United States Court of Appeals,
Eleventh Circuit.
No. 94-6591
Non-Argument Calendar.
Theodore S. SHERROD, Plaintiff-Appellant,
v.
Shirley S. CHATER, Commissioner of Social Security, Defendant-
Appellee.
Feb. 2, 1996.
Appeal from the United States District Court for the Southern
District of Alabama. (No. 93-0330-AH-C), Alex T. Howard, Jr.,
Judge.
Before TJOFLAT, Chief Judge, HATCHETT, Circuit Judge, and MORGAN,
Senior Circuit Judge.
PER CURIAM:
This case comes before us on appeal of the plaintiff Theodore
S. Sherrod from the district court's order dismissing his claim for
disability insurance benefits. Since we agree with the district
court that it did not have subject matter jurisdiction to review
Sherrod's claim, we affirm.
BACKGROUND
On July 18, 1988, Sherrod applied to the Department of Health
and Human Services for various disability and social security
benefits under Title II and Title XVI of the Social Security Act1,
1
At the time he filed for these benefits, Sherrod had not
worked for six years due to mental problems which gradually were
becoming worse. He was unable to attend to personal matters or
carry on a regular routine, and he was withdrawn, depressed, and
engaged in no social activities.
but the Secretary2 denied his petition. With the assistance of
legal counsel, Sherrod requested and received a hearing before an
administrative law judge (ALJ) which was conducted on September 7,
1989. By decision dated January 18, 1990, the ALJ concluded that
Sherrod was disabled as of July 1988, thus entitling him to receive
supplemental security income under Title XVI. Nevertheless,
Sherrod's insured status under Title II had expired in 1987,
thereby making him ineligible for disability insurance benefits.
Sherrod did not appeal the denial of his Title II insurance
benefits.
In April 1992, Sherrod filed a second application for
disability benefits. The Secretary denied the application
initially on the grounds that it covered the same issues which had
been decided when the 1990 claim was denied, and the new evidence
which Sherrod submitted was not sufficient to cause a change in the
earlier decision. On reconsideration, the application was denied
on the basis that Sherrod's insured status had expired. Sherrod
continued to pursue his claim by filing a request for a hearing
before the ALJ along with a petition to reopen the ALJ's 1990
decision. In response, the ALJ wrote a letter dated December 8,
1992, to Sherrod stating that his request to reopen had no merit
since it was filed thirty months after the prior final decision.
Sherrod filed a request for review of the ALJ's decision, but the
2
In Sherrod's district court action, Donna E. Shalala,
Secretary of Health and Human Services, is identified as the
defendant. Since Sherrod's appeal, however, Shirley S. Chater,
Commissioner of Social Security, has been substituted as the
defendant. Nevertheless, for the sake of convenience, we simply
refer to "the Secretary" when identifying the party acting on
behalf of the Department of Health and Human Services.
Appeals Council took no action after it found that the ALJ's
decision was not subject to review according to agency regulations.
See
20 C.F.R. § 404.903.
Undeterred by his previous setbacks, Sherrod continued his
quest for disability benefits by filing a complaint in the district
court on April 7, 1993, seeking judicial review of the ALJ's
refusal to reopen his case. The district court referred the matter
to a magistrate who issued a report and recommendation stating that
the district court had no jurisdiction to review the denial of a
request to reopen a prior, final decision. The district court
adopted the magistrate's report and recommendation over Sherrod's
objection and dismissed the case.
DISCUSSION
The decision of the district court as to its subject matter
jurisdiction is a question of law which we review de novo. Mutual
Assurance, Inc. v. United States,
56 F.3d 1353, 1355 (11th
Cir.1995).
The district court's jurisdiction in this case is limited by
the Social Security Act, and judicial review only exists over
"final decisions of the Secretary."
42 U.S.C. § 405(g). As a
general matter, district courts do not have jurisdiction over the
Secretary's refusal to reopen a claim since such a refusal is not
a "final decision" within the meaning of section 405(g). Califano
v. Sanders,
430 U.S. 99, 107-08,
97 S.Ct. 980, 985-86,
51 L.Ed.2d
192 (1977); Stone v. Heckler,
778 F.2d 645, 646-47 (11th
Cir.1985). Nevertheless, subject matter jurisdiction will exist in
those cases where "a social security claim is in fact reopened and
reconsidered on the merits to any extent on the administrative
level." Macon v. Sullivan,
929 F.2d 1524, 1529 (11th Cir.1991);
see also Passopulos v. Sullivan,
976 F.2d 642, 645-46 (11th
Cir.1992). Also, judicial review may be had where the claimant
raises a colorable constitutional issue, Callis v. Department of
Health & Human Servs.,
877 F.2d 890, 891 (11th Cir.1989), because
"[c]onstitutional questions obviously are unsuited to resolution in
administrative hearing procedures and, therefore, access to the
courts is essential to the decision of such questions." Sanders,
430 U.S. at 109,
97 S.Ct. at 986. On this appeal, Sherrod contends
that the district court has subject matter jurisdiction because the
ALJ in fact reopened his claim on the merits and because he has
raised a colorable constitutional claim. Sherrod also claims that
the district court erred by not remanding his claim to the
Secretary for further consideration in light of new evidence.3
A. Reconsideration of the merits
In 1992, Sherrod made a request to the ALJ to reopen his 1990
application for benefits. The ALJ responded by letter stating that
Sherrod's request had "no merit" since it had been filed thirty
months after the original decision. On appeal, Sherrod argues that
this response by the ALJ demonstrates that his case was reopened
and the merits reconsidered. We do not agree. The use of the word
"merit" in the ALJ's letter is a reference to the merits of
Sherrod's request to reopen his claim. It is not, as Sherrod
3
Sherrod makes the additional argument that the district
court erred by failing to rule on his motion for summary
judgment. Our conclusion that the district court lacked subject
matter jurisdiction, however, makes it unnecessary for the
district court to rule on that motion.
contends, a reference to the merits of the claim itself. This
statement clearly does not touch upon the merits of the prior
administrative decision, and there is absolutely no evidence
showing that the ALJ conducted a review of the record of Sherrod's
1990 claim. As such, Sherrod's argument on this point has, for
lack of a better phrase, no merit.
B. Constitutional claim
Sherrod next argues that the Secretary's refusal to reopen
the 1990 decision constitutes a denial of constitutional due
process. In making this argument, he relies upon our decision in
Elchediak v. Heckler,
750 F.2d 892 (11th CIr.1985). In that case,
we held that a claimant raises a colorable constitutional claim if
the following criteria are present: (1) he suffers from a
medically-documented mental illness which serves as the basis for
his disability claim; (2) on his first application he was without
the assistance of counsel or other suitable representation; and
(3) he cannot assert a new claim for benefits because he now lacks
insured status.
Id. at 894-95. It is undisputed that the first
and third of the Elchediak criteria are met in this case, but
Sherrod blithely dismisses as unimportant the element regarding the
lack of counsel. We believe he misses the point. Our overriding
concern in Elchediak was that the claimant's mental illness,
coupled with his pro se status, prevented him from proceeding from
one administrative level to another in a timely fashion.
Id. at
894; see Young v. Bowen,
858 F.2d 951, 955 (4th Cir.1988) ("It
offends fundamental fairness, however, to bind a claimant to an
adverse ruling who lacks both the mental competency and the legal
assistance necessary to contest the initial determination.");
Shrader v. Harris, 631 F.2d 297, 302 (4th Cir.1980) ("Our opinion
applies solely to claimants afflicted by mental illness whose
claims, presented pro se, were denied ex parte."); see also
Canales v. Sullivan, 936 F.2d 755 (2d Cir.1991); Parker v.
Califano,
644 F.2d 1199 (6th Cir.1981). This concern is alleviated
where, as here, the claimant is assisted by legal counsel who
understands the administrative process. Thus, we conclude that
Sherrod's argument of a constitutional claim based on Elchediak
fails.4
C. Remand for new evidence
Finally, Sherrod argues on appeal that the district court
should have remanded his case to the Secretary for further
consideration in view of new evidence. See
42 U.S.C. § 405(g).5
In so doing, he relies on our decision in Caulder v. Bowen,
791
F.2d 872 (11th Cir.1986). Once again, however, Sherrod has
misinterpreted case law. In Caulder, we were faced with a
situation where a claimant had come across new medical evidence
4
Sherrod attempts to downplay the importance of the fact he
had legal assistance during his 1990 application for benefits by
relying on the Sixth Circuit's decision in Stoner v. Secretary of
Health and Human Servs.,
837 F.2d 759 (6th Cir.1988). In Stoner,
the court concluded that a claimant's due process rights were
violated even though he was represented by counsel at a hearing
before an ALJ. The Stoner court's decision, however, turned on
the fact that the claimant himself was unable to be at the
hearing due to medical complications.
Id. at 761. Such is not
the case here as both Sherrod and his legal counsel were present
during the 1990 application for benefits.
5
This provision provides in part that a district court "may
at any time order additional evidence to be taken before the
Secretary, but only upon a showing that there is new evidence
which is material."
42 U.S.C. § 405(g).
regarding his disability while his claim was still on direct
review.
Id. at 875. In other words, the evidence that the
claimant had at the time the case was before the district court was
not available when his claim was before the Secretary. Such is not
the situation in Sherrod's case. Sherrod's "new evidence" is
medical testimony that was not introduced in his 1990 application
for benefits. He used this "new evidence" to launch a collateral
attack on the 1990 claim by filing a new claim in 1992. Unlike the
situation in Caulder, this evidence was before the Secretary and
the ALJ when the decision was made not to reopen Sherrod's 1990
claim. Thus, this information is not "new evidence" within the
meaning of section 405(g) or Caulder that would require a remand
for further consideration at the administrative level.
CONCLUSION
The district court correctly concluded that it did not have
subject matter jurisdiction to review the Secretary's refusal to
reopen Sherrod's 1990 claim for benefits.
AFFIRMED.
