Jamie Cosenza v. Nancy A. Berryhill
Filed Nonprecedential Disposition PER CURIAM. AFFIRMED. Richard A. Posner, Circuit Judge; Michael S. Kanne, Circuit Judge and Diane S. Sykes, Circuit Judge. [6852503-1]  [17-1081]
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 5, 2017 *
Decided July 6, 2017
RICHARD A. POSNER, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
on behalf of J.M.F., a minor,
Appeal from the United States District
Court for the Central District of Illinois.
Acting Commissioner of Social Security,
After the Social Security Administration denied her application for disability
benefits on behalf of her minor son, Jamie Cosenza sought review in the district court.
The court found error in the administrative law judge’s reasoning, remanded the case to
the agency for further proceedings, and closed the federal case. While the agency review
still was ongoing, Cosenza filed two motions in the closed district court case: one
We have agreed to decide the case without oral argument because the appeal is
frivolous. FED. R. APP. P. 34(a)(2)(A).
requesting that the court hold the Social Security Commissioner in contempt for
disobeying its remand order and another asking that summary judgment be granted in
her favor. The district court rejected both arguments and Cosenza appeals. We uphold
the lower court’s rulings.
This case has a protracted procedural history. Cosenza applied in 2011 for
disability benefits on behalf of J.M.F., her minor son. After a hearing the ALJ determined
that J.M.F. was not disabled, and the Appeals Council denied her request for review.
Cosenza sought judicial review in federal court and argued that the ALJ was biased, had
not fairly developed the record, improperly found that her son’s autism and Asperger’s
syndrome were not “medically determinable” impairments, and insufficiently
substantiated her findings. The district judge adopted a magistrate judge’s report and
recommendation and granted summary judgment for Cosenza. According to the district
judge, the ALJ (1) did not separately assess whether J.M.F.’s impairments medically or
functionally equaled Listing 112.02 (regarding organic mental disorders), and (2) did not
explain her reliance on an ambiguous exhibit—a report that rated J.M.F.’s academic
skills numerically without explaining what the numbers meant. The court remanded the
case under the fourth sentence of § 405(g) of the Social Security Act for further agency
action. See 42 U.S.C. § 405(g); Cosenza ex rel. J.M.F. v. Comm’r of Soc. Sec., No. 1:14-cv-01214
(C.D. Ill. Aug. 11, 2015). Because a sentence-four remand terminates the case in the
district court, see Richmond v. Chater, 94 F.3d 263, 267–68 (7th Cir. 1996), the court issued a
final judgment closing the case.
On remand Cosenza’s case was reassigned to another ALJ who conducted a
hearing in March 2016. In June Cosenza filed a motion in the closed federal case to hold
the Commissioner in contempt “for not following court ordered remand and or for a
decision.” In July the ALJ again ruled against Cosenza. The ALJ informed Cosenza that
she could challenge the decision by either requesting review from the Appeals Council
within 30 days or by filing a civil action once the agency’s decision became final.
See 20 C.F.R. § 416.1484. If Cosenza opted not to ask the Appeals Council for review, the
ALJ advised, she could proceed to federal court—after giving the Appeals Council
60 days to decide on its own accord whether to review the case.
Cosenza did not wait 60 days for the decision to become final. Instead she both
moved for summary judgment in the closed federal case and filed a letter with the
Appeals Council requesting that it review the ALJ’s decision. In response to the districtcourt filings, the Commissioner filed two motions: one to strike Cosenza’s summaryjudgment motion on the ground that the court lacked jurisdiction to consider it and
another to deny her contempt motion because the Commissioner had not violated any
court order. And the Appeals Council opted to postpone consideration of her agency
appeal pending the outcome of this civil action.
On the report and recommendation of a magistrate judge, the district court
granted the Commissioner’s motion to strike the summary-judgment motion. The judge
explained that the district court relinquished jurisdiction over Cosenza’s case once it had
remanded under sentence four of § 405(g). See Shalala v. Schaefer, 509 U.S. 292, 296–300
(1993); Richmond, 94 F.3d at 267–68. And to the extent Cosenza wished to challenge the
ALJ’s most recent unfavorable decision, the administrative appeals process had not yet
finished (i.e., the record did not reflect that the Appeals Council had taken any action)
and thus no final decision existed for the court to review. 20 C.F.R. § 416.1484. As for
Cosenza’s motion to hold the Commissioner in contempt, the judge denied the motion
because Cosenza had not shown that the Commissioner violated the court’s remand
On appeal Cosenza first insists that the Commissioner violated the remand order
by repeating the same analytical errors that were the basis of the district court’s remand
and that the Commissioner therefore should be held in contempt. But, as the court
explained, the ALJ had not issued an unfavorable decision at the time Cosenza filed her
contempt motion. And anyway Cosenza’s challenges to the analysis in the ALJ’s
decision amounted to a request for judicial review, for which she must follow the
procedures outlined in the statute and regulations and wait for a final decision from the
agency. See § 405(g); 20 C.F.R. § 416.1484(a). Because the Commissioner did not violate
any direct command of the remand order, the district court did not err in denying
Cosenza’s contempt motion.
Cosenza next challenges the court’s decision to strike her summary judgment
motion on jurisdictional grounds. She contends that summary judgment in her favor is
warranted because the ALJ on remand failed to fix the errors that the district court had
identified in its remand order. But as the district court explained, a district court lacks
jurisdiction under the Social Security Act to review an ALJ’s unfavorable decision until
the agency’s decision is final. § 405(g). The agency’s decision is not yet final because the
Appeals Council has not yet decided whether to take up review of the ALJ’s decision. See
20 C.F.R. § 416.1484(b). According to an affidavit submitted by an official in the Social
Security Administration’s Office of Appellate Operations, the Appeals Council will not
process Cosenza’s agency appeal until the current civil action is dismissed. Once the
agency issues a final decision, Cosenza may pursue judicial review by filing a new
complaint in the district court.
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