THOMAS B. McCOUN, III, District Judge.
THIS MATTER is before the Court on
A procedural overview of this case proves useful. Plaintiff, proceeding without counsel, applied for disability insurance benefits ("DIB") on November 29, 2007. (Doc. 13 at Ex. 1). Plaintiff's insured status expired on December 31, 2007. His application was denied at the initial level on May 16, 2008. Id. Plaintiff did not appeal that decision. See (Doc. 13 at 1); see also Decl. Herbst (Doc. 12-1, ¶ 4(b)).
Plaintiff, proceeding with counsel, filed another application for DIB on October 30, 2009. Decl. Herbst (Doc. 12-1, ¶ 4(c)). Plaintiff submitted various questionnaires, work histories, and treatment and medication forms. Suppl. Decl. Herbst (Doc. 16, ¶ 3(d)-(k)). Plaintiff alleged disability beginning in March 2004. The claim was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (Doc. 16, Ex. 12 at 4). A hearing before an ALJ was conducted on November 17, 2010. Plaintiff appeared and testified on his own behalf. At the outset, the ALJ addressed Plaintiff's first application for benefits and inquired whether the instant application was barred by res judicata. In response, Plaintiff's counsel moved to reopen the first application and argued res judicata should not apply because (1) the first application was "never taken to hearing," and (2) Plaintiff did not understand the necessity of an appeal because he had difficulty with reading and writing the English language.
Pertinent to the issues on appeal, Plaintiff testified as follows. Plaintiff was fifty-seven years old at the time of the administrative hearing. He completed high school in Italy and came to the United States when he was sixteen years old. For the next twenty-four years, Plaintiff owned an underground sprinkler system and landscaping business. Plaintiff contracted with his customers in English but the contracts were oral and based on handshakes.
The ALJ dismissed Plaintiff's request for hearing on November 19, 2010. In particular, the ALJ explained:
(Doc. 13 at 13-14). Plaintiff requested review of the ALJ's order of dismissal on March 14, 2011.
The Appeals Council dismissed Plaintiff's request for review on August 21, 2012. (Doc. 16, Ex. 14). Specifically, the Appeals Council explained:
The Appeals Council advised Plaintiff that if he disagreed with its decision, he had the right to file a civil action asking for court review of its dismissal of his request for review. The Appeals Council also advised Plaintiff that he had 60 days to file a civil action and the 60 days started from the day after receipt of its letter and order. (Doc. 16, Ex. 14).
On July 20, 2012, even before the Appeals Counsel dismissed the request for review, Plaintiff filed suit in this Court seeking review of the Commissioner's decision "denying plaintiff's application for . . . benefits for lack of disability." Plaintiff asserts he is appealing "a final administrative decision denying plaintiff's claim," and his appeal is timely because it was "commenced within the appropriate time period set forth" in the Appeals Council's decision dated June 18, 2012." In his view, "[t]he conclusions and findings of fact of the defendant are not supported by substantial evidence and are contrary to law and regulation." Plaintiff contends this Court has jurisdiction to review the Commissioner's decision, pursuant to 42 U.S.C. § 405(g). (Doc. 1).
By her Motion (Doc. 12), the Commissioner argues that Plaintiff's Complaint should be dismissed for lack of subject matter jurisdiction, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(h)(3). In particular, Defendant argues that, regardless of any timeliness issues, Plaintiff's claim is not subject to judicial review under 42 U.S.C. § 405(g) because the ALJ dismissed his claim based on res judicata and dismissal on that basis is not a final decision of the Commissioner made after a hearing. Defendant also contends that Plaintiff does not raise a colorable constitutional challenge. (Doc. 12).
In response, Plaintiff contends that the ALJ misapplied the doctrine of res judicata and, as a result, he was denied due process. Relying on Social Security Ruling ("SSR") 91-5p and 20 C.F.R. § 404.911, Plaintiff urges he established good cause for missing the deadline to appeal his initial claim in 2007 because he was unrepresented and he presented evidence of a mental incapacity that prevented him from timely requesting review, i.e., he is Italian and was unable to read and understand the documents denying his claim because they were written in English. As such, Plaintiff urges the Court to deny the Commissioner's Motion. (Doc. 13).
In reply, Defendant maintains that the Court lacks subject matter jurisdiction. While she concedes the Court "may have jurisdiction to entertain Plaintiff's complaint to the extent he has raised a colorable constitutional claim," the Commissioner contends that Plaintiff did not raise a colorable constitutional claim in his Complaint. Further, Defendant notes that Plaintiff offers no evidence to establish he cannot read or understand English beyond his attorney's averment. To the contrary, Defendant asserts the evidence reveals Plaintiff was literate and able to communicate in English, Plaintiff completed written forms that were in English, and although Plaintiff testified he could not read or write in English he admitted that his wife would read to him the documents received from the SSA. In light of these circumstances, which were expressly considered by the ALJ, the Defendant argues that Plaintiff has failed to establish a constitutional claim and thus his Complaint should be dismissed for a lack of subject matter jurisdiction. (Doc. 16).
As indicated, the Commissioner urges the Court to dismiss Plaintiff's Complaint for lack of subject matter jurisdiction, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(h)(3).
To resolve this matter, an overview of the regulatory process in Social Security disability cases is beneficial. The administrative process begins when an initial determination is made about a claimant's entitlement to benefits. 20 C.F.R. §§ 404.900(a)(1), 404.904. If the decision is adverse, the claimant may file a request for reconsideration within 60 days from the receipt of the initial determination. Id. at §§ 404.907, 404.909. If, upon reconsideration, a claimant's request is again denied, he may request a hearing before an ALJ. Id. at §§ 404.930, 404.933. Such a request must be submitted in writing within 60 days after the claimant receives notice of the previous determination or decision. Id. at § 404.933(b). If a claimant fails to do so within the 60-day period, he may ask for more time to make his request. Id. at § 404.933(c). The request for an extension of time must be in writing and it must give the reasons why the request for a hearing was not filed within the stated time period.
In addition to the above, the regulations also authorize an ALJ to dismiss a request for hearing and decline to issue a final decision if the doctrine of res judicata applies and the Commissioner has made a previous decision about the claimant's rights on the same facts and issues, and that previous decision was final. 20 C.F.R. § 404.957(c)(1). "If the [Commissioner] finds res judicata applicable, that finding is generally unreviewable by the federal courts because it is not a `final decision of the [Commissioner] made after a hearing' as required by the Social Security Act for federal jurisdiction." Holland v. Heckler, 764 F.2d 1560, 1562 (11th Cir. 1985). However, an exception to this rule exists if the claimant alleges a colorable constitutional claim. Califano, 430 U.S. at 99; Holland, 764 F.2d at 1562. A claimant raises a colorable constitutional claim where he demonstrates that:
Elchediak v. Heckler, 750 F.2d 892, 895 (11th Cir. 1985).
Upon consideration, I conclude that this Court is without jurisdiction to review Plaintiff's claim and Defendant's Motion should be granted. Here, apparently recognizing that federal courts generally do not have subject matter jurisdiction to review a dismissal based on a finding of res judicata, Plaintiff purports to raise a colorable constitutional claim so that this Court may review such a dismissal. Plaintiff's purported constitutional claim is a due process violation, the basis of which appears to be the ALJ's alleged misapplication of res judicata by finding that: (1) the prior denial determination in 2008 was final; (2) Plaintiff failed to demonstrate the deadline for requesting review of that determination should not be extended because he did not have or allege a mental impairment or that reopening was warranted; and (3) res judicata applied because the same facts and issues are involved in the prior and current claim. According to Plaintiff, these findings are incorrect because he established "good cause" for not timely appealing the initial denial of his prior claim given his inability to read English and thus understand the SSA's written denial of his prior claim and the need to appeal it if dissatisfied. And, because he demonstrated good cause, Plaintiff argues that his prior claim should have been reopened and his instant claim not barred by res judicata. Plaintiff's argument fails. Although Plaintiff was unrepresented on his prior claim in 2007 and he is unable to assert a new claim because his insured status expired before the prior claim was denied in 2008, Plaintiff does not demonstrate or even allege that he suffers from a medically-documented mental illness that served as the basis for his disability claim. Plaintiff's failure to do so is fatal under both Elchediak and SSR 91-5p. An inability to read English is a vocational factor, not an impairment. See Wolfe v. Chater, 86 F.3d 1072, 1078 (11th Cir. 1996) (providing that illiteracy is not a nonexertional impairment); 20 C.F.R. § 404.1564(b)(5) (stating that inability to read English is an educational factor considered in evaluating what work claimant can perform). Further, although Plaintiff testified that he could not read or write in English, he also testified that his wife would read to him the documents received from the SSA. That, coupled with Plaintiff's ability to run his own business for twenty-plus years with English speaking customers, militates against his attempt to establish a constitutional violation. See Rosario v. Schweiker, 550 F.Supp. 118, 120 (E.D. N.Y. 1982) (finding no constitutional issue presented where claimant was unable to read English and failed to respond to a notice because such was readily remediable by obtaining an accurate translation at a local SSA office); see also Elchediak, 750 F.2d at 894 ("we do not intimate that every claimant who alleges that a mental problem or disorder prevented them from understanding and pursuing administrative remedies will have raised a constitutional issue"). In light of these circumstances, which were expressly before the ALJ, Plaintiff has failed to establish a constitutional claim. Thus, because a res judicata determination is not appealable and Plaintiff fails to raise a constitutional claim, this Court is without subject matter jurisdiction.
Accordingly, for the reasons set forth above, it is
