Steven Thompson v. Comm Social Security

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: BARRY, FISHER and ROTH, Circuit Judges. Total Pages: 7. DLD-118

Case: 10-3190 Document: 003110517979 Page: 1

DLD-118

Date Filed: 05/02/2011

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-3190
___________
STEVEN C. THOMPSON,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 09-cv-04736)
District Judge: Honorable Peter G. Sheridan
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
February 17, 2011
Before: BARRY, FISHER and ROTH, Circuit Judges
(Opinion filed May 2, 2011)
_________
OPINION
_________

PER CURIAM
Appellant Steven C. Thompson brought suit in the United States District Court for
the District of New Jersey seeking to reverse or reopen his prior unsuccessful application
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for Social Security disability benefits. He now appeals from an order of the District
Court denying his motion for recusal and dismissing his complaint for lack of
jurisdiction. For the reasons that follow, we will summarily affirm.
I.
On April 15, 1996, Thompson filed a claim for disability insurance benefits
(“DIB”) and Supplemental Security Income under the Social Security Act. His
applications were denied initially, and upon reconsideration by an administrative law
judge (“ALJ”), who issued a decision denying his applications on December 23, 1998.
On February 20, 1999, Thompson requested review of the decision by the Appeals
Council. On September 11, 1999, while his appeal was pending, Thompson filed another
application for DIB. His second application was denied on December 14, 1999.
On January 28, 2000, Thompson brought suit in the United States District Court
for the District of New Jersey seeking judicial review of the denial of his claims for DIB.
Because the Appeals Council had not yet rendered a final decision for either of
Thompson’s claims, the District Court dismissed Thompson’s request for judicial review
for lack of jurisdiction. The District Court also rejected Thompson’s claim that his due
process rights had been violated by the agency. We affirmed. See Thompson v. Comm’r
of Soc. Sec., 281 F.3d 224 (3d Cir. 2001) (Table).
On January 31, 2002, the Appeals Council denied Thompson’s request for review.
Thompson then commenced a second civil action in the District Court seeking judicial
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review of the ALJ’s December 23, 1998 decision. See D.N.J. No. 02-cv-01150. The
District Court affirmed the agency’s decision. We affirmed the decision of the District
Court. Thompson v. Sec’y of Health & Human Servs., 112 F. App’x 868 (3d Cir. July
13, 2004) (Table).
On September 14, 2009, Thompson commenced the civil action upon which his
present appeal is based, seeking to reverse the denial of his prior claims, or to reopen his
claims and/or remand his claims for a further hearing. He alleges that the Social Security
Administration’s prior decisions were not based on substantial evidence and that the ALJ
and the District Court violated his due process rights. Compl. ¶ 3-4, 6. He also alleges
that he has new evidence supporting his claim for disability. Compl. ¶ 1-2. The
Commissioner of Social Security moved to dismiss the complaint on the grounds that (1)
the District Court lacked jurisdiction to reopen a final decision of the Commissioner, and
(2) Thompson’s attacks on the agency’s prior decisions were barred by the doctrine of res
judicata.
On December 3, 2009, Thompson moved for District Judge Peter G. Sheridan to
remove himself for bias, prejudice, obstruction of justice, civil rights violations, and
criminal activities, pursuant to 28 U.S.C. §§ 144 and 455. On July 8, 2010, Judge
Sheridan held a hearing on Thompson’s motion for recusal and the Commissioner’s
motion to dismiss.1 Ruling from the bench, the District Court denied Thompson’s recusal

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Thompson was informed of the hearing but did not appear.
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motion and dismissed his complaint with prejudice.2
This appeal followed.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We will summarily affirm if
Thompson’s appeal presents no substantial question. See 3d Cir. L.A.R. 27.4 and 3d Cir.
I.O.P. 10.6. We exercise plenary review over the District Court’s order granting the
Commissioner’s motion to dismiss Thompson’s complaint on the basis of res judicata.
See Elkadrawy v. Vanguard Grp., Inc., 584 F.3d 169, 172 (3d Cir. 2009). We review a
judge’s decision not to recuse, under either 28 U.S.C. § 144 or § 455, for an abuse of
discretion. Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273, 278 (3d Cir.
2000); Jones v. Pittsburgh Nat'l Corp., 899 F.2d 1350, 1356 (3d Cir. 1990).
III.
We first address Thompson’s appeal of the District Judge’s decision not to recuse
himself based on Thompson’s allegations of bias and prejudice. Under § 144, a judge
must recuse if a party files a “sufficient affidavit” establishing that the judge has a
personal bias or prejudice against the party seeking recusal, or in favor of the adverse
party. 28 U.S.C. § 144; see also Jones, 899 F.2d at 1356. Under § 455, a judge must
recuse where the judge’s impartiality “might reasonably be questioned.” 28 U.S.C. §

2

The Commissioner took no position on Thompson’s recusal motion before the
District Court, and does not address the issue on appeal.
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455(a). After a careful and independent review of the record, we find nothing in it to
indicate that the District Judge in Thompson’s case was personally biased against him
under 28 U.S.C. § 144, or that a reasonable person would “harbor doubts concerning the
judge’s impartiality” under 28 U.S.C. § 455(a). Jones, 899 F.2d at 1356.
Thompson’s allegations of prejudice relate to two prior occasions when Thompson
appeared before Judge Sheridan, and Judge Sheridan issued adverse rulings against him,
both having to do with Thompson’s inability to practice law without a license. We agree
with the District Court that Thompson’s allegations amounted to mere disagreement with
the court’s adverse rulings, which does not form a sufficient basis for recusal under § 144
or § 455(a). See Securacomm, 224 F.3d at 278. Moreover, we find nothing in the record
to suggest that Judge Sheridan has developed “a deep-seated favoritism or antagonism”
toward Thompson that would “make fair judgment impossible.” Liteky v. United States,
510 U.S. 540, 555 (1994). In short, we discern no abuse of the District Court’s discretion
in the denial of Thompson’s recusal motion.
We next address whether the District Court erred in dismissing Thompson’s
complaint, which sought to reopen or overturn the denial of his prior claims for benefits
under the Social Security Act. To the extent that Thompson’s complaint seeks to reopen
a final decision of the Commissioner, our precedent is clear that the District Court has no
authority under Section 205(g) of the Social Security Act to do so. See 42 U.S.C. §§
405(g), (h); see also Tobak v. Apfel, 195 F.3d 183, 187 (3d Cir. 1999) (“It is well settled
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that federal courts lack jurisdiction under § 205 to review the Commissioner’s
discretionary decision to decline to reopen a prior application or to deny a subsequent
application on res judicata ground.”) (citations omitted).3 The Social Security Act does
provide that the District Court may remand a matter to the Commissioner based on new
and material evidence, provided there is good cause for the failure to incorporate such
evidence in the prior proceeding. 42 U.S.C. § 405(g); see also Szubak v. Sec’y of Health
& Human Servs., 745 F.2d 831, 833 (3d Cir. 1984). Here, the “new evidence” Thompson
seeks to introduce is evidence that his condition has worsened in the time since the
Commissioner denied Thompson’s prior claim. This is not “new” evidence under §
405(g) because it is not evidence that was available for consideration at the time the
Commissioner rendered the challenged decision. Such evidence does not relate to the
time period for which benefits were denied, nor is it material to the decision the
Commissioner arrived at ten years ago. Szubak, 745 F.2d at 833 (noting that an implicit
materiality requirement is that the new evidence “not concern evidence of a lateracquired disability or of the subsequent deterioration of the previously non-disabling
condition”). Therefore, there is no basis to disturb the Commissioner’s prior decision
based on Thompson’s proffered new evidence.
Nor is this “one of those rare instances where the Secretary’s denial of a petition to

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At the outset, Thompson has never asked the agency to reopen his claim.
Regardless, even assuming that this action arose from an agency denial, the District Court
is not permitted to review a decision by the agency not to reopen. See Califano v.
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reopen is challenged on constitutional grounds.” Califano v. Sanders, 430 U.S. 99, 109
(1977); see also Penner v. Schweiker, 701 F.2d 256, 260 (3d Cir. 1983). In the first
instance, this civil action does not arise from the denial of a petition to reopen. Further,
Thompson did not raise any constitutional issues before the District Court that were not
barred by res judicata.
Thompson’s claims in the present suit — that the Commissioner’s prior denial of
benefits was not supported by substantial evidence and that the agency violated his due
process rights — are essentially identical to those made in his prior suits. These claims
were litigated between the same parties, and a final decision was reached on the merits.
See Thompson, 112 F. App’x at 868 (affirming District Court’s decision affirming
Commissioner’s final decision to deny Thompson’s claim for Social Security benefits);
Thompson, 281 F.3d at 224 (affirming the District Court’s decision rejecting Thompson’s
due process claim after finding no evidence of bad faith, dilatory motive, or lack of evenhandedness on the part of the agency). Thus, the District Court was correct to dismiss
these claims as barred by the doctrine of res judicata. See Elkadrawy, 584 F.3d at 172.
IV.
Because this appeal presents “no substantial question,” we will summarily affirm
the District Court’s judgment. See LAR 27.4; 3d Cir. I.O.P. 10.6. Appellant’s motion
for leave to file a response in excess of the page limitation is granted.

Sanders, 430 U.S. 99, 107-08 (1977); Tobak, 195 F.3d at 187.
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