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Downey v. Asture

April 28, 2009

EDWARD W. DOWNEY, PLAINTIFF,
v.
ASTURE; COMMISSIONER OF SOCIAL SECURITY DEFENDANT.



The opinion of the court was delivered by: Thomas J. McAvoy, Sr. U.S. District Judge

DECISION and ORDER

I. INTRODUCTION

Plaintiff seeks judicial review of an August 18, 2006 decision by the Commissioner of Social Security denying his February 3, 2004 application for social security disability benefits. Defendant filed the instant Motion to Dismiss on the ground of res judicata. For the reasons set forth below, Defendant's Motion to Dismiss is DENIED.

II. STATEMENT OF FACTS

On February 11, 2004, Plaintiff filed an application for Social Security Disability benefits. Plaintiff claimed that he suffered from Post Traumatic Stress Disorder ("PTSD") as a result of his service in the Vietnam War. To be eligible for disability insurance benefits, a claimant must establish that he became disabled on or before his date last insured. Although the Consultative Examination, Mental Residual Functional Capacity Assessment and Psychiatric Review Technique forms submitted by Plaintiff were consistent with a PTSD diagnosis, the Commissioner of Social Security concluded that this evidence did not support a finding that Plaintiff had PTSD before September 30, 2002, the date on which Plaintiff was last insured. Consequently, on October 5, 2005, Plaintiff's application was denied.

Prior to this denial, Plaintiff was informed of his right to have an administrative hearing on his disability claim. Plaintiff did not elect to have a hearing. The notice of denial informed Plaintiff of his right to appeal the decision to the Appeals Council Review. Plaintiff did not file an appeal.

On February 3, 2006, Plaintiff filed a second application for disability benefits. He again alleged a disability due primarily to Post Traumatic Stress Disorder. The evidence submitted in support of Plaintiff's second application included medical records and a treating psychologist's report indicating that Plaintiff had been treated for PTSD since the mid 1990's. On August 10, 2006, Plaintiff's second application was denied on the basis of administrative res judicata. Plaintiff appealed this denial to the Appeals Council. By letter dated August 13, 2008, the Appeals Council affirmed the denial.

On September 23, 2008, Plaintiff filed the instant action.

Plaintiff asserts that his failure to elect an administrative hearing during his first application was due to a mental illness that rendered him confused and "affected the wisdom of his judgment." Plaintiff submits psychiatric reports and findings that state, in pertinent part, that because of his mental illness "...[Plaintiff] has difficulty adequately understanding and following some instructions and direction as well as completing some tasks due to attention and concentration deficits secondary to PTSD and depression." Presumably, Plaintiff believes that if he had elected for a hearing he would have been able to submit evidence that his PTSD diagnosis preceded September 30, 2002, thus making him eligible for disability benefits.

Defendant contends that Plaintiff had the opportunity to appeal the October 5, 2004 decision or to request that the Appeals Council grant him additional time to file a civil suit in Federal District Court and that Plaintiff pursued neither option. Defendant argues that the applicable regulations bar Plaintiff from challenging the October 5, 2004 decision, see 20 C.F.R. §§ 404.968, 404.982, and also prohibit the Social Security Administration from re-opening Plaintiff's case. See 20 C.F.R. § 404.988.

Plaintiff asserts that the Secretary's application of the doctrine of res judicata to his second application and his inability to attack the first denial has resulted in a denial of Plaintiff's right to due process of law. On November 28, 2008 Defendant filed a motion to dismiss Plaintiff's complaint on the ground of res judicata. Plaintiff opposes the motion.

III. STANDARD OF REVIEW

In reviewing a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must accept the factual allegations set forth in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See ATSI Communs., Inc. V. Shaar Fund, Ltd.,493 F. 3d 87, 98 (2d Cir. 2006). The plaintiff must satifsy a "flexible 'plausibility standard.'" Iqbal v. Hasty, 490 F.3d 143, 157 (2d Cir. 2007). A claim that is not plausible on its face must be "supported by an allegation of some subsidiary facts to survive a motion to dismiss." Benzman v. Whitman, 523 F.3d 119, 129 (2d Cir. 2008). "Once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atl. Corp. v. Twombly, 127 ...


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