) just like any other final

decision made by the Commissioner.    See id.   Not every hearing

or taking of evidence conducted by an ALJ considering a request

to reopen, however, qualifies as a constructive reopening.     See

Torres v. Sec’y of Health & Human Servs., 

(1st Cir. 1988).   Indeed, “[i]t is entirely permissible for the

ALJ to make a threshold inquiry and review the evidence

presented by the claimant in order to resolve the reopening

issue.”    Morin, 

; see also Torres, 

.   Otherwise, “[i]f simply reviewing evidence relating to

a previous claim is viewed as a reconsideration on the merits,

the previous case would be constructively reopened virtually

every time a successive claim is filed.”    Girard v. Chater, 

 (D.R.I. 1996).

    To determine whether an ALJ constructively reopened a

claim, therefore, I must decide whether the ALJ dismissed the

disputed claim after finding no basis for reopening, an action I

cannot review, or instead denied the claim after revisiting its

merits, thereby constructively reopening the claim and

subjecting it to my review.   Thus, in Morin v. Secretary of
                                 18
Health and Human Services, this Court concluded that an ALJ had

constructively reopened a previously decided disability claim by

reviewing it on its merits.     

.   There,

however, the ALJ did not expressly refuse to reopen the claim,

applied the five-step sequential analysis prescribed by 

, and considered new evidence submitted by the

claimant to determine the merits of the claim, not whether the

evidence warranted reopening.    

   In Girard v. Chater, by

contrast, the district court determined that the ALJ had not

constructively reopened the disputed claim because the ALJ

expressly refused to reopen the claim, did not apply the five-

step sequential analysis, and considered the claimant’s new

evidence only to decide “whether any of that evidence was new

and material.”   

 (internal quotations

omitted).   For those reasons, the court concluded, the ALJ “did

nothing that could be construed as a reconsideration of [the

claim] on the merits.”   Id.; see also Wells v. Chater, No. 94-

439-JD, 

, at *9 (D.N.H. Apr. 30, 1996) (finding

that ALJ had not revisited previously decided claim on the

merits and, therefore, had not constructively reopened claim).

    The ALJ’s dismissal of Nerich’s claim falls squarely within

the Girard category.   He expressly refused to reopen Nerich’s

January 2010 claim, writing that “none of the conditions for
                                  19
reopening set forth in 20 CFR 404.988 is present in this case.

Accordingly, the previous determination remains final and

binding.”   Tr. at 18.   He did not apply the five-step sequential

analysis, and he considered the additional evidence that Nerich

submitted only to determine whether that evidence offered a

reasonable probability that it would change the prior outcome of

Nerich’s claim.   See Tr. at 18-19.   Nothing in the ALJ’s

decision suggests that he revisited the merits of Nerich’s

claim.   See Tr. at 17-20.   Thus, I cannot conclude that the ALJ

constructively reopened Nerich’s claim.    See Girard, 

.

    Nerich relies heavily on the fact that the ALJ held a

hearing and took evidence from both Nerich and a vocational

expert before issuing his decision.    See Doc. No. 15-1 at 21-23.

It is well settled, however, that an “ALJ [is] entitled to make

a threshold inquiry and review the evidence presented by the

claimant,” including evidence offered at a hearing, “in order to

resolve the reopening issue.”    Torres, 

; see

also Rios v. Sec’y of Health, Educ., & Welfare, 

(1st Cir. 1980) (“A purely discretionary hearing [held for]

purposes of receiving allegedly new and material evidence is not

a “hearing” within the meaning of § 405(g).”).   Nothing in the

hearing transcript suggests that the ALJ conducted anything
                                 20
other than this type of discretionary hearing.       Indeed, the ALJ

opened the hearing by observing that he “[had] a request for

[the] reopening of [Nerich’s] prior application due to new and

material evidence.”   Tr. at 24.    Thus, the ALJ continued, “I’ll

hear as to what constitutes the new and material evidence.”         Tr.

at 24.   Nerich’s counsel at the hearing — also Nerich’s counsel

in this appeal — then implicitly acknowledged the hearing’s

purpose and scope.    See Tr. at 25.     In short, the ALJ’s decision

itself did not constructively reopen Nerich’s claim, and the ALJ

did nothing in the hearing to alter that result.

    Because the ALJ did not constructively reopen Nerich’s

claim, this Court lacks jurisdiction to review it.        Thus, I must

grant the Commissioner’s motion to dismiss Nerich’s third claim

for lack of subject matter jurisdiction.



                           IV.   CONCLUSION

    For these reasons, I grant the Commissioner’s motions to

affirm her decision regarding SSR 91-5p (Doc. No. 17) and to

dismiss Nerich’s claims regarding reopening on the basis of new

and material evidence and constructive reopening for lack of

subject matter jurisdiction (Doc. No. 16).        I deny Nerich’s

motion to reverse (Doc. No. 15).        The clerk is directed to enter



                                   21
judgment accordingly and close the case.

      SO ORDERED.



                              /s/Paul Barbadoro
                              Paul Barbadoro
                              United States District Judge


November 17, 2014

cc:   T. David Plourde, Esq.
      D. Lance Tillinghast, Esq.




                               22