Robbins v. SSA CV-97-186-M 12/19/97 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Albin P. Robbins, Sr., Plaintiff,

v. Civil No. 97-186-M

Commissioner, Social Security Administration, Defendant.

O R D E R

Pursuant to

(g) of the Social Security Act,

plaintiff Albin P. Robbins, Sr., appeals a final decision of the

Social Security Administration denying his claim for disability

benefits. Presently before the court is the Commissioner's

motion to dismiss the complaint for lack of subject matter

jurisdiction, see Rule 12(b)(1), Fed. R. Civ. P., and for failure

to state a claim upon which relief can be granted, see Rule

1 2 (b)(6), Fed. R. Civ. P.

BACKGROUND

The claimant has filed numerous applications for disability

and Supplemental Security Income (SSI) benefits, almost all of

which derive from the same medical condition.

On February 25, 1991, Robbins filed his first application

for disability insurance benefits under Title II of the Social

Security Act, claiming that he had been disabled and unable to

work since November 13, 1990 due to "back and heart problems". Robbins' initial application for disability benefits was

denied on May 14, 1991. The examiner stated that claimant was

disabled as the result of back surgery but that it was expected

that claimant would be able to return to light work within 12

months of the alleged onset date of November 12, 1990. The

examiner wrote that if claimant's condition did not improve as

expected that he should write, call or visit any social security

office. In addition, the examiner determined from a recent

stress test that claimant's alleged heart problems were not

severe.1

The claimant did not seek reconsideration. Instead, he

filed a second application for disability benefits on July 30,

1992, again claiming that he had been disabled since November 13,

1990. The second application was denied on August 5, 1992, on

grounds that the information the claimant had submitted showed no

change in his health before March 31, 1991. It does not appear

that the claimant sought reconsideration.

After being contacted by the district office of the SSA, the

claimant filed an application for Supplemental Security Income

(SSI) benefits on August 26, 1992. In support thereof, claimant

submitted an evaluation performed by Howard E. Pratt, M.D., who

opined that plaintiff could walk a maximum of 50 feet at a time,

could sit only five to eight minutes at a time, and, because of

pain, could not lift anything heavier than a cup of coffee.

1 The claimant's date last insured (DLI) was determined to be March 31, 1991, meaning that in order to gualify for benefits plaintiff needed to be disabled prior to said date.

2 The claimant's SSI claim was denied on November 9, 1992 on

grounds that his condition was not severe enough to keep him from

working. The Commissioner concluded that plaintiff's application

should be denied because the evidence showed that plaintiff's

condition was about the same as when he was denied in May of

1991.

The Commissioner goes on to explain that a recent orthopedic

examination and spinal x-ray indicate only a minor limitation in

claimant's range-of-motion. Therefore, the Commissioner

concluded that claimant's condition was "not severe enough to

keep [him] from performing light exertional work that would allow

[him] to move about as needed." Although the Commissioner

determined that the claimant was unable to perform his previous

job as a truck driver, the claimant was referred to Vocational

Rehabilitation Services in order to help him retrain for lighter

types of work that were within his physical capabilities.

Over a year later, the claimant filed a second application

for SSI on February 22, 1994, this time claiming loss of vision.

The SSA treated the application as being both for SSI and for

"Social Security benefits", which the court assumes refers to

disability benefits under Title II. A month later, the claimant

retained the services of Attorney Thomas F. McCue. In a notice

received by McCue on June 17, 1994, plaintiff's application for

SSI was granted but the claim for disability benefits (by this

time, plaintiff's third claim) was denied. The notice further

3 stated that the claimant had the right to appeal the decision if

he disagreed.

On August 9 , 1994, the claimant, through his attorney, filed a reguest for reconsideration of the denial of his third

application for disability benefits. By letter dated August 15,

1994, the SSA informed plaintiff's attorney that the reguest for

reconsideration was inappropriate because (1) a signed

application was never received and therefore plaintiff's claim

was never processed (plaintiff contends, apparently correctly,

that this statement is factually erroneous), and (2) even if his

claim had been processed it would have been denied for res

judicata reasons.

Plaintiff then filed a fourth application for disability

benefits on September 2, 1994, claiming that he had been unable

to work since October 15, 1989, because of back and heart

problems. This application was denied on September 11, 1994,

because plaintiff failed to show a change in his health before

March 1991. Plaintiff filed a reguest for reconsideration on

October 5, 1994. Two days later, he received a letter from an

SSA claims representative who stated that.

Because the issue is whether the denial under the doctrine of "res judicata" was proper, and there is no substantial medical issue, jurisdiction of the reconsideration is under the Office of Disability Operations, Baltimore, Maryland.

On December 4, 1994, the claims representative contacted the

claimant in order to guestion him about a stroke he had suffered.

Over the next nine to ten months, attorney McCue called the

claims representative a few times in order to check the status of

4 the motion for reconsideration. Each time he was informed that

the claim had not yet been decided by the Office of Disability

Operations (ODO) in Baltimore. The ODO rendered a decision on

July 21, 1995, but neither the claimant nor McCue receivednotice

of the decision until September 13, 1995.

On November 8, 1995, the claimant requested a hearing before

an Administrative Law Judge (ALJ). According to claimant, a

hearing before an ALJ was held in Manchester, New Hampshire, on

January 19, 1996.

The ALJ issued an order on June 12, 1996, dismissing

claimant's request for a hearing. The ALJ concluded that good

cause did not exist to reopen the prior decision of May 14, 1991.

Although the Social Security regulations permit reopening when

new and material evidence is furnished, the ALJ concluded that

the evidence was either repetitive of earlier submitted evidence

or unrelated to a period of disability. The ALJ also concluded

that he must decline claimant's request for a hearing on grounds

of res judicata, as the term is defined in

(c)(1). The ALJ further found that the final

determinations made on claimant's applications, filed on July 30,

1992, and February 25, 1991, should not be reopened because there

was no apparent error in those determinations. The claimant then

filed a request for review by the Appeals Council. After the

Appeals Council denied his request for review, the claimant filed

the present action in this court.

5 DISCUSSION

The Commissioner argues that the June 12, 1996, denial of

plaintiff's request for a hearing, was not "a final decision" of

the Commissioner made after a hearing, within the meaning of

(g)2, and, as a result, this court lacks jurisdiction

over the action.

The SSA regulations permit an ALJ to deny a hearing request

on grounds of res judicata when the SSA has previously determined

the claimant's rights on the same facts and on the same issues

and this previous determination has become "final." See

(c)(1). In general, a determination becomes

final when a claimant does not request further review of an

adverse decision within the relevant time period.

(a). However, a determination may be reopened for any

reason within 12 months of the date of the notice of the initial

determination, see

(a), and within four years

of that notice if the Commissioner finds "good cause," as defined

by § 404.989. See

(b).

Unless a constitutional issue has been raised, a federal

district court lacks jurisdiction to review the Commissioner's

2 This section of the Social Security Act governs judicial review and provides in relevant part: Any individual, after any final decision of the Secretary made after a hearing to which he was a party . . . may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow.

(g) (emphasis added).

6 discretionary decision to not reopen a previous adjudication.

See Califano v. Sanders,

(1977); Colon v.

Secretary,

(1st Cir. 1989); Torres v. Secretary

of Health and Human Services,

(1st Cir.

1988). Likewise, a federal court does not have jurisdiction to

review the Commissioner's decision to deny a hearing request on

res judicata grounds "where the current claim has the same

factual basis as the earlier decision." Torres,

.

It is undisputed that the ALJ denied the claimant's request

for a hearing on June 12, 1996, and expressly declined to reopen

and/or revise any prior decisions in the case. See

(describing procedures involved when ALJ expressly

reopens a prior decision). The claimant maintains that although

the ALJ stated that he would not reopen the case, he nonetheless

constructively reopened3 by reconsidering the prior claim on the

merits. See Girard v. Chater,

(D.R.I. 1996).

The court of appeals for this circuit has observed that

judicial review is authorized (and, presumably, constructive

reopening has occurred) only if a de facto "hearing" within the

meaning of

(g) has been held. See Torres v.

3 The claimant maintains that such reopening occurred on March 3, 1995, but fails to explain, or even identify, the event that led him to conclude that reopening had occurred. It appears that at that time the claimant's motion for reconsideration, filed on October 5, 1994, of the ALJ's denial of his application for benefits under Title II was still pending at the Office of Disability Operations in Baltimore, Maryland, and that the ODO had not yet taken any action.

7 Secretary of Health and Human Servs.,

(1st

Cir. 1988). In such hearing, the ALJ must do more than simply

hear testimony and consider new evidence:

The ALJ [is] entitled to make a threshold inquiry and review the evidence presented by the claimant in order to resolve the reopening issue. A purely discretionary hearing such as that held here for purposes of receiving allegedly new and material evidence is not a hearing within the meaning of § 405(g).

Id. (quotations and citations omitted). However, reopening is

more likely to have occurred if the ALJ reconsiders the merits of

the previous determination and/or discusses the sequential

evaluation process set out in

. See

.

The claimant contends that the ALJ constructively reopened

his first application for disability benefits, which was denied

on May 14, 1991 in the "first decision". The court agrees. The

June 12, 1996, decision of the ALJ refers to the first decision

and is careful to state that that decision has been left

undisturbed. However, when the substance of the ALJ's decision

is considered, it is plain that he substantially revised the

content of the first decision. The first decision concluded that

the claimant was "currently disabled from [his] back surgery"

(and rejected the claimant's claim solely because it appeared

unlikely that his condition would last for the required 12

months), but the subsequent decision ignores that conclusion and

appears to require the claimant to produce evidence that he was

disabled prior to May of 1991. Furthermore, while the first

decision provided that the claimant should inform a social security office if his condition did not improve as expected, the

subsequent decision declines to consider medical evidence

submitted by the claimant relating to his condition in September

of 1992.

Given that the ALJ constructively reopened the case, this

court has jurisdiction to review the proceedings below.4

Accordingly, the court denies defendant's motion to dismiss for

lack of subject matter jurisdiction.

CONCLUSION

For the reasons set forth herein, the court denies

defendant's motion to dismiss (document 5).

SO ORDERED.

Steven J. McAuliffe United States District Judge

December 19, 1997

cc: Thomas F. McCue, Esq. David L. Broderick, Esq.

4 For the time being, the court declines to address whether it also has jurisdiction to review the ALJ's decision to apply the doctrine of res judicata.