Collins v. SSA

Filing 15

MEMORANDUM OPINION AND ORDER: Dft Nancy A. Berryhill's Motion to Dismiss for Lack of Jurisdiction 12 is GRANTED. This matter is DISMISSED and STRICKEN from docket. Signed by Judge Danny C. Reeves on 11/16/2017. (RCB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at Pikeville)
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REX COLLINS,
Plaintiff,
V.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
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Civil Action No. 7: 17-94-DCR

MEMORANDUM OPINION
AND ORDER

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Defendant Nancy A. Berryhill, Acting Commissioner of Social Security, has moved to
dismiss this case for lack of jurisdiction. [Record No. 12] The Administrative Law Judge
(“ALJ”) assigned to this matter denied the plaintiff’s request for a hearing on res judicata
grounds. [Id.] Defendant Berryhill contends that, because the ALJ’s decision was made on
for this reason and without a hearing, there has not been a final decision after a hearing, and
this Court lacks jurisdiction. [Id.] As explained below, the Court agrees with the position
taken by defendant and her motion will be granted.
The Social Security Act only provides for judicial review of a “final decision of the
Commissioner of Social Security made after a hearing.” 42 U.S.C. § 405(g); Califano v.
Sanders, 430 U.S. 99, 108 (1977). The Sixth Circuit has held that “‘[d]enial of a request for a
hearing on grounds of res judicata does not satisfy section 405(g)’s jurisdictional requirement
that there be a final decision of the Secretary made after a hearing in order for the district court
to exercise review.’” Hilmes v. Sec’y of Health & Human Servs., 983 F.2d 67, 69 (6th Cir.
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1993) (quoting Jones v. Sec’y of Health & Human Servs., No. 89-1603, 1990 WL 172565, *2
(6th Cir. Feb. 27, 1990)); see also Bagby v. Harris, 650 F.2d 836, 838 (6th Cir. 1981)
(explaining that when an ALJ denies a request for a hearing on res judicata grounds there is
“nothing to review by the district court”).
However, because “[c]onstitutional questions obviously are unsuited to resolution in
administrative hearing procedures,” Califano, 430 U.S. at 109, there is an exception to §
405(g)’s jurisdictional requirement when the plaintiff presents “colorable constitutional
claim.” Cottrell v. Sullivan, 987 F.2d 342, 345 (6th Cir. 1992). In assessing whether the
plaintiff’s claims trigger this exception, the Court is mindful that “the use of constitutional
language to ‘dress up’ a claim . . . does not convert the argument into a colorable constitutional
challenge.” Ingram v. Sec’y of Health & Human Servs., 830 F.2d 67, 67-68 (6th Cir. 1987)
(quoting Gosnell v. Sec’y of Health & Human Servs., 703 F.2d 216 (6th Cir. 1983)).
In this case, Collins filed an application for disability benefits and a period of disability
on July 14, 2014.

[Record No 12-1, p. 7]

His claim was denied initially and upon

reconsideration, and he filed a request for an administrative hearing on September 12, 2014.
[Id.] The ALJ denied the request for a hearing on March 9, 2016, reasoning that the
Commissioner had previously reached final and binding decision involving the same facts and
issues on December 3, 1998, and so Collins’ request for a hearing was barred by the doctrine
of res judicata. [Id. at p. 8-9] Collins submitted a request for review, which the Appeals
Council denied on March 28, 2017, without providing for a right of judicial review. [Id. at p.
22-23]
Neither the ALJ’s decision denying the plaintiff’s request for a hearing, nor the Appeals
Council’s decision denying the plaintiff’s request for review, constitutes a “final decision of
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the Commissioner of Social Security made after a hearing.” See Hilmes, 983 F.2d at 69; Bagby,
650 F.2d at 838. Accordingly, the Court lacks jurisdiction under 42 U.S.C. § 405(g), unless
the plaintiff has presented a colorable constitutional claim.
Collins’ Complaint does not present a constitutional claim, and he has not sought leave
to amend his Complaint. See Gosnell v. Califano, 625 F.2d 744, 745 (6th Cir. 1980) (holding
that the district court lacked jurisdiction because there was not a final decision after a hearing,
but should permit the plaintiff to amend his complaint to assert a constitutional claim).
However, he argues in his response to the defendant’s motion to dismiss that “constitutional
violations have occurred . . . which warrant the retention of this appeal.” [See Record Nos. 1,
13.] In particular, Collins contends that he was denied of due process because: (i) his file does
not contain records of the social security benefits he received; (ii) the ALJ denied his request
for a hearing; (iii) the prior decisions the ALJ found have preclusive effect are not contained
in the exhibit list or record; and (iv) ALJs have not applied the doctrine of res judicata when
denying some of his claims filed after December 3, 1998. [Record No. 13]
Because Collins’ constitutional claims are contained in a response to a motion, and not
in his Complaint, they are not properly before this Court. Although leave to amend a complaint
is to be “freely given when justice so requires,” Fed. R. Civ. P. 15(a), it is improper for the
Court to construe a response to a motion as an amended complaint without any indication that
the plaintiff intended his response is to be so construed. See Carter v. Colvin, 220 F. Supp. 3d
789, 805 (E.D. Ky. 2016). Further, it would be inappropriate to resolve Collins’ constitutional
arguments at this point, because the Commissioner has not filed “a certified transcript” of the
administrative record, and was not required to do so. See 42 U.S.C. § 405(g). Without the
administrative record, it is difficult to assess the factual allegations underlying Collins’ due
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process claim. However, it is worth noting that, even if Collins’ factual allegations are true,
he has not explained why they would amount to a due process violation, and similar arguments
have been rejected as attempts to dress up abuse of discretion claims as constitutional issues.
See Glazer v. Commn’r Soc. Sec’y, 92 F. App’x 312, 315 (2003); Gosnell v. Sec’y of Health
& Human Servs., 703 F.2d 216 (6th Cir. 1983); Colvin, 220 F. Supp. 3d at 905.
In summary, the Commissioner has not made a final decision after a hearing, and the
plaintiff has not presented a colorable constitutional claim. As a result, this Court lacks
jurisdiction, and this matter must be dismissed. Fed. R. Civ. P. 12(h)(3). Accordingly, it is
hereby
ORDERED that Defendant Nancy A. Berryhill’s Motion to Dismiss for Lack of
Jurisdiction [Record No. 12] is GRANTED. This matter is DISMISSED and STRICKEN
from the docket.
This 16th day of November, 2017.

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