REPORT AND RECOMMENDATION

ELIZABETH M. TIMOTHY, Magistrate Judge.

This case has been referred to the undersigned magistrate judge pursuant to the authority of 28 U.S.C. § 636(b) and Local Rules 72.1(A), 72.2(D) and 72.3 of this court relating to review of administrative determinations under the Social Security Act ("Act") and related statutes, 42 U.S.C. § 401, et seq. It is now before the court pursuant to 42 U.S.C. § 405(g) of the Act for review of a determination of the Commissioner of Social Security ("Commissioner") denying Plaintiff's "current (or third) application" for disability insurance benefits ("DIB") under Title II of the Act, 42 U.S.C. §§ 401-34, filed by Plaintiff on February 27, 2007. Upon review of the record before this court, it is the opinion of the undersigned that the decision of the Commissioner should be affirmed.

I. PROCEDURAL HISTORY

Plaintiff filed two Title II applications prior to the current application. He filed the first one on April 9, 1997, and alleged therein disability as of January 6, 1986, due to a workplace back injury (Tr. 16, 35).1 After this application was denied initially and upon review, Plaintiff requested a hearing before an administrative law judge ("ALJ") (Tr. 35). On October 14, 1999, following a hearing, the ALJ issued a decision in which he found that Plaintiff was last insured for DIB purposes on March 31, 1992 (thus, as this court is well aware, Plaintiff would have to prove that his disability began before this date last insured ("DLI")) (Tr. 35, 38). The ALJ further found that Plaintiff was not disabled because he was able to perform a significant number of jobs existing in the national economy prior to his DLI, despite his physical injuries and associated limitations (see Tr. 39, 43). Plaintiff, who was not represented by counsel in connection with the first application, did not seek further review of the ALJ's decision (see Tr. 16).

Plaintiff filed a second Title II application on February 11, 2004, more than four years after the ALJ issued an unfavorable decision as to the first application, and he alleged therein the same disability onset date as before, that is, January 1, 1986 (Tr. 16, 65-67). The second application was denied at the initial level of determination on February 28, 2004, on the basis of res judicata, and not pursued further by Plaintiff (see Tr. 16).2

Three years later, on February 27, 2007, Plaintiff filed the current application for DIB and alleged therein a disability onset date of February 1, 1986, which is one month later than the onset date alleged in his previous applications (id.). The third application was denied initially on the same ground as Plaintiff's second application (that is, res judicata) (see Tr. 53),3 and on April 9, 2007—through counsel—Plaintiff filed a request for reconsideration (Tr. 56). Plaintiff's claim was denied at the reconsideration level of determination, on the same ground as before, and Plaintiff's counsel filed a written request for a hearing before an ALJ (Tr. 16-17, 57; see also Tr. 58-59). A limited hearing was held on January 8, 2009 (see Tr. 735-41), during which the ALJ advised Plaintiff's counsel that she could submit additional evidence and a memorandum outlining the reasons she believed Plaintiff's claim for DIB was not barred by res judicata (see id.; see also Tr. 19). On February 4, 2009, counsel submitted a letter/memorandum to the ALJ and asserted therein: (1) that "new evidence" regarding Plaintiff's condition foreclosed the application of res judicata4; and (2) that good cause existed for Plaintiff's failure to previously appeal the denial of his claim (or otherwise exhaust his administrative remedies) because "he lacked the mental ability to understand the procedures for requesting review" (see Tr. 131). On March 13, 2009, the ALJ issued a decision in which he found that Plaintiff's third application was barred by res judicata because the decision denying Plaintiff's first application, dated October 14, 1999, involved the same facts and issues as Plaintiff's current application (Tr. 16-22, 32-45). On May 17, 2011, the Appeals Council of the Social Security Administration denied Plaintiff's request for review (Tr. 6-8).

In the instant appeal, Plaintiff essentially claims that the ALJ erred in denying his third application based on res judicata, although he also raises various, related sub-claims (see Doc. 10). The Commissioner contends the ALJ evaluated Plaintiff's claim(s) for DIB in accordance with applicable statutes and regulations, and further, that the Commissioner's decision is supported by substantial evidence on the record as a whole and should be affirmed (see Doc. 13).

III. DISCUSSION

A. Subject Matter Jurisdiction

The extent of this court's subject matter jurisdiction in this case is governed by 42 U.S.C. § 405(g), which provides a limited grant of authority to federal district courts to review decisions of the Commissioner. Specifically, a disappointed Social Security disability benefits claimant may only obtain judicial review of the Commissioner's decision once the decision has become "final." See Califano v. Sanders, 430 U.S. 99, 108 (1977). Congress did not define the contours of what constitutes a "final decision" under the Act. Instead, Congress expressly left it to the discretion of the Social Security Administration to flesh out its meaning through the promulgation of regulations. Weinberger v. Salfi, 422 U.S. 749, 766 (1975).

Here, the relevant regulations provide that, in the absence of a showing of good cause, where an individual's prior application for benefits has been denied, and—where, as here—the individual failed to exhaust available administrative remedies as to that denial, the unfavorable decision becomes final and binding. 20 C.F.R. §§ 404.987-.989. See also Sims v. Apfel, 530 U.S. 103, 104-05 (2000) ("A person whose claim for Social Security benefits is denied by an . . . []ALJ[] must in most cases before seeking judicial review of that denial, request that the Social Security Appeals Council review his claim). The regulations further provide, though, that "a determination or a decision . . . which is otherwise final and binding may be reopened and revised by [the Commissioner]" subject to certain time limitations.5 However, "once a decision becomes administratively final, the [Commissioner's] decision to reopen a claim is purely discretionary" and, therefore, his refusal to reopen a claim is not a "`final' decision subject to judicial review." Taylor v. Heckler, 765 F.2d 872, 877 (9th Cir. 1985); see also Cherry v. Heckler, 760 F.2d 1186, 1189 (11th Cir. 1985) (refusing to review ALJ's decision not to reopen a previous application in the absence of a constitutional question); Krumpelman v. Heckler, 767 F.2d 586, 588 (9th Cir. 1985) ("District courts . . . have no jurisdiction to review a refusal to re-open a claim for disability benefits or a determination that such a claim is res judicata.").

As noted supra, Plaintiff is only eligible to receive benefits under Title II if he was "disabled" prior to March 31, 1992, his DLI. The determination that Plaintiff was "not disabled" prior to his DLI became "final" when Plaintiff failed to seek review by the Appeals Council of the ALJ's decision dated October 14, 1999, denying his first claim for DIB. See Sims, 530 U.S. at 104-05; see also 20 C.F.R. § 404.900(a) (explaining the administrative review process). Additionally, there is no evidence that Plaintiff attempted to reopen the October 1999 decision within the four-year window, as required by 20 C.F.R. § 404.988(b), since he did not file his second application for DIB until February 2004.6 Therefore, his second and third applications for DIB appear to be time-barred, in addition to being barred based by res judicata. However, because the Commissioner denied the claims based on res judicata, this court's review must focus on that determination. As previously noted, however, this court has no jurisdiction to review a determination of res judicata because such a determination is not a "final" decision. Accordingly, this court is without subject matter to review the Commissioner's determination that Plaintiff's current application for DIB is barred by the doctrine of res judicata.

B. Whether the Finding of Res Judicata May Otherwise be Reviewed

Apparently recognizing that this court does not have subject matter jurisdiction to review the Commissioner's res judicata determination, Plaintiff instead correctly argues that an administrative finding of res judicata is reviewable if a claimant raises a colorable constitutional claim. This is so because administrative proceedings are unsuitable for the resolution of constitutional issues, and thus "when constitutional questions are in issue, the availability of judicial review is presumed." Califano, 430 U.S. at 109. Thus, although this court has no subject matter jurisdiction to entertain Plaintiff's complaint to the extent he claims he is disabled and eligible for DIB, this court does have jurisdiction to entertain Plaintiff's complaint to the extent he has raised a colorable constitutional claim related to the earlier denial of benefits. See id. (no subject matter jurisdiction where "Respondent [sought] only an additional opportunity to establish that he satisfies the Social Security Act's eligibility standards for disability benefits," and his case was "not one of those rare instances where the [Commissioner's] denial of a petition to reopen is challenged on constitutional grounds"). In the Eleventh Circuit, a plaintiff raises a colorable constitutional claim where he has shown that: "(1) he suffers from a medically-documented mental illness which serves as the basis for his disability claim; (2) on his first application he was without the assistance of counsel or other suitable representation; and (3) he cannot assert a new claim for benefits because he now lacks insured status." Elchediak v. Heckler, 750 F.2d 892, 895 (11th Cir. 1985). If Plaintiff satisfies each of the three Elchediak prongs, this court may remand his case to the Commissioner with instructions to determine whether Plaintiff's mental illness prevented him from understanding and pursuing his administrative remedies following the denial of his first application for benefits. See id., 750 F.2d at 894.

Here, relying upon Elchediak, Plaintiff contends he has raised a colorable constitutional claim because he has a documented mental impairment that precluded him from navigating through the various levels of administrative review and from understanding the administrative remedies available to him following the denial of his first claim for DIB in October 19997 (see Doc. 10 at 6). In support of his contention, Plaintiff points to the following evidence in the record (see Doc. 10 at 6-7):

This evidence, Plaintiff asserts, documents a mental impairment "consisting largely of [Plaintiff's] illiteracy and lack of education, but also evidenced through the interactions with his medical providers" (Doc. 10 at 6). Plaintiff's assertion, however, is unpersuasive.

First, "illiteracy and lack of education" do not establish a mental disorder; they are vocational factors. See 20 C.F.R § 404.1564 (education is a vocational factor and is considered in determining a claimant's ability to meet vocational requirements, including reasoning, mathematics, and communication); see also Wolfe v. Chater, 86 F.3d 1072, 1077-78 (11th Cir. 1996) (while mental retardation may be considered a non-exertional impairment that may significantly limit a claimant's basic work skills or otherwise prevent the claimant from performing a full range of employment a particular level of exertion, illiteracy is not such a non-exertional impairment). Moreover, the ALJ's 1999 decision specifically addresses Plaintiff's seventh grade education and illiteracy in assessing Plaintiff's ability to perform other available work (Tr. 38, 43-44).8

Second, having carefully reviewed those portions of the record identified by Plaintiff (supra, at numbers 1-5),9 the undersigned concludes that Plaintiff has not even come close to establishing the first prong of Elchediak. While this conclusion may not need elucidation, the undersigned nevertheless makes the following observations regarding each portion of the record identified by Plaintiff:

5. On January 16, 1990, Plaintiff was evaluated by Lawrence J. Gilgun, Ph.D., in connection with his vocational rehabilitation program (see Tr. 160-61). Dr. Gilgun administered intelligence quotient ("IQ") tests, the results of which suggest Plaintiff functioned in the "borderline mentally defective range" (Tr. 160, reflecting IQ scores of 74 (verbal), 81 (performance), and 77 (full scale)). None of these scores satisfy the criteria of the listing for mental retardation. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.05C (requiring a valid IQ score below 71). Moreover, although Plaintiff claimed to have profound limitations in reading and mathematics, and he told Dr. Gilgun he could not spell even simple words like "cat," Dr. Gilgun did not believe Plaintiff was as limited as he claimed, and he did not think Plaintiff's IQ scores were accurate reflections of his abilities (Tr. 161). Dr. Gilgun wrote, "To be quite frank, I don't necessarily believe" Plaintiff's IQ scores (id.). Dr. Gilgun noted that Plaintiff had been "very disgruntled and just refused to cooperate" toward the end of testing, and further, that Plaintiff had obviously exaggerated his academic problems (Tr. 20, 161). As an example, Dr. Gilgun pointed out that Plaintiff claimed he could not add 7 and 2, but in a later portion of testing Plaintiff was able to adequately perform simple addition and subtraction (Tr. 161).10

The foregoing discussion demonstrates that the facts in the instant case are substantially distinguishable from those in Elchediak, wherein the claimant alleged disability due to paranoid schizophrenia ("PS"), all the available medical evidence confirmed that he suffered from PS, and his PS was severe enough to require hospitalization on several occasions, including an eighteen-day hospitalization just two months prior to his receiving notice that his initial application had been denied. 750 F.2d at 893-94. On those facts, the Eleventh Circuit concluded that Mr. Elchediak's case required remand to the Commissioner to determine whether his PS prevented him from understanding and pursuing his administrative remedies following the denial of his first application for benefits. Id. at 894. Here, the record reflects that Plaintiff discontinued working—and claimed disability—due to an on-the-job back injury and resulting pain and physical limitations (see, e.g., Tr. 38-39). Additionally, the evidence Plaintiff has pointed to is woefully insufficient to establish the first Elchediak prong. Accordingly, remand is not required in this case. See 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"); see also Stewart v. Astrue, No. 5:08cv90-Oc-10GRJ, 2008 WL 3982690, at *3 (M.D. Fla. Aug. 26, 2008) (remand not warranted where, among other factors, "the record suggests that it was the injuries Plaintiff incurred during a job-related accident—and not any aspect of Plaintiff's mental health—that served as the primary basis for Plaintiff's . . . application for disability benefits," and "there [wa]s no evidence that the issue of Plaintiff's mental health was even brought to the attention of the Commissioner at the time of his prior application")). Cf. Woods v. Apfel, No. Civ.A. 99-0640-P-S, 2000 WL 1367986, at *1-*4 (S.D. Ala. Aug. 18, 2000) (first prong of Elchediak satisfied where ALJ found that claimant had the severe impairment of a mentally deficient range of intelligence (based in part on IQ scores of 64, 66, and 67) and found that Plaintiff was entitled to supplemental security income based on his severe impairments, including his mental impairment).

The burden is on Plaintiff to affirmatively demonstrate a sufficient basis for a constitutional claim, and a mere allegation that his constitutional rights have been violated is not enough. Colon v. Sec'y of Health & Human Serv., 587 F.Supp. 502, 503 (D.P.R. 1984) (conclusory allegations that constitutional rights were violated insufficient to confer subject matter jurisdiction); Lumsden v. Califano, 479 F.Supp. 839 (D. Ariz. 1979) (plaintiff's claim must be something more than a request for an additional opportunity to establish that he or she is disabled); see also Jones v. Dep't of Health & Human Serv., 941 F.2d 1529, 1533 (11th Cir. 1991) (holding that plaintiff's failure to provide supporting evidence of constitutional evidence was fatal to constitutional claim). Plaintiff has clearly failed to meet his burden here, and because no constitutional claim has been established the court has no subject matter over Plaintiff's complaint.

C. Plaintiff's Remaining Contentions

Plaintiff appears to contend the ALJ erred in failing to conduct a full administrative hearing in connection with Plaintiff's third application for DIB, and by determining that the "new evidence" Plaintiff submitted in connection with the third application was "not new and material to the determination of disability," without stating which exhibits were considered at the time of the October 1999 denial, without having access to Plaintiff's testimony during the first administrative hearing, and without permitting Plaintiff to testify at the limited hearing held in January 2009 (Doc. 10 at 3-4). Plaintiff also contends that portions of the 1999 decision are undecipherable, "thus prohibiting comparison of the previous application to the current application for a full and fair determination of whether new and material evidence has been submitted" (id. at 4).11 Finally, Plaintiff contends the ALJ was biased, as evidenced by the "prejudicial treatment of [Plaintiff's] request to reopen," because he is the same ALJ that issued the unfavorable 1999 decision (id.). None of these contentions entitle Plaintiff to relief.

As previously discussed, this court has no subject matter jurisdiction to review the Commissioner's res judicata determination unless Plaintiff raises a colorable constitutional claim. The majority of Plaintiff's contentions clearly raise no such colorable claim and need not be further discussed. Although three of Plaintiff's contentions—those relating to the submission of "new evidence," the ALJ's alleged failure to permit Plaintiff to testify, and the ALJ's alleged bias—also do not appear to raise a colorable claim, they are briefly discussed here to demonstrate that they form no basis for relief. The ALJ carefully considered the "new evidence" submitted by Plaintiff and concluded that the evidence generally relates to a time frame beyond Plaintiff's DLI (with the exception of Dr. Gilgun's report, which—as previously discussed—in no way undermines the ALJ's 1999 decision or establishes a mental impairment) (see Tr. 20-21).12 Moreover, in considering the new evidence the ALJ did not reopen or reconsider the merits of Plaintiff's previously denied application, as Plaintiff concedes (Doc. 10 at 3). See, e.g., Brown v. Sullivan, 921 F.2d 1233, 1237 (11th Cir. 1991) (stating that, in determining whether res judicata applies, "if the [Commissioner] merely considers newly proffered evidence without reconsidering the merits of the previously denied application, then he has not reopened that application"); Cherry, 760 F.2d at 1189 (11th Cir. 1985) (noting that the Commissioner "must in fairness look far enough into the proffered factual and legal support [for the first application] to determine whether it is the same claim, and if so, whether it should nevertheless be reopened as a discretionary matter" (quotation marks omitted)). Thus, the 1999 decision was never reopened and remains the "final" decision of the Commissioner.

Additionally, the transcript of the January 2009 hearing reflects that Plaintiff was represented by counsel, his counsel did not indicate to the ALJ that Plaintiff wished to testify, and the ALJ advised counsel she could submit materials to him following the limited hearing (see Tr. 735-41). Thus, to the extent the ALJ's actions at the hearing can be construed as "failing to permit Plaintiff to testify," there is no reason why Plaintiff could not have submitted an affidavit or similar statement after the hearing, in which his purported testimony was summarized.

Finally, Plaintiff's allegation that the ALJ was biased against him warrants no relief. First, the allegation is wholly conclusory. See, e.g., Liteky v. United States, 510 U.S. 540, 551 (1994) (Plaintiff must show that the ALJ's behavior, in the context of the whole case, was "so extreme as to display clear inability to render fair judgment."); see also Withrow v. Larkin, 421 U.S. 35, 47 (1975) (a claim of bias/dishonesty against an ALJ must overcome the "presumption of honesty and integrity in those serving as adjudicators"). Plaintiff has pointed to nothing in the record that demonstrates extreme behavior an any other action by the ALJ to overcome the presumption of honesty. Second, Plaintiff was required to notify the ALJ at his earliest opportunity if he believed the ALJ was biased, see 20 C.F.R § 404.940, which Plaintiff failed to do since he raised the issue of bias for the first time in this court.

IV. CONCLUSION

This court is without subject matter jurisdiction to review the administrative finding of res judicata because Plaintiff has failed to establish a colorable constitutional claim under Elchediak, 750 F.2d at 892. More specifically, Plaintiff has failed to meet his burden of demonstrating that he suffered from a mental illness which interfered with his ability to protect his rights under the Social Security Act. Additionally, Plaintiff has failed to establish any other basis that warrants relief in this action.

Accordingly, it is respectfully RECOMMENDED:

1. That this action be DISMISSED based on a lack of jurisdiction.

2. That the clerk be directed to close this file.