E.E.P. v. BARNHART

2004 | Cited 0 times | D. Maine | June 24, 2004

REPORT AND RECOMMENDED DECISION1

The plaintiff in this Supplemental Security Income ("SSI")appeal contends that the commissioner should have reopened anearlier application from which she took an untimely appeal uponawarding benefits in response to her current application. Theplaintiff states that the first application was filed on December14, 2000, Itemized Statement of Errors, etc. ("ItemizedStatement") (Docket No. 8) at 2, and that "[t]he basis for theclaim of disability is precisely the same in both applications,"Record at 11. At oral argument, counsel for the commissionerstipulated to these factual assertions. The only documentincluded from the initial application is an order of dismissaldated December 11, 2001, which states that a notice of theinitial determination on that application was sent to the plaintiff onMarch 14, 2001; that a prior application was filed on August 17,1998; and that the request for hearing on the March 14, 2001determination was untimely. Id. at 60-61. After theadministrative law judge issued his decision, counsel for theplaintiff asked the administrative law judge and the appealscouncil to reopen the application denied on March 14, 2001 andfind that the plaintiff had been disabled since December 14,2000, rather than December 13, 2001, the date of filing of thecurrent application. Id. at 9, 11-12, 20.

A decision by the commissioner may be reopened without 12months of the date of the notice of the initial determination forany reason. 20 C.F.R. § 416.1488(a). The instant application wasfiled on December 13, 2001, Record at 16, less than 12 monthsafter the notice of the initial determination on the earlierapplication was sent. However, the request to reopen the earlierapplication was apparently not made until February 26, 2003.Id. at 11. Reopening more than 12 months after the date of thenotice and less than two years after the date of the notice isonly available on a showing of good cause.20 C.F.R. § 416.1488(b). "Good cause" is defined at 20 C.F.R. § 416.1489 asthe furnishing of new and material evidence, the making of aclerical error or the fact that the evidence considered in makingthe determination clearly shows on its face that an error wasmade. The plaintiff makes no attempt to show that good causeexists in this case, and none is apparent from the record.

In order to avoid the "good cause" requirement, the plaintiffrelies on the date on which she filed the instant application anda section of HALLEX. Itemized Statement at 2-3. "HALLEX" is theacronym for the Hearings, Appeals and Litigation Law Manual, aninternal procedural document of the Social SecurityAdministration. Shave v. Apfel, 238 F.3d 592, 596 (5th Cir.2001). See also Moore v. Apfel, 216 F.3d 864, 868 (9th Cir. 2000) ("HALLEX is strictly an internalguidance tool, providing policy and procedural guidelines to ALJsand other staff members.") The section cited by the plaintiffprovides, in relevant part: If an ALJ is issuing a decision on a current application, and the record shows that in connection with the current application the claimant did not specifically request reopening and revision of the prior determination or decision, but did allege an onset date of disability within the previously adjudicated period, the ALJ must consider the claimant's current application to be an implied request for reopening and revision of the determination or decision on the prior application. Under these circumstances, if the ALJ's decision on the current application is unfavorable, the ALJ will not discuss or make any finding on the issues of reopening and revising the unfavorable determination or decision on the prior application. However, if the ALJ's decision on the current application is favorable, the ALJ must include in the decision appropriate findings and rationale on the reopening and revision issues.HALLEX I-2-9-1 (emphasis in original), available atwww.ssa.gov/OP_Home/hallex/I-02/I-2-9-1.html. The only circuitcourts of appeals that have addressed the issue differ on whetherthe commissioner may be compelled to act in accordance with theterms of HALLEX. The Fifth Circuit "has expressed a strongpreference for requiring the social security administration tofollow its own internal procedures," once the claimant shows thatshe was prejudiced by the agency's failure to follow a particularrule set forth in HALLEX. Shave, 238 F.3d at 596-97. The NinthCircuit, on the other hand, concludes that HALLEX "has no legalforce and is not binding" and "does not prescribe substantiverules and therefore does not carry the force and effect of law."Bunnell v. Barnhart, 336 F.3d 1112, 1115 (9th Cir. 2003)(citation omitted) (refusing to require recusal of administrativelaw judge in accordance with HALLEX). See also Lowry v.Barnhart, 329 F.3d 1019, 1023 (9th Cir. 2003) (HALLEX does not"impose[] judicially enforceable duties").

The plaintiff in this case has been prejudiced by thecommissioner's failure to comply with the cited section ofHALLEX; she has possibly been deprived of one year's entitlementto benefits. The First Circuit has not addressed the role of HALLEX in any reported decision.However, it has required the commissioner to comply with theSocial Security Administration's Program Operations Manual System("POMS"). Avery v. Secretary of Health & Human Servs.,797 F.2d 19, 23-24 (1st Cir. 1986). The Ninth Circuit specifically notesthat it treats POMS and HALLEX, both internal procedural manuals,alike. Lowry, 329 F.3d at 1023. By this logic, the FirstCircuit should be expected to hold the commissioner to the termsof HALLEX. Avery thus leads me to conclude that the FirstCircuit would be likely to agree with the Fifth Circuit ratherthan the Ninth on this point.

At oral argument, counsel for the commissioner contended thatan implied request to reopen is not judicially reviewable absenta colorable constitutional claim, citing Califano v. Sanders,430 U.S. 99 (1977). Neither the Fifth nor the Ninth Circuitopinions cited above mentions Califano; neither concerned arequest to reopen a claim for benefits. The Supreme Court held inCalifano that the Social Security Act "cannot be read toauthorize judicial review of alleged abuses of agency discretionin refusing to reopen claims for social security benefits." 430U.S. at 107-08. It noted that the opportunity to reopen finaldecisions and to have a hearing at which the propriety of such anaction may be determined are provided only by the commissioner'sregulations. Id. at 108. It is the duty of the courts, theSupreme Court said, to respect the statutory 60-day limit onjudicial review of a final decision by the commissioner, whichwould be frustrated by allowing a claimant to obtain judicialreview merely by filing a request to reopen a claim for which notimely request for judicial review had been made. Id. The onlyexception to this rule is a challenge to the denial of a requestfor reopening on constitutional grounds. Id. at 109. Noconstitutional claim was raised in the plaintiff's itemizedstatement and, when asked at oral argument to identify such aclaim on behalf of his client, counsel for the plaintiffresponded that he was "not sure that there is any." A claim ofdenial of due process, which I suggested to counsel for bothparties at oral argument, if it is not to be available in every case in which reopening is denied, must beaccompanied by some concrete suggestion of the specific manner inwhich due process was denied — for example, that the claimant wasunable to pursue her administrative remedies due to mentalillness. Here, the plaintiff has not offered any such argument atany time.

I am concerned, as I stated at oral argument, that thecommissioner's interpretation of Califano to deprive this courtof jurisdiction over the plaintiff's asserted implied request toreopen her earlier claim allows the commissioner to ignore asingle provision of HALLEX when First Circuit precedent suggeststhat the commissioner should be required to follow her ownwritten internal policy, particularly where the claimant isinjured by the commissioner's failure to abide by her own policydirective. However, I conclude that Califano has precisely thateffect with respect to the single issue of reopening previouslydenied claims.

For the foregoing reasons, I recommend that the commissioner'sdecision refusing to reopen the plaintiff's application for whicha notice of denial was issued on March 14, 2001 be AFFIRMED.

1. This action is properly brought under42 U.S.C. § 1383(c)(3). The commissioner has admitted that the plaintiff hasexhausted her administrative remedies. The case is presented as arequest for judicial review by this court pursuant to LocalRule 16.3(a)(2)(A), which requires the plaintiff to file an itemizedstatement of the specific errors upon which she seeksmodification of the commissioner's decision and to complete andfile a fact sheet available at the Clerk's Office. Oral argumentwas held before me on June 21, 2004, pursuant to LocalRule 16.3(a)(2)(C) requiring the parties to set forth at oral argumenttheir respective positions with citations to relevant statutes,regulations, case authority and page references to theadministrative record.

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