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Dunn v. Astrue

January 27, 2010

PHILIP A. DUNN O/B/O IAN W. DUNN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY DEFENDANT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION and ORDER

INTRODUCTION

Plaintiff Philip A. Dunn, on behalf of Ian W. Dunn, brings this action pursuant to 42 U.S.C. § 1383(c)(3) and 42 U.S.C. § 405(g) of the Social Security Act ("the Act") seeking review of a final decision of the Commissioner of Social Security ("Commissioner"), denying his application for Disability Insurance Benefits. Specifically, Plaintiff alleges the decision of the Commissioner was not based on substantial evidence, was based on errors of law, that Plaintiff's prior claims should be reopened, and is in violation of Title II of the Act as well as the Commissioner's Regulations promulgated thereunder.

The Commissioner moves for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c) ("Rule 12(c)")on the grounds that the Administrative Law Judge's ("ALJ") decision was supported by substantial evidence. Plaintiff opposes the Commissioner's motion and cross-moves for judgment on the pleadings pursuant to Rule 12(a), on grounds that the Commissioner's decision was erroneous and not supported by substantial evidence in the record. The Court finds that the decision of the Commissioner for the reasons set forth below, is supported by substantial evidence and is in accordance with applicable law and therefore the Commissioner's motion for judgment on the pleadings is granted.

BACKGROUND

On September 27, 1995 and July 13, 1994, Plaintiff applied for Social Security Disability ("SSD") and Supplemental Security Income ("SSI") respectfully, alleging disability since September 1, 1994, claiming an emotional problem. (Transcript of Administrative Proceedings at page 471-73, 474)(hereinafter "T.") Plaintiff's application was denied initially on March 25, 1996, and on reconsideration on July 16, 1996. Plaintiff then filed a timely request for a hearing on September 12, 1996 which was scheduled for August 7, 1997 before an Administrative Law Judge ("ALJ"). Plaintiff failed to attend the hearing. (T. at 55-55.) On August 8, 1997, a notice to show cause for failure to appear was mailed to Plaintiff to inform Plaintiff that unless he contacted the ALJ by August 27, 1997 and provided good cause for failure to appear, the request for hearing would be dismissed. Plaintiff received the notice on August 12, 1997 but did not respond. On September 10, 1997, the ALJ dismissed Plaintiff's request for hearing because Plaintiff did not establish a good reason for his failure to appear at his scheduled hearing. As such, the July 16, 1996 determination denying Plaintiff's SSD and SSI applications remained the Commissioner's final determination.

On January 19, 2001, Plaintiff filed a second SSD and SSI application, alleging disability since June 15, 1995. Plaintiff, on November 15, 2001, and January 31, 2003, requested that his prior application be reopened "because of error on the face of the record... and additional medical evidence." Plaintiff also claimed that his "psychological condition interfered with his ability to appeal." (T. at 50, 294.) Plaintiff's SSI application was granted, but On October 16, 2001, his SSD claim was denied because he was not disabled prior to the expiration of his disability insurance on June 30, 1998. Plaintiff then filed a timely request for a hearing, which was held on February 20, 2003. Plaintiff attended the hearing with counsel. The ALJ considered plaintiff's case de novo and on March 20, 2003, ALJ Harvey issued an unfavorable decision and denied Plaintiff's applications for periods September 1, 1994 through July 16, 1996 applying the doctrine of res judicata. (T. at 16.) He then denied plaintiff's claims for the relevant period of review July 17, 1996 through June 30, 1998. This became the Commissioner's final decision on December 9, 2004 when the Appeals Council denied Plaintiff's request for review. Plaintiff then initiated a federal court action in the Western District of New York. Thereafter, the Court remanded the case back to the Commissioner for further administrative proceedings. (T. at 342-49.) On November 13, 2005, the Appeals Council remanded the case back to ALJ Harvey, vacating only the unfavorable portion of ALJ Harvey's prior determination. Plaintiff died on March 6, 2007. On June 24, 2008, a supplemental administrative hearing was held in which the ALJ considered the case de novo. (T. at 326-38.) On July 23, 2008, ALJ issued a decision denying Plaintiff's SSD and SSI claims. This became the Commissioner's final decision as Plaintiff did not file exceptions with the Appeals Council, and since the Appeals Council did not act on its own motion. Plaintiff filed a new civil suit. (T. at 327.)

DISCUSSION

I. Jurisdiction and Scope of Review

42 U.S.C. § 405(g) grants jurisdiction to district courts to hear claims based on the denial of Social Security benefits. Additionally, the section directs that when considering such a claim, the Court must accept the findings of fact made by the Commissioner, provided that such findings are supported by substantial evidence in the record. Substantial evidence is defined as, "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 217 (1938). Section 405(g) thus limits the Court's scope of review to determining whether or not the Commissioner's findings were supported by substantial evidence. See Mongeur v. Heckler 722 F.2d 1033, 1038 (2d Cir. 1983) (finding that a reviewing Court does not try a benefits case de novo). The Court is also authorized to review the legal standards employed by the Commissioner in evaluating plaintiff's claim.

The Court must "scrutinize the record in its entirety to determine the reasonableness of the decision reached." Lynn v. Schweiker, 565 F. Supp. 265, 267 (S.D. Tex. 1983) (citation omitted). The Commissioner asserts that his decision was reasonable and is supported by substantial evidence in the record, and moves for judgment on the pleadings pursuant to Rule 12(c). Judgment on the pleadings may be granted under Rule 12(c) where the material facts are undisputed and where judgment on the merits is possible merely by considering the contents of the pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639 (2d Cir. 1988). If, after a review of the pleadings, the Court is convinced that Plaintiff can prove no set of facts in support of his claim which would entitle him to relief, judgment on the pleadings may be appropriate. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957).

II. The ALJ Properly Did Not Reopen Plaintiff's Prior Claim

Section 205(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..." 42 U.S.C. § 405(g). The denial of a claimant's request to reopen a determination is not a final decision subject to judicial review. 20 C.F.R. § 404.903(l).

However, federal courts may review a decision not to reopen a determination if the Commissioner has "constructively reopened [a] case" by reviewing the entire record and rendering a decision on the merits. Velsor v. Astrue, 2009 U.S. Dist. LEXIS 38346 (S.D.N.Y. 2009), citing Byam v. Barnhart, 336 F.3d 172, 180 (2d Cir. 2003).

Courts may also review a decision not to reopen a determination where a plaintiff has raised a "colorable" constitutional challenge to the Commissioner's action. Califano v. Sanders, 430 U.S. 99, 109 (1977). A court can consider a due process claim raised as a ground to reopen a prior final decision where claimant's mental condition prevented ...


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