Johnson v. Commissioner of Social Security

          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 ...