United States District Court, D. Vermont
OPINION AND ORDER (Docs. 7, 9)
John
M. Conroy United States Magistrate Judge
Plaintiff
George Johnson has filed a Complaint against the Commissioner
of Social Security pursuant to 42 U.S.C. § 405(g),
seeking reversal of the Commissioner's December 2016
decision regarding Johnson's application for disability
insurance benefits (DIB) and either an award of benefits or
remand to the Commissioner for further proceedings. (Doc. 1.)
Pending before the Court is the Commissioner's Motion to
Dismiss Johnson's Complaint for lack of subject-matter
jurisdiction. (Doc. 7.) Therein, the Commissioner argues that
the Court has no jurisdiction to review the pending
claim--which is essentially a duplicate of Johnson's
prior claim that was denied in May 2012--because there is no
judicially reviewable “final decision, ” as
required by § 405(g), and Johnson has not alleged a
colorable constitutional violation. (Id.) Moreover,
the Commissioner asserts that Johnson failed to timely appeal
the Commissioner's May 2012 decision, thereby failing to
exhaust his administrative remedies, and the
Commissioner's decision to deny Johnson's request for
additional time to appeal is not subject to judicial review.
(Id.) Finally, the Commissioner contends that the
pending claim was properly precluded from consideration on
the grounds of res judicata, and this Court has no
jurisdiction to review that determination. (Id.
(citing Doc. 7-6).)
In
response to the Commissioner's Motion, Johnson states
that he seeks a “good-cause hearing” to decipher
whether Johnson has shown good cause for failing to timely
appeal the May 2012 decision, and issuance of a decision that
the Court can then review “for substantial
evidence.” (Doc. 9 at 6.) Johnson argues that the
Commissioner's May 2012 decision is reviewable, despite
Johnson's failure to timely file an appeal, because: (1)
the decision was misleading; and (2) Johnson suffered a
mental condition that impaired his ability to understand that
decision. (Id. at 2-3.) Given those facts, Johnson
claims his late request for an appeal of his prior DIB claim
is excused.
For the
reasons stated below, the Court GRANTS the Commissioner's
Motion (Doc. 7), DENIES Johnson's Motion to Remand (Doc.
9), and DISMISSES Johnson's Complaint.
Factual
and Procedural Background
On
January 6, 2011, Johnson filed applications for DIB and
supplemental security income (SSI), alleging disability
beginning on November 1, 1999. (Doc. 7-5 at 4.) The DIB
application was denied, and the SSI application was approved.
After holding a hearing on Johnson's DIB claim,
Administrative Law Judge (ALJ) Paul Martin issued a decision
on May 25, 2012, finding that Johnson “was not disabled
prior to December 1, 2010, but became disabled on that date
and has continued to be disabled through the date of this
decision.” (Id. at 14 (citations omitted).)
The decision clarifies that, although Johnson became disabled
on December 1, 2010, he “was not disabled . . . through
. . . the last date insured.” (Id.) Attached
to the ALJ's decision is a document prepared by the
Social Security Administration titled “Notice of
Decision - Partially Favorable.” (Id. at 1.)
That Notice was apparently mailed to Johnson on or around May
25, 2012. (Id.) Despite the Notice's instruction
that Johnson “must file [his] written appeal [of the
ALJ's May 2012 decision, if any, ] within 60
days of the date [he received] th[e] notice”
(id. (emphasis in original)), Johnson did not file
an appeal until almost two years later, on March 20, 2014
(see Doc. 7-6 at 3). On June 19, 2015, the Appeals
Council denied Johnson's appeal on the ground that it was
not timely filed, and found that “there is no good
cause to extend the time for filing.” (Id. at
4.)
Approximately
five months later, in November 2015, Johnson filed a new DIB
claim, [1] this time alleging disability beginning on
December 31, 2008. (Doc. 7-8 at 4.) On December 20, 2016, ALJ
Thomas Merrill denied the claim, finding that it was barred
by the doctrine of res judicata and stating:
“[Johnson's] rights on the same facts and on the
same issues are involved [here as were involved in his prior
claim that was denied on May 25, 2012, ] and [thus] the
doctrine of res judicata applies.” (Id. at 7;
see also Id. at 4, 6 (finding that no new and
material evidence had been submitted in conjunction with the
November 2015 claim and that there had been no change in
statute, regulation, or ruling concerning the facts and
issues ruled on in connection with the previously adjudicated
period). Moreover, the ALJ found that the earlier May 2012
decision “remains final and binding.”
(Id. at 6; see also Id. at 5 (“the
prior ALJ decision remains the final decision”).) The
ALJ explained that Johnson had not requested review of the
May 2012 decision within the required period and had not
established “good cause” to extend that period,
as he had not “establish[ed] that he lacked the mental
capacity to understand the procedures for requesting
review” (id. at 5) or that the decision was
“so confusing as to mislead” Johnson
(id. at 6). Johnson appealed the ALJ's decision,
and the Appeals Council denied the appeal. (Doc. 7-9.)
Finally, on March 16, 2017, Johnson filed the Complaint,
initiating this action. (Doc. 1.)
Standard
of Review
Federal
courts are courts of limited jurisdiction and may not decide
cases over which they do not have subject-matter
jurisdiction. Lyndonville Sav. Bank & Trust Co. v.
Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000) (“If
subject matter jurisdiction is lacking, the action must be
dismissed.”). In considering a motion to dismiss for
lack of subject-matter jurisdiction, the court must accept as
true all factual allegations in the complaint and draw all
reasonable inferences in favor of the plaintiff. Nat.
Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir.
2006); see Louis v. Comm'r of Soc. Sec., No. 09
Civ. 4725(JGK), 2010 WL 743939, at *1 (S.D.N.Y. Mar. 2,
2010). However, the burden is on the plaintiff to prove by a
preponderance of the evidence that jurisdiction exists.
Makarova v. United States, 201 F.3d 110, 113 (2d
Cir. 2000). Unlike on a Rule 12(b)(6) motion, on a motion to
dismiss for lack of subject-matter jurisdiction, the court is
authorized to consider matters outside of the pleadings,
including affidavits, documents, and testimony. See Kamen
v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.
1986). Therefore, in considering the Commissioner's
Motion to Dismiss, the Court may consider the documents
attached to it, including the May 2012 and December 2016 ALJ
decisions, their corresponding notices, and the June 2015
Appeals Council order. (See Docs. 7-5, 7-6, 7-8.)
Analysis
I. Subject-Matter Jurisdiction
In
social security cases, 42 U.S.C. § 405(g)
“provides the exclusive means by which the federal
courts may review a decision of the Commissioner.”
Feine v. Astrue, No. 2:08-CV-163, 2009 WL 688990, at
*2 (D. Vt. Mar. 9, 2009); see Jackson v. Astrue, 506
F.3d 1349, 1353 (11th Cir. 2007); 42 U.S.C. § 405(h)
(“No findings of fact or decision of the Commissioner
of Social Security shall be reviewed by any person, tribunal,
or governmental agency except as herein provided.”).
Section 405(g) states, in pertinent part: “Any
individual, after any final decision of the Commissioner of
Social Security made after a hearing to which he was a party,
. . . may obtain a review of such decision by a civil
action.” 42 U.S.C. § 405(g). The Supreme Court has
instructed that § 405(g) “clearly limits judicial
review to a particular type of agency action[:] a final
decision of the [Commissioner] made after a
hearing.” Califano v. Sanders, 430 U.S. 99,
108 (1977) (emphasis added) (internal quotation marks
omitted). Therefore, “[a] final decision is
‘central to the requisite grant of subject matter
jurisdiction.'” Fitzgerald v. Apfel, 148
F.3d 232, 234 (3d Cir. 1998) (quoting Mathews v.
Eldridge, 424 U.S. 319, 328 (1976)); see Iwachiw v.
Massanari, 125 F. App'x 330, 331 (2d Cir. 2005)
(“Pursuant to 42 U.S.C. § 405(g), an individual
must obtain a final decision of the Commissioner before a
federal court can review Social Security benefit
determinations.”) (internal quotation marks omitted).
“The
requirement of a ‘final decision' has two
components: (1) a non-waivable requirement that a claim for
benefits has been presented to the [Commissioner], and (2) a
waivable requirement that the administrative remedies
prescribed by the [Commissioner] have been exhausted.”
Iwachiw, 125 F. App'x at 331. The term
“final decision” is undefined in the Social
Security Act; “its meaning is left to the
[Commissioner] to flesh out by regulation.”
Weinberger v. Salfi, 422 U.S. 749, 766 (1975). The
Commissioner has construed the term “through a series
of regulations setting forth a detailed administrative
process.” Iwachiw, 125 F. App'x at 331
(citing Weinberger, 422 U.S. at 766). Under those
regulations, an individual claiming entitlement to Social
Security benefits first receives an initial determination. 20
C.F.R. § 404.902. If dissatisfied with that
determination, the claimant may request reconsideration and
then a hearing before an ALJ. 20 C.F.R. §§ 404.907,
404.929. If the ALJ renders an unfavorable decision, the
claimant may request review from the Appeals Council. 20
C.F.R. § 404.967. The ALJ's decision does not become
“final” until “after the Appeals Council
has denied review or decided the case after review.”
Iwachiw, 125 F. App'x at 331 (quoting
Matthews v. Chater, 891 F.Supp. 186, 188 (S.D.N.Y.
1995), aff'd, 101 F.3d 681 (2d Cir. 1996)
(table)); see 20 C.F.R. § 404.981. If the
claimant does not pursue administrative appeal rights, the
ALJ's decision becomes binding. 20 C.F.R. §§
404.905, 404.955.
Here,
neither the May 2012 decision nor the December 2016 decision
ever became “final.” The May 2012 decision did
not become final because Johnson failed to request Appeals
Council review within the 60-day period required under the
regulations. See 42 U.S.C. § 405(g); 20 C.F.R.
§ 404.981. Johnson himself concedes this fact, stating
in the Complaint that he “did not appeal the [May 2012]
decision.” (Doc. 1 at 2.) And the December 2016
decision did not become final because there was no
administrative hearing, as again conceded by Johnson in the
Complaint (see id. at 3). See 20
C.F.R. § 404.929; Matthews v. Chater, 101 F.3d
681, 1996 WL 146534, at *1 (2d Cir. 1996) (table);
Faucette v. Colvin, No. 15 Civ. 8495 (AJP), 2016 WL
866350, at *3 (S.D.N.Y. Mar. 3, 2016) (“The Second
Circuit interprets Section 405(g) to grant jurisdiction to
review a[] [Social Security Administration] decision only if
that decision follows an actual hearing on the merits.”
(citing Dietsch v. Schweiker, 700 F.2d 865, 867 (2d
Cir. 1983))). There was no administrative hearing because, as
stated in the December 2016 decision, the ALJ declined to
review the November 2015 claim on the grounds of res
judicata, accurately finding that it involved “the same
facts” and “the same issues” as the
original January 2011 claim. (Doc. 7-8 at 7.) As discussed in
more detail below, courts generally lack jurisdiction to
review denials of benefits based on res judicata, because
such denials are entered without a hearing. Yeazel v.
Apfel, 148 F.3d 910, 911 (8th Cir. 1998). Moreover,
when, as here, an untimely administrative appeal is dismissed
on procedural grounds, there is no final decision on the
merits of a claim by the Commissioner and therefore the claim
is not reviewable. Hilmes v. Sec'y of Health &
Human Servs., 983 F.2d 67, 70 (6th Cir. 1993); see
Dryden v. Comm'r of Soc. Sec., Case No. 1:14-CV-496,
2015 WL 12698064, at *3 (S.D. Ohio Jan. 26, 2015)
(“dismissal of an untimely appeal is not a ‘final
decision' subject to review under § 405(g)”),
Report and Recommendation adopted, Case No.
1:14CV496, 2015 WL 12698065 (S.D. Ohio Feb. 18, 2015)
For
these reasons, the Commissioner's argument that the Court
is without jurisdiction to review Johnson's claim has
significant merit.
II.
“Colorable Constitutional Claim” Exception ...