London v. Apfel ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 20 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
LORETTA L. LONDON,
Plaintiff-Appellant,
v. No. 99-1146
(D.C. No. 94-D-1610)
KENNETH S. APFEL, Secretary of (D. Colo.)
the Department of Health and Human
Services,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before EBEL , LUCERO , and MURPHY , Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
Plaintiff-appellant Loretta L. London appeals the district court’s order
affirming the decision of the Secretary of Health and Human Services to refuse to
reopen her applications for disability benefits. 1
We affirm. 2
BACKGROUND
In a September 17, 1983 automobile accident, Ms. London sustained
multiple injuries: a fractured right femur and ankle, scalp and facial lacerations,
and a cerebral concussion. Since then, she has filed four sets of applications for
disability insurance benefits under Title II of the Social Security Act and
supplemental security income (SSI) under Title XVI of the Act alleging disability
arising from the accident. In her first two applications, filed in 1983 and 1984,
Ms. London alleged that she was disabled because a rod inserted in her right leg
made it difficult to stand for long periods of time. These applications were
denied and Ms. London did not appeal the determinations. Ms. London last met
1
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
2
The Social Security Administration addressed Ms. London’s claims prior to
March 31, 1995, when the functions of the Secretary of Health and Human
Services in social security cases were transferred to the Commissioner of Social
Security. See Pub. L. No. 103-296. Pursuant to Fed. R. App. P. 43(c), Kenneth
S. Apfel is substituted as the defendant in this action for Donna E. Shalala, the
Secretary of Health and Human Services. Although we have substituted the
Commissioner for the Secretary in the caption, in the text we continue to refer to
the Secretary because she was the appropriate party at the time of the underlying
decision.
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the special insured status requirements for disability insurance benefits on
December 31, 1988. 3
In December 1989, Ms. London filed a third set of applications. Her
disability insurance claim was denied and her SSI claim deferred. Ms. London
did not appeal the denial of disability insurance benefits.
At issue in this case is Ms. London’s fourth set of applications, filed in
September 1991, alleging disability from lower back pain, nervousness, and side
effects from pain medication. She claimed entitlement to benefits dating back to
the 1986 accident, on the theory that her earlier applications should be reopened
because new and material evidence of mental disability showed that she was
incapable of pursuing an appeal at the time they were denied. Upon
administrative denial of her claims, Ms. London appealed.
After a hearing, the administrative law judge (ALJ) determined that
Ms. London had demonstrated that, as of September 9, 1991, the date of her last
SSI application, she was disabled by chronic pain syndrome related to soft tissue
problems; probable degenerative joint disease of the right hip; right plantar
fasciitis; anxiety, personality, and substance addiction disorders; and possibly an
3
A claimant seeking disability insurance benefits under Title II must show
that she became disabled during the period in which the special insured status
requirements were met. See 42 U.S.C. § 423(c).
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organic mental disorder. Accordingly, she met the disability requirement for SSI
as of that date.
The ALJ, however, explicitly determined that Ms. London had not met the
conditions for reopening the earlier SSI applications, see 20 C.F.R. § 416.1488, 4
and that the doctrine of res judicata barred the reopening of the disability
insurance applications, see 20 C.F.R. § 404.957(c)(1). 5
The ALJ found that,
4
Section 416.1488, as in effect at the time of the hearing, provided:
A determination, revised determination, decision, or revised
decision may be reopened--
(a) Within 12 months of the date of the notice of the initial
determination, for any reason;
(b) Within two years of the date of the notice of the initial
determination if we find good cause, as defined in § 416.1489, to
reopen the case; or
(c) At any time if it was obtained by fraud or similar fault.
In 1994, subsection (c) was amended to “make it clear” that the Secretary
follows a general policy of “tak[ing] into account any physical, mental,
educational, or linguistic limitations of an individual (including any lack of
facility with the English language)” in determining whether an application may be
reopened. 59 Fed. Reg. 1629, 1630 (1994).
5
Section 404.957(c) permits a dismissal upon an ALJ’s decision:
that there is cause to dismiss a hearing request entirely or to refuse to
consider any one or more of the issues because --
(1) The doctrine of res judicata applies in that [the Secretary has]
made a previous determination or decision under this subpart about
[the claimant’s] rights on the same facts and on the same issue or
issues, and this previous determination or decision has become final
(continued...)
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“[a]lthough the recent medical evidence of record indicates that the claimant may
have some cognitive dysfunction, there is simply no persuasive evidence . . . that
the claimant was mentally incapable of doing things for herself at the time the
appeal periods expired. . . .” Appellant’s App. at 56. In a similar vein, he stated
that,
[a]lthough the claimant may currently have some cognitive deficits,
as well as other mental limitations, these nonexertional limitations
are simply not documented in the evidence of record for the period
prior to December 31, 1988, the date the claimant was last insured or
prior to August 9, 1990, the previous denial date of the claimant’s
application for supplemental security income. Although the
Administration in the previous denials in this case acknowledged the
fact that the claimant sustained a head injury, there is no
documentation in the record prior to December 31, 1988, or August
1990, that would indicate that the claimant was unable to think
clearly, act in her own interests, or that she was unable to get along
with others. There is no convincing evidence prior to December
1988 that indicates that the claimant was mentally incapable of
handling her own affairs. . . .
Id. at 58.
Because the ALJ found no basis for reopening Ms. London’s earlier
applications, he determined that she was not entitled to any period of disability
insurance benefits or SSI prior to the filing date of her last application. The
Appeals Council denied review of the ALJ’s determination. Thus, the Secretary’s
final decision was that Ms. London was currently disabled, that there was no good
5
(...continued)
by either administrative or judicial action.
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cause to reopen the prior applications, and that consequently the earliest onset
date consistent with administrative res judicata was September 9, 1991, the date
of her last SSI application. On judicial review, the district court denied relief.
DISCUSSION
Generally, federal courts do not have jurisdiction to review refusals by
the Secretary to reopen claims for disability benefits. See Califano v. Sanders ,
430 U.S. 99, 107-09 (1977); Brown v. Sullivan , 912 F.2d 1194, 1196 (10th Cir.
1990) (per curiam). In Sanders , the Supreme Court
noted that the clear language of Section 205(g) indicated that the
federal courts’ jurisdiction under the [Social Security] Act is limited
to review of a “final decision of the Secretary made after a hearing.”
[Sanders , 430 U.S.] at 108. The Court held that because a petition to
reopen may be denied without a hearing Congress did not intend
Section 205(g) to provide the jurisdictional predicate for judicial
review of the Secretary’s decision not to reopen a prior final
decision. Id.Parker v. Califano , 644 F.2d 1199, 1201 (6th Cir. 1981). “Since the advent of
Sanders , the courts have held that, absent a colorable constitutional claim, federal
courts are without jurisdiction to review the Secretary’s denial of benefits on the
basis of res judicata.” Id. (citations omitted).
Accordingly, there is no judicial review of any claim that the Secretary’s
refusal to reopen Ms. London’s earlier applications was unsupported by
substantial evidence. This bar applies to arguments that the Secretary
erroneously concluded that the evidence Ms. London submitted was not new or
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material. See Dvareckas v. Secretary of Health & Human Servs. , 804 F.2d 770,
772 (1st Cir. 1986) (noting that “[w]hether additional medical reports are new or
material or warrant reopening is precisely the type of issue which, absent a
constitutional claim, we may not review”). It also disposes of the claim that the
ALJ failed to make a proper onset determination.
To obtain relief in the judicial system, Ms. London must present a colorable
constitutional claim which vests the courts with jurisdiction to review the refusal
to reopen her prior applications. The existence of a such a claim is a question
of law for the court to decide, see Wills v. Secretary, Health & Human Servs. ,
802 F.2d 870, 872 (6th Cir. 1986) , which we review de novo, see Dang v. UNUM
Life Ins. Co. of Am. , 175 F.3d 1186, 1187 (10th Cir. 1999). In reviewing the
findings of fact upon which the Secretary’s determination is anchored, however,
we must determine whether they are supported by substantial evidence. See
Wills , 802 F.2d at 873; see also Shepherd v. Apfel , 184 F.3d 1196, 1199
(10th Cir. 1999).
Several courts have held that a claimant who has a mental disability raises
a colorable due process claim by alleging that the disability prevented the
claimant from proceeding in a timely fashion from one administrative stage to the
next. See, e.g. , Wills , 802 F.2d at 873; Elchediak v. Heckler , 750 F.2d 892, 894
(11th Cir. 1985) (per curiam); Penner v. Schweiker , 701 F.2d 256, 260-61 (3d Cir.
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1983); see also Social Security Ruling 91-5p (“issued to avoid the improper
application of res judicata or administrative finality when the evidence establishes
that a claimant lacked the mental capacity to understand the procedures for
requesting review”). It is not sufficient, however, for Ms. London to allege
merely that she suffered from a mental impairment at the time of the earlier
decisions; she must show that the mental impairment eroded her ability to pursue
her claims. See Wills , 802 F.2d at 873; Parker , 644 F.2d at 1203.
We note, as did the ALJ, that following Ms. London’s motor vehicle
accident, she was evaluated by a neurologist and found to be alert, oriented, and
articulate, but totally amnesiac of the accident. Appellant’s App. at 314. The
same neurologist examined her in November 1983 upon her complaints of
occipital headaches and made no findings of a significant mental impairment.
See id. at 390. A CT head scan performed on May 17, 1991, was normal. See id.
at 306. In March 1992, a physician examined her and determined that she was
“capable of making reasonable everyday social judgments.” Id. at 400.
Moreover, on May 6, 1992, Ms. London stated that she managed her own
financial affairs by paying her bills with money orders. Id. at 307.
The ALJ adequately investigated Ms. London’s claim that her mental
impairment deprived her of the ability to understand or act upon notice of
administrative procedures. Contrary to her contentions, there is no need to
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remand the matter for additional consideration of the claim. As a matter of law,
Ms. London has suffered no due process violation.
CONCLUSION
The district court properly dismissed Ms. London’s nonconstitutional
claims and affirmed the Secretary’s decision not to open Ms. London’s prior
applications on the grounds of mental incompetency. The judgment of the
district court is AFFIRMED. Ms. London’s motion to proceed in forma pauperis
on appeal is granted.
ENTERED FOR THE COURT
Carlos F. Lucero
Circuit Judge
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