ERIN WILDER-DOOMES, Magistrate Judge.
Rosetta M. Yarbrough ("Plaintiff") brought this action on behalf of her deceased husband, Eric F. Yarbrough ("Mr. Yarbrough"), under 42 U.S.C. § 405(g) for judicial review of the decision of Carolyn W. Colvin, acting Commissioner of Social Security (the "Commissioner"), denying Mr. Yarbrough's request to reopen the adjudication of his March 15, 2013 application for Title II disability insurance benefits and denying Mr. Yarbrough's second and third applications for disability insurance benefits, filed on August 1, 2014 and November 3, 2014, respectively, based on the doctrines of res judicata and administrative finality.
On November 14, 2016, the Commissioner filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(1), asserting that this Court lacks subject matter jurisdiction over Plaintiff's Complaint, which seeks judicial review of the Commissioner's decision denying Mr. Yarbrough's petition to reopen the adjudication on his first application for disability benefits and denying Mr. Yarbrough's second and third applications for disability benefits based upon res judicata and administrative finality.
On March 15, 2013, Mr. Yarbrough filed a Title II application for disability insurance benefits, alleging disability beginning on February 3, 2012 due to pancreatitis and liver disease.
On August 1, 2014, Mr. Yarbrough filed a second application for Title II disability benefits, alleging disability since June 1, 2012.
On August 20, 2015, ALJ Gerardo Perez ("ALJ Perez") issued an unfavorable decision denying Mr. Yarbrough's request to reopen the adjudication on his first application for disability benefits and denying Mr. Yarbrough's second and third applications for disability benefits based on the doctrines of res judicata and administrative finality.
ALJ Perez ultimately denied Mr. Yarbrough's request to reopen the May 20, 2014 decision denying his first application for disability benefits, reasoning that: (1) the Appeals Council reviewed the May 20, 2014 decision and found no error warranting remand; (2) if Mr. Yarbrough/his counsel disagreed with the May 20, 2014 decision, they should have filed an appeal in federal district court within 60 days; because they failed to seek judicial review, the decision became administratively binding and final; and (3) ALJ Perez did not believe that he had the authority to overturn the decision of the Appeals Council.
To the extent that Mr. Yarbrough's second and third applications for disability benefits were treated as new claims, ALJ Perez concluded that no new and material evidence had been submitted and that the second and third applications involved the same facts and the same issues that were ruled upon in connection with Mr. Yarbrough's first application for disability benefits.
On September 10, 2015, Mr. Yarbrough's counsel appealed ALJ Perez's August 20, 2015 decision.
On April 14, 2016, Plaintiff filed a Complaint in this Court, seeking judicial review of ALJ Perez's August 20, 2015 decision denying the request to reopen the May 20, 2014 decision on Mr. Yarbrough's first application for disability benefits and denying Mr. Yarbrough's second and third applications for disability benefits based on the doctrines of res judicata and administrative finality.
Plaintiff further asserts that ALJ Perez committed legal error by denying Mr. Yarbrough's second and third applications for disability benefits based upon the doctrines of res judicata and administrative finality because Plaintiff had provided new and material evidence from 2014 and 2015 that showed Mr. Yarbrough had a Listed Impairment for a twelve-month period from March 2013 through April 2014.
On November 14, 2016, the Commissioner filed the instant Motion to Dismiss under Fed. R. Civ. P. 12(b)(1), asserting that this Court lacks subject matter jurisdiction to review the August 20, 2015 decision denying Mr. Yarbrough's request to reopen his prior application for disability benefits.
In opposition, Plaintiff asserts this Court has subject matter jurisdiction over her appeal because ALJ Perez's August 20, 2015 decision not to reopen the prior decision on Mr. Yarbrough's first application for disability benefits constitutes legal error, since the February 13, 2014 administrative hearing violated Mr. Yarbrough's due process rights.
In reply, the Commissioner maintains that the February 13, 2014 administrative hearing did not violate Mr. Yarbrough's due process rights.
In her Memorandum in Support of Appeal, Plaintiff asserts that ALJ Perez erred by refusing to reopen ALJ Anderson's May 20, 2014 decision denying Mr. Yarbrough's first application for disability benefits because the May 20, 2014 decision was erroneous on its face and because the February 13, 2014 administrative hearing violated Mr. Yarbrough's due process rights.
As the Supreme Court explained, "[A]n interpretation that would allow a claimant judicial review simply by filing and being denied a petition to reopen his claim would frustrate the congressional purpose, plainly evidenced in [§ 405(g)], to impose a 60-day limitation upon judicial review of the Secretary's final decision on the initial claim for benefits." Sanders, 430 U.S. at 108, 97 S.Ct. at 986 (citing 20 C.F.R. § 404.951 (1976)). "Congress' determination so to limit judicial review to the original decision denying benefits is a policy choice obviously designed to forestall repetitive or belated litigation of stale eligibility claims. Our duty, of course, is to respect that choice." Id. Thus, federal courts generally lack subject matter jurisdiction over claims seeking review of the decision denying a request to reopen the adjudication of a prior application for disability benefits. Sanders, 430 U.S. at 108, 97 S.Ct. at 986.
However, the decision not to reopen the adjudication of a prior application for disability benefits is subject to judicial review if "that refusal is challenged on constitutional grounds." Howard v. Califano, 590 F.2d 137, 138 (5th Cir. 1979) (citing Sanders, 430 U.S. 99, 97 S.Ct. 980); See, Atwell v. Commissioner of Social Sec. Admin., CIV.A. No. 13-64-JWD-RLB, 2015 WL 757601 (M.D. La. Feb. 23, 2015) (same). The Eleventh Circuit has interpreted Sanders to mean that, "A constitutional claim relating to the first application is insufficient to confer subject matter jurisdiction over this appeal of the reopening decision. The constitutional issue must concern the proceeding at which the decision not to reopen was made. Otherwise, constitutional claims arising out of an administrative proceeding could be preserved indefinitely through requests to reopen." Cherry v. Heckler, 760 F.2d 1186, 1190 n.4 (11th Cir. 1985). Thus, while the claimant in Cherry had alleged that she was deprived of a fair hearing on her first application for benefits, her second application and her request for reopening the prior decision, the court concluded that the allegations regarding her first application were not properly before the court because she failed to appeal the Secretary's final decision regarding that application. Id. at 1190 n.3.
At least one court in this Circuit has similarly concluded that under Sanders, the constitutional challenge must concern the decision not to reopen a prior application for disability benefits, rather than the original decision on the first application for benefits. In Twiggs v. Shalala, the plaintiff filed seven applications for disability benefits, the last of which was treated as a request to reopen the decision on the sixth application, which was an adjudication of plaintiff's allegations regarding his mental and physical limitations. CIV.A. No. 93-3472, 1994 WL 261815, at *2 (E.D. La. June 6, 1994). Like in the instant case, the plaintiff in Twiggs claimed that his due process rights were violated during the administrative proceedings on his sixth application because, among other reasons, the plaintiff did not have counsel and he did not have the mental capabilities to understand the technicalities in not appealing the decision. 1994 WL 261815, at *3. However, the district court held, "Neither in his complaint nor in his memorandum has plaintiff mounted a constitutional challenge to the decision not to reopen. He merely posits error on the part of the Secretary in not finding that his due process rights had been violated." Id. (emphasis added). The Twiggs court ultimately concluded that it lacked subject matter jurisdiction over plaintiff's appeal because plaintiff sought review of the decision regarding whether his prior claims should be reopened and, "Such refusals to reopen and determinations that a claim is res judicata are not reviewable. The court below correctly dismissed for want of jurisdiction." Id. (quoting Hensley v. Califano, 601 F.2d 216 (5th Cir. 1979)).
Other courts have reached the same conclusion. In Rodriguez Flores v. Apfel, the district court held that:
28 F.Supp.2d 67, 70 (D.P.R 1998). The court in Rodriguez Flores ultimately held that, "Since Rodriguez has failed to satisfy said requirement in the present controversy and failed to timely appeal her prior claims, any errors prompting the denial of Rodriguez's prior applications are not properly before this Court." Id. In Leaks for Leaks v. Sullivan, the district court similarly held that a constitutional challenge to the Commissioner's 1983 decision on plaintiff's prior applications for disability benefits was insufficient to confer subject matter jurisdiction over plaintiff's claims regarding the Commissioner's refusal to reopen her prior applications. 3:90-cv-61-GET, 1991 WL 65543, at *2 (N.D. Ga. Feb. 13, 1991). The Sullivan court rejected the plaintiff's argument that the refusal to reopen constituted a further denial of plaintiff's due process rights because of the alleged errors in the initial decision, explaining that, "If, in fact, a constitutional violation occurred in 1983, plaintiff was given notice of her right to appeal and yet no appeal was pursued. Independent of the alleged constitutional violation in 1983, the plaintiff has not shown that the ALJ's 1988 decision to not reopen this unappealed decision, or the unappealed prior decisions, violated her constitutional rights." Id.
Here, Plaintiff seeks review of ALJ Perez's refusal to reopen ALJ Anderson's May 20, 2014 decision denying Mr. Yarbrough's first application for disability benefits. Because that determination does not constitute a "final decision" under 42 U.S.C. § 405(g), this Court lacks subject matter jurisdiction over Plaintiff's first assignment of error unless Plaintiff has raised a colorable constitutional claim regarding ALJ Perez's August 20, 2015 decision. To the extent Plaintiff challenges the constitutionality of the administrative hearing held by ALJ Anderson on February 13, 2014 regarding Mr. Yarbrough's first application for disability benefits, Plaintiff has not shown that the alleged constitutional violation pertains to ALJ Perez's August 20, 2015 decision denying Mr. Yarbrough's request to reopen the prior adjudication. As discussed above, federal courts generally lack subject matter jurisdiction over claims seeking review of the decision denying a request to reopen the adjudication of a prior application for disability benefits. Sanders, 430 U.S. at 108, 97 S.Ct. at 986. Further, "This is not one of those rare instances where the Secretary's denial of a petition to reopen is challenged on constitutional grounds." Id. Instead, Plaintiff asserts that ALJ Perez committed legal error in his August 20, 2015 decision by not reopening the May 20, 2014 decision regarding Mr. Yarbrough's first application for disability benefits because the 2014 decision is erroneous on its face.
To the extent Plaintiff alleges that ALJ Perez erred by concluding that Mr. Yarbrough failed to present new and material evidence to warrant reopening Judge Anderson's May 20, 2014 decision, Plaintiff's argument lacks merit, "as § 405(g) does not `authorize judicial review of alleged abuses of agency discretion in refusing to reopen claims' or the application of res judicata." Key v. Colvin, CIV.A. No. 15-03-SDD-RLB, 2015 WL 6501018, at *3 (M.D. La. Sept. 23, 2015) (quoting Sanders, 430 U.S. at 107-08) (federal courts do not have jurisdiction to review the denial of a petition to reopen a claim as this would frustrate the congressional purpose of limited judicial review under the Act). In Mitchell v. Bowen, the Eastern District of Louisiana similarly concluded that it could not "reconsider the Secretary's carefully rendered decision that no new and material evidence has been furnished, and that no clerical error exists." CIV.A. No. 88-0703, 1988 WL 125444, at *3 (E.D. La. Nov. 22, 1988). The Mitchell court explained that, "Unlike the Cherry case where the court found that consideration of the new evidence could have changed the administrative outcome, plaintiff has not furnished such material evidence." Id. (citing Cherry v. Heckler, 760 F.2d 1186 (11th Cir. 1985)). As in Mitchell, Plaintiff has not shown that Mr. Yarbrough submitted new and material evidence regarding his first application for benefits, the consideration of which could have changed the outcome of ALJ Perez's August 20, 2015 decision.
More importantly, however, Mr. Yarbrough did not raise a constitutional challenge to ALJ Anderson's May 20, 2014 decision during the administrative hearing held on July 23, 2015 before ALJ Perez. Thus, it does not appear that Plaintiff is alleging that ALJ Perez's August 20, 2015 decision constitutes a continuation of any constitutional violations allegedly committed by ALJ Anderson at the February 13, 2014 administrative hearing, nor would Plaintiff have a basis to do so under these facts. Rather, Plaintiff argues that ALJ Perez erred by not reopening the May 20, 2014 decision because the 2014 decision is erroneous on its face based upon ALJ Anderson's failure to consider certain medical evidence in the record that allegedly showed Mr. Yarbrough met the criteria for a Listed Impairment. As such, Plaintiff has not raised a constitutional challenge to the August 20, 2015 decision denying Mr. Yarbrough's request to reopen the adjudication on his first application for disability benefits.
Although Plaintiff alleges that ALJ Anderson violated Mr. Yarbrough's due process rights at the February 13, 2014 administrative hearing by failing to develop and full and fair record, failing her duty of inquiry by curtailing Mr. Yarbrough's testimony and that of the Plaintiff and by failing to consult with a medical expert to determine whether Mr. Yarbrough's condition met or equaled a Listed Impairment, such claims should have been raised in an appeal from the October 3, 2014 decision of the Appeals Council denying review of ALJ Anderson's May 20, 2014 decision. While Mr. Yarbrough could have sought judicial review of the May 20, 2014, Mr. Yarbrough chose instead to file a second and third application for disability benefits covering the same issues, i.e. disability prior to June 30, 2013, the date he was last insured. Because Mr. Yarbrough chose not to file an appeal, the May 20, 2014 decision became administratively final and this Court lacks subject matter jurisdiction over Plaintiff's constitutional challenge to that decision.
Even though Mr. Yarbrough was a pro se claimant when the Appeals Council denied his request for review of the May 20, 2014 decision, Mr. Yarbrough retained counsel on October 15, 2014, twelve days after the Appeals Court issued its decision on October 3, 2014, and well before the end of the 60-day appeal period. Plaintiff's counsel, however, elected not to seek judicial review of the October 3, 2014 Appeals Council decision, thereby waiving Plaintiff's constitutional claims regarding the administrative hearing underlying that decision.
As previously discussed, the Supreme Court addressed this specific situation in Sanders and explained that, "[A]n interpretation that would allow a claimant judicial review simply by filing and being denied a petition to reopen his claim would frustrate the congressional purpose, plainly evidenced in [§ 405(g)], to impose a 60-day limitation upon judicial review of the Secretary's final decision on the initial claim for benefits." 430 U.S. at 108, 97 S.Ct. at 986 (citing 20 C.F.R. § 404.951 (1976)). Further, the Fifth Circuit has held that, "Sanders provides that `a claimant is not given a guarantee of a second hearing' when he waives previous opportunities for review." Riecke v. Barnhart, 184 Fed. App'x 454, 456 (5th Cir. 2006) (quoting Matos v. Sec'y of Health, Educ. & Welfare, 581 F.2d 282, 285 (1st Cir. 1978)). In addition, "The Supreme Court has unequivocally interpreted the Social Security Act to preclude judicial review of a decision not to reopen a prior claim except where denial of the reopening request raises `colorable constitutional issues that are not inextricably intertwined with [the] claim for benefits.'" Johnson v. Astrue, CIV.A. No. 08-0444, 2009 WL 2496021, at *1 (W.D. La. Aug. 11, 2009) (quoting Sanders, 430 U.S. at 99, 97 S.Ct. 980) (emphasis added). Because Plaintiff's constitutional claim concerns the May 20, 2014 decision regarding Mr. Yarbrough's first application for disability benefits, a matter which became administratively final in December of 2014, this Court lacks subject matter jurisdiction over Plaintiff's claim that ALJ Perez erred by refusing to reopen the May 20, 2014 decision on Mr. Yarbrough's first application for disability benefits.
Plaintiff also asserts that ALJ Perez committed legal error by denying Mr. Yarbrough's second and third applications for disability benefits based upon the doctrines of res judicata and administrative finality. As previously discussed, the Supreme Court has held that the Social Security Act, "clearly limits judicial review to a particular type of agency action, a `final decision of the Secretary made after a hearing.'" Sanders, 430 U.S. at 108, 97 S.Ct. at 986. "A refusal to reopen a previously adjudicated claim or a dismissal of a new claim based on res judicata, however, are not considered a `final decision' within the meaning of the Act." Key v. Colvin, CIV.A. No. 15-03-SDD-RLB, 2015 WL 6501018, at *2 (M.D. La. Sept. 23, 2015) (quoting Sanders, 430 U.S. at 108, 97 S.Ct. at 986) (emphasis added); See, Robertson v. Bowen, 803 F.2d 808, 810 (5th Cir. 1986) (dismissal of a new claim based on res judicata is not a final decision subject to judicial review); Ellis v. Schweiker, 662 F.2d 419, 419-20 (5th Cir. 1981) (noting that the Fifth Circuit has applied the rule of Sanders to cases "in which the secretary denied benefits on grounds of res judicata").
As the foregoing case law shows, the Court generally lacks subject matter jurisdiction to review an ALJ's decision denying an application for disability benefits based upon res judicata. See, Key, CIV. A. No. 15-03-SDD-RLB, 2015 WL 6501018, at *2 (citing Hensley v. Califano, 601 F.2d 216, 216 (5th Cir. 1979) ("refusals to reopen and determinations that a claim is res judicata are not reviewable" by federal courts). However, the Fifth Circuit has recognized that, "An ALJ's dismissal of a claimant's case on res judicata grounds is unreviewable absent a `colorable constitutional claim.'" Lemelle v. Shalala, 37 F.3d 631 (5th Cir. 1994) (quoting Brandyburg v. Sullivan, 959 F.2d 555, 561 (5th Cir. 1992)). The Fifth Circuit has also recognized that without a constitutional claim for reopening a case, "jurisdiction in the district court did not exist unless the case was actually reopened by the administration." Powell v. Shalala, 41 F.3d 663, at *2 (5th Cir. 1994)
For the reasons stated in the prior section, Plaintiff has not raised a constitutional challenge to ALJ Perez's August 20, 2015 decision denying Mr. Yarbrough's second and third applications for disability benefits. To the extent Plaintiff is alleging that the Appeals Council's review of the "new and material evidence" submitted with Mr. Yarbrough's second and third applications for disability benefits constituted a de facto reopening of ALJ Anderson's May 20, 2014 decision, that argument also lacks merit. As explained by this Court in Key v. Colvin, "A constructive reopening may occur when the Commissioner reviews a claimant's entire record and renders a new decision on the merits of his or her disability claim." CIV.A. No. 15-03-SDD-RLB, 2015 WL 6501018, at *4 (citing Atwell v. Commissioner of Soc. Sec., 2015 WL 757601, at *4 (M.D. La. Feb. 23, 2015)).
Here, as in Key, the Appeals Council did nothing more than conduct a threshold inquiry of the newly submitted evidence for the limited purpose of determining whether it was material to warrant a reopening of the May 20, 2014 adjudication. Id.
For the reasons set forth herein, the Commissioner's Motion to Dismiss
20 C.F.R. § 404.982 (emphasis added). Section 404.911 provides, in pertinent part, the following:
20 C.F.R. § 404.911(a). Thus, the fact that Plaintiff's counsel "did not receive the record from Plaintiff's prior claim before the expiration of the federal filing deadline, and thus was not able to ascertain ALJ Anderson's clear error," and counsel's assertion that, "Plaintiff had a physical condition which limited both his mental and physical ability to understand and pursue his legal action" may have constituted "good cause" under 20 C.F.R. § 404.982 to grant Plaintiff an extension of time to seek judicial review of the Appeals Council's October 3, 2014 decision. See, R. Doc. 9 at pp. 19-20.
