filed in January, 1992. Therefore, the issue is whether this Court has subject-matter jurisdiction to review the denial of a request to reopen a prior social security disability benefits application.
Section 405(g) of the Social Security Act provides that "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 . . . ." 42 U.S.C. § 405(g). This provision clearly limits judicial review to a particular type of agency action, namely, a final decision after a hearing. Califano v. Sanders, 430 U.S. 99, 108, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977). The Commissioner's refusal to reopen a prior final decision without a hearing is not a "final decision of the Secretary made after a hearing" within the meaning of Section 405(g) and is therefore not reviewable. Califano v. Sanders, 430 U.S. at 108; Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990). Section 405(g) "cannot be read to authorize judicial review of alleged abuses of agency discretion in refusing to reopen claims for social security benefits." Califano, 430 U.S. at 108.
While ordinarily a district court does not have subject matter jurisdiction over an action to reopen a claim for disability benefits, the denial of benefits may be challenged on constitutional grounds. Califano, 430 U.S. at 109. If the claimant asserts a colorable constitutional claim, the district court has jurisdiction to consider whether the Commissioner's refusal to reopen the prior decision was proper. Id. In the absence of such a constitutional claim, the district court lacks jurisdiction to further review the claim. Latona v. Schweiker, 707 F.2d 79, 81 (2d Cir. 1983); Willow v. Sullivan, 733 F. Supp. 591, 594 (W.D.N.Y. 1990).
C. The parties' arguments
The plaintiff contends that once a claim for Social Security disability benefits has been administratively adjudicated by both the ALJ and the Appeals Council, the Social Security Act does provide for review by a federal court of the final administrative decision under 42 U.S.C. § 405(g). The plaintiff asserts that according to the Social Security Regulations "the Secretary has discretion to reopen prior applications within four years of an initial determination on a good cause basis." Guy v. Sullivan, 736 F. Supp. 1255 (W.D.N.Y. 1990).
Dixon alleges that he had "good cause" in requesting the reopening of his prior January 1992 application. The "good cause" consisted of new and material evidence as described in 20 C.F.R. § 404.989(a)(1) not considered by the Commissioner in the first application. The plaintiff claims that the Commissioner only construed a portion of the relevant medical records in its denial and failed to consider any diagnostic testing or evidence by the treating orthopedist. Thus, according to the plaintiff, all of the orthopedist's medical reports and diagnostic test results constituted new and material evidence which should have permitted the reopening of the prior application.
Further, the plaintiff maintains that the decision stated that "if you desire a court review of the ALJ's decision, you may commence a civil action by filing a complaint in the United States District Court in the judicial district in which you reside within sixty (60) days from the date of the receipt of this letter." Dixon asserts that the language of the decision implies that the Appeals Council considered its refusal to reopen the prior application as a final decision, and that review of this refusal was available by commencing an action in federal court. The plaintiff also claims that even if the issue of reopening was not generally appealable, the Commissioner had clearly waived the issue.
In addition, the plaintiff asserts that this case falls squarely within the exception to Califano as expressed in Guy v. Sullivan, 736 F. Supp. 1255 (W.D.N.Y. 1990) and Malave v. Sullivan, 777 F. Supp. 247 (S.D.N.Y. 1991). Dixon states that Guy and Malave stand for the proposition that when "the Secretary reviews the entire record and renders a decision on the merits, the earlier decision will be deemed to have been reopened and any claim of administrative res judicata to have been waived by the Secretary." Malave, 777 F. Supp. at 251; see also Guy, 736 F. Supp. at 1259. The plaintiff contends that those holdings noted that "the crucial inquiry is whether, in ruling on the present application, the Secretary addressed the prior decisions and held all or part of the claim barred by res judicata, or whether he proceeded to review the entire record in the new proceeding and reach a decision on the merits." Id. According to the plaintiff, the court in Malave determined that the ALJ had constructively reopened the claimant's prior applications due to the fact that "the ALJ considered the entire record in the case, including medical evidence as far back as 1984 and testimony about the period before then." Id. The plaintiff also states that the same issue and outcome occurred in Guy v. Sullivan, 736 F. Supp. 1255, 1259 (W.D.N.Y. 1990). Dixon maintains that the court in Guy found that de facto or constructive reopening had occurred because the ALJ's final decision included information dating back to the prior application.
The plaintiff maintains that in this case the ALJ considered medical evidence relating back to the plaintiff's injury on August 30, 1991 and his application filed in January, 1992, namely the records from Mather Hospital, the MRI of September 17, 1991, and the reports of the treating orthopedic surgeon. Thus, Dixon alleges that the ALJ did reopen the prior application in determining that the plaintiff was not disabled from August 1991 to January 1993.
On the other hand, the defendant contends that this Court does not have subject matter jurisdiction to adjudicate this matter because the Supreme Court in Califano held that the Social Security Act does not afford an implied or implicit grant of subject-matter jurisdiction permitting federal judicial review of agency action. The defendant asserts that Section 405(g) is the sole ground for judicial review and its terms must be complied with. Section 405(g) provides for review of a "final decision of the Commissioner made after a hearing."
Here, the Commissioner denied the plaintiff's application to reopen his prior case. Section 404.988 sets forth the conditions for reopening, as follows:
A determination, revised determination, decision, or revised decision may be reopened