Jamie Cosenza v. Nancy A. Berryhill
Filed opinion of the court PER CURIAM. AFFIRMED. * The court initially resolved this appeal by nonprecedential order. The order is being reissued as an opinion. ** Circuit Judge Posner retired on September 2, 2017. He participated in this case when it was originally issued as a nonprecedential order, but he did not participate in the reissuance of this case as an opinion. See 28 U.S.C. 46(d). Richard A. Posner, Circuit Judge; Michael S. Kanne, Circuit Judge and Diane S. Sykes, Circuit Judge. [6876046-1]  [17-1081]
United States Court of Appeals
For the Seventh Circuit
on behalf of J.M.F., a minor,
Acting Commissioner of Social Security,
Appeal from the United States District Court
for the Central District of Illinois.
No. 1:14-cv-01214-SLD-JEH — Sara Darrow, Judge.
SUBMITTED JULY 5, 2017 — DECIDED JULY 6, 2017 —
OPINION ISSUED OCTOBER 12, 2017 *
The court initially resolved this appeal by nonprecedential order. The
order is being reissued as an opinion.
Before POSNER, ** KANNE, and SYKES, Circuit Judges.
PER CURIAM. 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 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
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
Circuit Judge Posner retired on September 2, 2017. He participated in
this case when it was originally issued as a nonprecedential order, but he
did not participate in the reissuance of this case as an opinion. See
28 U.S.C. § 46(d).
(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 district court filings, the Commissioner filed two
motions: one to strike Cosenza’s summary-judgment 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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