McFadden v. Kijakazi et al

Filing 38

MEMORANDUM OPINION. Signed by Judge Stephanie A. Gallagher on 3/10/2025. (hmls, Deputy Clerk)

UNITED STATES DISTRICT COURT
DISTRICT OF MARYLAND
CHAMBERS OF
STEPHANIE A. GALLAGHER
UNITED STATES DISTRICT JUDGE

101 WEST LOMBARD STREET
BALTIMORE, MARYLAND 21201
[phone]
Fax [phone]
[e-mail]

March 10, 2025
LETTER ORDER
Re: Stephen M. v. Leland Dudek, Acting Commissioner, Social Security
Administration 1
Civil Case No. SAG-23-2456
Dear Plaintiff and Counsel:
On September 8, 2023, Plaintiff Stephen M. (“Plaintiff”), proceeding pro se, commenced
this action against the Commissioner of the Social Security Administration (“Commissioner”) and
several other Defendants. ECF No. 1. The Social Security Administration (“SSA”) moved to
dismiss all Defendants except the Commissioner. ECF No. 15. The Court granted the SSA’s
motion on April 12, 2024, and as a result, “Plaintiff’s mandamus, Section 405(g), and declaratory
judgment claims against the Commissioner will proceed.” ECF No. 23. I have considered the
record in this case (ECF No. 17), Plaintiff’s Motion for Summary Judgment and supplemental
document (ECF Nos. 28, 29), the SSA’s Motion to Dismiss, or in the alternative, Motion for
Summary Judgment (ECF No. 33), and Plaintiff’s Response and supplemental documents (ECF
Nos. 35, 36, 37). I find that no hearing is necessary. See Loc. R. 105.6 (D. Md. 2023). The Court
must uphold the decision of the SSA if it is supported by substantial evidence and if the SSA
employed proper legal standards. See 42 U.S.C. §§ 405(g), 1383(c)(3); Craig v. Chater, 76 F.3d
585, 589 (4th Cir. 1996). For the reasons set forth below, the Court will DENY Plaintiff’s Motion
and GRANT the SSA’s Motion.
I.

PROCEDURAL BACKGROUND

Plaintiff has filed for Disability Insurance Benefits (“DIB”) four times, in 1988, 2000,
2014, and 2018. Tr. 99. This Court affirmed the SSA’s denial of Plaintiff’s 2000 application.
Stephen M. v. Comm’r, Soc. Sec., Civil No. RWT-04-1516 (D. Md. July 6, 2005), report and
recommendation adopted, Civil No. RWT-04-1516 (D. Md. July 25, 2005). This Court also
affirmed the SSA’s denial of Plaintiff’s 2014 application. Stephen M. v. Comm’r, Soc. Sec., Civil
No. PWG-17-3515, 2019 WL 764027 (D. Md. Feb. 21, 2019), report and recommendation
adopted, Civil No. PWG-17-3515, 2019 WL 3546547 (D. Md. Apr. 12, 2019).
1

Plaintiff filed this case against the Commissioner of Social Security on September 8, 2023. ECF
No. 1. Leland Dudek became the Acting Commissioner of Social Security on February 16, 2025.
Accordingly, Commissioner Dudek has been substituted as this case’s Defendant pursuant to
Federal Rule of Civil Procedure 25(d). See Fed. R. Civ. P. 25(d).

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Plaintiff filed his most recent Title II application for DIB in October 2018, alleging a
disability period of August 10, 1987 to June 30, 1994. Tr. 96, 347-50. Plaintiff’s claims were
denied initially and on reconsideration. Tr. 96, 108-11, 119-25. The Administrative Law Judge
(“ALJ”) dismissed Plaintiff’s request for a hearing on August 19, 2020. Tr. 76-83. After the
Appeals Council declined Plaintiff’s request for review, Plaintiff sought this Court’s review. Tr.
84-86. The Court remanded Plaintiff’s case to the SSA for further proceedings with the consent
of both parties. Tr. 86; see Stephen M. v. Kijakazi, Civil No. DKC-21-1663, ECF No. 33 (D. Md.
June 15, 2022).
On remand, the Appeals Council vacated the ALJ’s decision and remanded the case to the
ALJ. Tr. 87-91. The ALJ dismissed Plaintiff’s request for a hearing on October 6, 2022, under
the doctrine of res judicata, and found there was no basis to vacate a prior dismissal or reopen a
prior decision. Tr. 92-107. The Appeals Council denied Plaintiff’s written exceptions and found
no reason to assume jurisdiction, Tr. 1-6, so the ALJ’s October 6, 2022 decision constitutes the
final, reviewable decision of the SSA, Sims v. Apfel, 530 U.S. 103, 106–07 (2000); see also 20
C.F.R. § 422.210(a).
II.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(1) governs motions to dismiss for lack of subject
matter jurisdiction. Fed. R. Civ. P. 12(b)(1). While the plaintiff bears the burden of proving that
a court has jurisdiction over the claim or controversy at issue, a Rule 12(b)(1) motion should be
granted “only if the material jurisdictional facts are not in dispute and the moving party is entitled
to prevail as a matter of law.” Ferdinand-Davenport v. Children’s Guild, 742 F. Supp. 2d 772,
777 (D. Md. 2010) (quoting Evans v. B.F. Perkins Co., a Div. of Standex Int’l Corp., 166 F.3d
642, 647 (4th Cir. 1999)). In a motion to dismiss for lack of subject matter jurisdiction, the
pleadings should be regarded as “mere evidence on the issue,” and courts may “consider evidence
outside the pleadings without converting the proceeding to one for summary judgment.” Evans,
166 F.3d at 647 (quoting Richmond, Fredericksburg & Potomac R.R. v. Unites States, 945 F.2d
765, 768 (4th Cir. 1991)).
A pro se plaintiff’s complaint should not be dismissed “unless it appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1987) (quoting Haines v. Kerner, 404 U.S. 519,
521 (1972)) (quotation and citation omitted). Pro se filings, “however unskillfully pleaded, must
be liberally construed.” Noble v. Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994) (citing Vinnedge v.
Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)).
III.

ANALYSIS

Plaintiff asserts various bases for subject matter jurisdiction: the Social Security Act, the
United States Constitution, the Mandamus Act, federal question jurisdiction, and the Declaratory
Judgment Act. See ECF Nos. 1, 28. The SSA counters that Plaintiff lacks subject matter
jurisdiction under each of the alleged jurisdictional bases. See ECF No. 33-1. The Court finds no
basis for subject matter jurisdiction; the Court addresses each jurisdictional basis in turn.

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A. Jurisdiction to Review Application of Res Judicata under the Social Security Act
First, the SSA argues that the Court lacks subject matter jurisdiction under the Social
Security Act because the ALJ properly applied res judicata to bar Plaintiff’s 2018 application.
ECF No. 33-1, at 6-19. The Social Security Act provides, in relevant part:
Any individual, after any final decision of the Commissioner of Social Security
made after a hearing to which he was a party, irrespective of the amount in
controversy, may obtain a review of such decision by a civil action commenced
within sixty days after the mailing to him of notice of such decision or within such
further time as the Commissioner of Social Security may allow.
42 U.S.C. § 405(g). Section 405(h) of the SSA further provides that “[n]o findings of fact or
decision of the Commissioner of Social Security shall be reviewed by any person, tribunal, or
governmental agency except as herein provided.” 42 U.S.C. § 405(h). Thus, § 405(g) is generally
“the sole avenue for judicial review of all claim[s] arising under” the SSA. See Heckler v. Ringer,
466 U.S. 602, 602 (1984) (quotation and citation omitted).
The SSA can apply the doctrine of res judicata to avoid claimants “indefinitely
extend[ing]” the adjudication of the claimant’s claims after a denial of benefits. Easley v. Finch,
431 F.2d 1351, 1353 (4th Cir. 1970). An ALJ can apply res judicata to dismiss a hearing request
if the SSA “made a previous determination or decision . . . about [a claimant’s] rights on the same
facts and on the same issue or issues, and this previous determination or decision has become final
by either administrative or judicial action[.]” 20 C.F.R. § 404.957(c)(1). When a claimant appeals
a dismissal on the basis of res judicata, “the district court has jurisdiction to determine, as
appropriate, whether res judicata has properly been applied, or whether, though res judicata might
properly have been applied, the claim has nevertheless been reopened.” McGowen v. Harris, 666
F.2d 60, 66 (4th Cir. 1981) (citing Farley v. Califano, 599 F.2d 606, 608 (4th Cir. 1979)). The
court’s examination of the SSA’s application of res judicata is an exercise of the court’s “inherent
jurisdiction to determine its own jurisdiction.” Id. (citing Texas & Pac. Ry. v. Gulf, Colo. & Santa
Fe Ry., 270 U.S. 266, 274 (1926)).
Here, the ALJ dismissed Plaintiff’s request for a hearing under res judicata because
Plaintiff’s current 2018 application had been previously adjudicated in an administratively final
decision. Tr. 99-102. Specifically, in 2002, an ALJ adjudicated Plaintiff’s 2000 application for
DIB benefits from Plaintiff’s alleged onset date, August 7, 1987, through his date last insured,
June 30, 1994; the ALJ denied Plaintiff’s claim at step two. Tr. 35-43. The instant ALJ noted that
the ALJ’s 2002 decision became administratively final when this Court affirmed the SSA’s denial
of Plaintiff’s 2000 application and Plaintiff did not appeal. Tr. 101; see Stephen M. v. Comm’r,
Soc. Sec., Civil No. RWT-04-1516 (D. Md. July 6, 2005), report and recommendation adopted,
Civil No. RWT-04-1516 (D. Md. July 25, 2005).
In 2016, an ALJ adjudicated Plaintiff’s 2014 application for DIB benefits for the same
period—August 7, 1987, through June 30, 1994; the ALJ dismissed Plaintiff’s claim under the
doctrine of res judicata. Tr. 44-46. This Court affirmed the SSA’s denial of Plaintiff’s 2014

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application, concluding that “the ALJ properly applied res judicata in dismissing Plaintiff’s claim”
because “Plaintiff’s current claim was based on ‘the same facts and same issues’ as his 2000
application” and “covered the same time period.” Stephen M., 2019 WL 764027, at *2.
Yet again, Plaintiff’s current 2018 application covered the same time period—August 10,
1987, through June 30, 1994. 2 Tr. 96, 347-50. Additionally, Plaintiff’s current claim does not rest
on any material changes in the issues or the facts. Tr. 100-01. As such, the ALJ properly applied
res judicata in dismissing Plaintiff’s claim.
Plaintiff alleges four bases for his assertion that the ALJ should not have applied res
judicata to his claim: (1) separation of powers and Appointments Clause; (2) revision to immune
system disorders listing; (3) new and material evidence; and (4) defects in the ALJs’ earlier
decisions evaluating Plaintiff’s 1988, 2000, and 2014 applications. ECF No. 28, at 4-23. The SSA
argues that each of these bases lack merit, ECF No. 33-1, at 6-19; the Court agrees.
1. Plaintiff’s Separation of Powers and Appointments Clause Arguments
First, Plaintiff challenges the ALJs’ decisions adjudicating his 1988, 2000, and 2014
applications based on the separation of powers doctrine, under Seila Law LLC v. Consumer Fin.
Prot. Bureau, 591 U.S. 197 (2020), asserting that the position of Commissioner of Social Security
was found to be unconstitutional, therefore, the “rules put together by a Commissioner under the
current structure are unconstitutional because the Commissioner never had authority to put them
in place[.]” ECF No. 28, at 21-23. The SSA counters that Plaintiff’s constitutional argument
based on separation of powers is meritless. ECF No. 33-1, at 8-10. The Court agrees.
In Seila Law, the Supreme Court held that the Consumer Financial Protection Bureau’s
removal structure—where the agency was led by a single director removable only for good cause—
violated the separations of powers doctrine. 591 U.S. at 213. A year later, in Collins v. Yellen,
“the Supreme Court determined that a single head of an agency of the executive branch cannot
serve for a longer term than the President when [the agency head] may only be removed for cause,
as this constitutes a separation of powers violation.” Senora M. v. Kijakazi, No. BPG-21-857,
2022 WL 1714883, at *3 (D. Md. Mar. 4, 2022) (citing Collins, 594 U.S. 220, 249 (2021)). “The
SSA employs this structure, as it is an executive agency run by a single agency head who is
appointed to a six-year term and can only be removed for cause by the President.” Id. (citing 42
U.S.C. § 902(a)(3)). Collins, however, also reiterated that, as set forth in Seila Law, “a plaintiff
that challenges a statutory restriction on the President’s power to remove an executive officer can
establish standing by showing that it was harmed by an action that was taken by such an officer
and that the plaintiff alleges was void.” 594 U.S. at 258 n.24 (citing Seila Law, 591 U.S. at 20911). Here, Plaintiff has not alleged that Commissioner Apfel, who led the SSA at the time the ALJ
denied Plaintiff’s 1988 application; that Commissioner Barnhart, who led the SSA at the time the
2

While August 10, 1987 is a different alleged onset date than the alleged onset date in Plaintiff’s
earlier applications, Plaintiff’s alleged onset date of August 10, 1987 is encompassed in the earlier
applications’ period of disability alleged from August 7, 1987 through June 30, 1994.

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ALJ denied Plaintiff’s 2000 application; or that Acting Commissioner Colvin, who led the SSA at
the time the ALJ denied Plaintiff’s 2014 application, played any role in these ALJs’ decisions. See
Senora M., 2022 WL 1714883, at *3 (rejecting a separation of powers argument on similar
grounds); Vanessa B.-S. v. Kijakazi, No. 23-0214-BAH, 2023 WL 6245320, at *3 (D. Md. Sept.
26, 2023) (same). As such, Plaintiff lacks standing to bring this constitutional argument, and
Plaintiff’s argument that res judicata should not have been applied based on a violation of
separation of powers is meritless.
Second, Plaintiff alleges that the ALJs’ decisions on his 1988, 2000, and 2014 applications
“were made by improperly appointed ALJs with no lawful authority and do not constitute res
judicata” based on the Appointments Clause. ECF No. 28, at 21-22 (emphasis omitted). The SSA
counters that “Plaintiff’s Appointments Clause argument provides no basis for relief.” ECF No.
33-1, at 11-12. The Court agrees.
In Lucia v. Sec. & Exch. Comm’n, 585 U.S. 237 (2018), the Supreme Court held that
Securities and Exchange Commission ALJs were “Officers of the United States” and therefore had
to be appointed by the agency head, the president, or a court of law under the Appointments Clause
of the U.S. Constitution. 585 U.S. at 244-45 (citing U.S. Const. art. II, § 2, cl. 2). In response to
that ruling, on July 16, 2018, Acting Commissioner Nancy Berryhill reappointed the SSA’s ALJs
and Appeals Council judges. Carr v. Saul, 593 U.S. 83, 86-87 (2021); see Social Security Ruling
19-1p, 2019 WL 1324866, at *2 (S.S.A. Mar. 15, 2019).
The claimants in Lucia challenged that Acting Commissioner Berryhill lacked lawful
authority under the Federal Vacancies Reform Act at the time she reappointed the SSA’s ALJs and
Appeals Council judges, entitling the claimants to new hearings before properly appointed ALJs.
Rush v. Kijakazi, 65 F.4th 114, 117 (4th Cir. 2023). The Fourth Circuit, however, unequivocally
rejected this argument. In Rush, the Fourth Circuit held that Acting Commissioner Berryhill was
“properly serving as SSA Acting Commissioner when she ratified the ALJs’ appointments.” Rush,
65 F.4th at 124.
Here, as the SSA posits, Plaintiff does not dispute that the ALJ in 2022, denying Plaintiff’s
2018 application, “was appointed in accordance with the Appointments Clause at all relevant
times.” ECF No. 33-1, at 11. The SSA asserts that Plaintiff “cannot collaterally attack” the ALJs’
earlier decisions, urging the Court to reject Plaintiff’s claim that the previous ALJs “were not
properly appointed at th[e] time” of the earlier ALJs’ decisions and that the ALJ in 2022 “should
not have given res judicata effect to those prior decisions.” Id. (citing Hughes v. Kijakazi, No.
5:21-905-KDW, 2022 WL 3714627, at *16 (D.S.C. Aug. 29, 2022) (finding that plaintiff “in no
way dispute[d] the constitutionality of the [current ALJ] appointment”; plaintiff could not
“collaterally attack the 2015 ALJ decision at this point”; and that Lucia does not require remand
where “[t]he application now under consideration was filed after ALJ appointments were
ratified.”); Colbert v. Comm’r of Soc. Sec. Admin., No. 5:20-CV-2234, 2022 WL 556738, at *2
(N.D. Ohio Feb. 24, 2022) (“Plaintiff points to no law that would allow the [c]ourt to reach back
and declare the decision of that previous [“improperly appointed”] ALJ unreliable.”)); see Lisa W.
v. Kijakazi, No. 2:20-CV-00590, 2021 WL 6101825, at *11 (E.D. Va. Sept. 28, 2021) (finding that
Lucia does not prohibit ALJs from relying on prior ALJ decisions that had been “rendered before

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the Acting Commissioner’s ratification of ALJ appointments”), report and recommendation
adopted, No. 2:20CV590, 2021 WL 5412585 (E.D. Va. Nov. 19, 2021). As such, the Court finds
Plaintiff’s assertion, that the ALJ should not have applied res judicata to his claim based on the
Appointments Clause, meritless.
2. Revision to Immune System Disorders Listing
Plaintiff argues that the ALJ should not have applied res judicata to his claim because the
listings for immune system disorders changed after his 2000 application and he was diagnosed
with a “Primary” Immune Disorder in 2019, after the dismissal of his 2014 application; therefore,
the ALJ should have made a new substantive determination as directed by the SSA’s Program
Operations Manual System (“POMS”), DI 27516.010. 3 ECF No. 28, at 5-9. The SSA counters
that because the ALJ denied Plaintiff’s 2000 application at step two of the five-step sequential
evaluation process, see 20 C.F.R. § 404.1520, and did not proceed to step three to determine if an
impairment met or equaled the requirements of a listed impairment, “any later change in the Listing
of Impairments is irrelevant.” ECF No. 33-1, at 12. The SSA argues that this Court not only
affirmed the ALJ’s 2002 “decision as supported by substantial evidence”; but this Court also
rejected a similar argument by Plaintiff in 2019, explaining at that time that “[t]he ALJ’s [2002]
decision did not rely at all on the listings, which are only evaluated at step three of the evaluation
process. Therefore, the ALJ’s decision in Plaintiff’s 2000 application need not be reassessed based
on revisions to the listings.” Id. at 13 (citing Stephen M., 2019 WL 764027, at *3). The Court
reaches the same conclusion here.
The ALJ is required to evaluate a claimant’s disability determination using a five-step
sequential evaluation process. See 20 C.F.R. §§ 404.1520, 416.920. “Under this process, an ALJ
evaluates, in sequence, whether the claimant: ‘(1) worked during the alleged period of disability;
(2) had a severe impairment; (3) had an impairment that met or equaled the requirements of a listed
impairment; (4) could return to [the claimant’s] past relevant work; and (5) if not, could perform
any other work in the national economy.’” Kiser v. Saul, 821 F. App’x 211, 212 (4th Cir. 2020)
(citation omitted) (quoting Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012)).
As relevant here, at step one in Plaintiff’s 2000 application, the ALJ determined that
Plaintiff had “not engaged in substantial gainful activity since the alleged onset of disability.” Tr.
39, 43. The ALJ therefore proceeded to step two and found that Plaintiff did not have a severe
impairment because Plaintiff “d[id] not have an impairment that imposes even minimal restrictions
on [his] ability to perform basic work tasks.” Tr. 40, 43. In accordance with the regulations, the
ALJ ended the evaluation at step two and found Plaintiff not disabled. 20 C.F.R.
§ 404.1520(a)(4)(ii) (“If [the claimant] does not have a severe medically determinable physical or
mental impairment that meets the duration requirement in § 404.1509, or a combination of
impairments that is severe and meets the duration requirement, [the SSA] will find that [the
claimant is] not disabled.”). Because the ALJ did not proceed to step three, the ALJ’s decision did
not rely on the listings. Therefore, as this Court found in Stephen M., 2019 WL 764027, at *3, the
3

Notably, POMS is considered a “nonbinding policy statement[] and guidance document[].”
Patterson v. Comm’r, Soc. Sec. Admin., 846 F.3d 656, 661 (4th Cir. 2017).

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ALJ’s decision evaluating Plaintiff’s 2000 application did not rely on the listings, as such, the
decision “need not be reassessed based on revisions to the listings.”
3. Reopening Decisions Based on New and Material Evidence
Plaintiff argues that res judicata should not bar his claims because he submitted new and
material evidence. ECF No. 28, at 7-9. Specifically, Plaintiff argues that new evidence of a
diagnosis of specific antibody deficiency and chronic infections preclude the application of res
judicata. Id., at 3-9. The SSA counters that the ALJ correctly applied res judicata because “the
ALJ properly reviewed this evidence and correctly determined that it was not material to the
ultimate question as to whether Plaintiff was disabled prior to June 1994.” ECF No. 33-1, at 13.
As an initial matter, Plaintiff faults the ALJ for evaluating whether to reopen Plaintiff’s
prior 2002 dismissal or vacating the prior dismissal from 2016. 4 ECF No. 28, at 20-21. However,
as the SSA correctly asserts, “the district court has jurisdiction to determine, as appropriate,
whether res judicata has properly been applied, or whether, though res judicata might properly
have been applied, the claim has nevertheless been reopened.” ECF No. 33-1, at 15 (citing
McGowen, 666 F.2d at 66).
The SSA’s regulations allow cases which are otherwise final to be reopened, 20 C.F.R.
§ 404.988, and “[a] decision that is subject to being reopened provides an inappropriate bar” on
grounds of res judicata. Grose v. Cohen, 406 F.2d 823, 825 (4th Cir. 1969). Within four years of
“the notice of the initial determination,” the SSA may reopen for good cause, such as “[n]ew and
material evidence,” or if the evidence relied on “clearly shows on its face that an error was made.”
20 C.F.R. §§ 404.988(b), 404.989. If more than four years passed after the notice of the initial
determination, the case may only be reopened for the specific reasons listed in 20 C.F.R.
§ 404.988(c), which include reasons such as fraud, clerical error, and criminal convictions
affecting the right to receive benefits.
Plaintiff has not alleged any circumstances that warrant reopening under 20 C.F.R.
§ 404.988(c). Instead, pursuant to 20 C.F.R. § 404.988(b), the ALJ determined that an inquiry into
whether Plaintiff’s evidence was “new and material” is not applicable because “[m]ore than four
years have elapsed from multiple prior decisions that became administratively final.” Tr. 102-07.
In any event, the ALJ examined the additional evidence and found it did not meet the “new and
material” standard. Tr. 104-07. Specifically, the ALJ evaluated Dr. David Buscher’s medical
opinion on, among other things, Plaintiff’s chronic infections, appendicitis, and inflammation,
concluding that the evidence was not material because it did “not show facts that would have
4

The ALJ declined to vacate the 2016 dismissal because “regardless of whether the evidence . . .
presented was new and material, . . . doing so would not be timely.” Tr. 103 (citing 20 C.F.R.
§ 404.960(a) (If a claimant wishes to request to vacate a dismissal of a request for a hearing, the
claimant “must do so within 60 days of the date [the claimant] receive[s] notice of the dismissal, .
. . If the Appeals Council decides to vacate a dismissal on its own motion, it will do so within 60
days of the date we mail the notice of dismissal[.]”)).

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resulted in a different conclusion had it been available at the time of the determination or decision.”
Tr. 105-06. The ALJ also evaluated evidence of Plaintiff’s 2019 diagnosis of specific antibody
deficiency, finding the evidence to be neither new nor material because the evidence did not relate
back to his date last insured of 1994, and that regardless, Plaintiff’s additional evidence would not
change the outcome of the ALJ’s decisions in 2002 or 2016. Tr. 106-07. The Court finds that the
ALJ correctly found any request to reopen Plaintiff’s claim on the basis of new and material
evidence to be untimely, and that even if the request was timely, Plaintiff’s additional evidence
does not meet the new and material standard for reopening his claim.
Additionally, in response to Plaintiff’s motion to dismiss, or in the alternative, motion for
summary judgment, Plaintiff claims that he was diagnosed with Aplastic Anemia in November
2023, after the ALJ’s 2022 decision. ECF No. 35, at 7-9, 17. To support his claim, Plaintiff
provides several graphs showing his platelets, hemoglobin, and white blood cell levels and his
weight loss. See ECF Nos. 36, 37. New evidence is material where it is not cumulative and there
is “a reasonable possibility that the new evidence would have changed the outcome.” Meyer v.
Astrue, 662 F.3d 700, 705 (4th Cir. 2011) (citing Wilkins v. Sec’y, Dep’t of Health & Human
Servs., 953 F.2d 93, 96 (4th Cir. 1991)). Here, it is unclear to the Court how these graphs, which
do not state that Plaintiff was diagnosed with Aplastic Anemia, had symptoms related to Aplastic
Anemia, or mention the term “Aplastic Anemia”, support that the outcome of the ALJ’s 2022
decision would have changed based on the alleged new diagnosis of Aplastic Anemia.
4. Issues Related to Plaintiff’s 1988, 2000, and 2014 Applications
Plaintiff alleges various defects in the adjudications of his 1988, 2000, and 2014
applications. ECF No. 28, at 10-11, 14-20. As to Plaintiff’s 1988 application, Plaintiff challenges
the ALJ’s evaluation of his treating physician’s medical opinion. Id., at 14-15. As to Plaintiff’s
2000 application, Plaintiff alleges that the ALJ’s decision contained misrepresentations and
reflected a “bias” against chemical injury and environmental illness claims. Id., at 15-20. As to
Plaintiff’s 2014 application, Plaintiff alleges that certain evidence was not reviewed. Id., at 10-11.
The SSA urges the Court to reject these arguments because Plaintiff’s 1988 and 2000
applications “have been administratively final for over 20 years and the time to reopen these
decisions has long since passed[,]” and that even if these arguments were timely, “the ALJ’s
conclusions regarding the evaluations of his claim is not sufficient grounds to reopen.” ECF No.
33-1, at 17. The SSA also asserts, as to Plaintiff’s 2014 application, “the dismissal for a request
for a hearing was already upheld as proper under res judicata by this Court in 2019.” Id., at 1718. The Court finds that Plaintiff has not asserted any cognizable grounds that res judicata should
not be applied to Plaintiff’s 2018 application based on these alleged defects in Plaintiff’s earlier
applications.
B. Constitutional Claims
A court may have jurisdiction to hear constitutional challenges related to a Social Security
claim, even if there is no jurisdiction under 42 U.S.C. § 205(g), because to do otherwise would

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“effectively [close] the federal forum to the adjudication of colorable constitutional claims.”
Califano v. Sanders, 430 U.S. 99, 109 (1977). However, only in “rare instances” would a denial
of a request to reopen a claim be challenged on a colorable constitutional basis. Id. The Court
finds that this case is not one of those rare instances.
Plaintiff alleges various violations of his due process rights, including that the SSA failed
to provide his 1988 and 2000 claim files to the reconsideration state agency medical consultant for
his 2018 application, failed to “enter Plaintiff’s DVD of his medical records 1983-2018 into the
record,” and the Disability Determination Services (“DDS”) “lost” his prior claim files and
“suppressed evidence.” ECF No. 28, at 10-14, 26. Plaintiff also states that he has “an Equal
Protection right not to be disadvantaged in such determinations as compared to others with
different medical diagnoses, treating physicians, state of residence, size of claim file, or
representational status.” Id., at 26 n.75. The SSA maintains that the ALJ “gave Plaintiff ample
opportunity to submit any evidence he wanted the ALJ to review on his claim.” ECF No. 33-1, at
16. On July 23, 2022, the ALJ gave Plaintiff one month to submit additional evidence; Plaintiff
asked for an extension until September 2, 2022, which the ALJ granted; and the ALJ left the record
open for Plaintiff to submit additional evidence until October 2, 2022. Tr. 96-97; see Tr. 2
(Appeals Council noting that the ALJ “left the record open longer than [Plaintiff] requested and
after [Plaintiff was] sent an entire copy of [Plaintiff’s] file.”). The SSA asserts that the ALJ
reviewed “the entirety of Plaintiff’s 13,500+ page file,” properly determined that res judicata
barred Plaintiff’s claim, and that “Plaintiff’s complaints regarding the DDS do not undermine the
ALJs decision.” ECF No. 33-1, at 16-17.
The Court finds no basis to suggest that Plaintiff’s due process rights were violated.
Careful review of the record reflects that the ALJ considered “the record and the additional
submissions from” Plaintiff. Tr. 97. Even if Plaintiff is correct that additional files or medical
evidence is missing from the administrative record, Plaintiff’s time to submit additional new and
material evidence has expired, as found above. Moreover, Plaintiff’s constitutional claim related
to his Equal Protection rights was rejected by this Court in his previous appeal. See Stephen M.,
2019 WL 764027, at *4. The Court finds no reason to revisit this claim. As such, this Court must
find that it does not have jurisdiction based on constitutional violations because Plaintiff does not
assert a colorable constitutional claim.
C. Mandamus Jurisdiction, 28 U.S.C. § 1361
The Supreme Court and Fourth Circuit have not expressly decided whether 42 U.S.C.
§ 405(h) forecloses the courts’ jurisdiction to hear mandamus claims arising under the Social
Security Act. 5 See Heckler, 466 U.S. at 616 (“We have on numerous occasions declined to decide
5

Plaintiff cites to Binder & Binder PC v. Barnhart, 399 F.3d 128 (2nd Cir. 2005), and Pronti v.
Barnhart, 339 F. Supp. 2d 480 (W.D.N.Y. 2004), to support his claim for mandamus jurisdiction,
as well as the other bases of jurisdiction he alleges. ECF No. 1, at 10. This Court in its 2019
decision, affirming the dismissal of the request for a hearing of Plaintiff’s 2014 application, noted
these “decisions are not binding on this Court.” Stephen M., 2019 WL 764027, at *4. The Court

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whether the third sentence of § 405(h) bars mandamus jurisdiction over claims arising under the
Social Security Act[.]”); Monger v. Brown, 817 F.2d 15, 17 n.2 (4th Cir. 1987). Mandamus is a
“drastic [remedy], to be invoked only in extraordinary situations.” Kerr v. U.S. Dist. Court for N.
Dist. of Cal., 426 U.S. 394, 402 (1976). It is available only when a plaintiff “has exhausted all
other avenues of relief and only if the defendant owes him a clear nondiscretionary duty.” Heckler,
466 U.S. at 616-617.
Plaintiff alleges that the Court has mandamus jurisdiction over his claim because in over
three decades of his proceedings, the SSA has not had a physician “review the entirety of Plaintiff’s
medical records since new and material medical evidence and new issues became available such
that res judicata of Plaintiff’s prior 1988 and 2000 determinations does not hold.” ECF No. 28, at
4-5 (emphasis omitted). The SSA counters that the ALJ properly applied res judicata “as an
administratively final prior decision existed regarding the relevant time period, there were no new
issues, and the evidence Plaintiff provided was not ‘new or material’ as to Plaintiff’s functioning
prior to the expiration of his date last insured in June 1994.” ECF No. 33-1, at 20. The Court
agrees.
As Judge Grimm found in Plaintiff’s 2019 appeal, “[b]ecause the SSA properly applied res
judicata, Plaintiff has failed to show that the SSA owed him a clear nondiscretionary duty to hold
a hearing for his most recent disability application.” Stephen M., 2019 WL 3546547, at *1. The
Court reaches the same conclusion here. Because the ALJ properly applied res judicata to
Plaintiff’s 2018 application, Plaintiff has failed to show that the SSA owed him a clear
nondiscretionary duty to hold a hearing for his most recent disability application. As such, even
assuming arguendo that mandamus is an accepted source of jurisdiction for Social Security cases,
Plaintiff has failed to establish mandamus jurisdiction.
D. Federal Question Jurisdiction, 28 U.S.C. § 1331
Plaintiff asserts that the Court has federal question jurisdiction under 28 U.S.C. § 1331.
ECF No. 1, at 10. Generally, sovereign immunity protects the federal government and its agencies
from being sued, absent an express waiver. See Fed. Deposit Ins. Corp. v. Meyer, 510 U.S. 471,
475 (1994). The Social Security Act contains an exclusive remedy provision that expressly bars
claimants from bringing actions relating to Social Security claims under 28 U.S.C. § 1331. See 42
U.S.C. § 405(h) (“No action against the United States, the Commissioner of Social Security, or
any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover
on any claim arising under this subchapter.”). Instead, jurisdiction over cases “arising under”
Social Security exists only under 42 U.S.C. § 405(g), which requires a final agency decision in
advance of judicial review. See 42 U.S.C. § 405(g) (“Any individual, after any final decision of
the Commissioner of Social Security made after a hearing to which he was a party, irrespective of
the amount in controversy, may obtain a review of such decision by a civil action.”); but see
Califano, 430 U.S. at 108-09 (recognizing exceptions when holding otherwise effectively “close[]
the federal forum to the adjudication of colorable constitutional claims.”). As previously
discussed, Plaintiff does not have a colorable constitutional claim collateral to his claim for
reaches the same conclusion here.

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benefits. Accordingly, subject matter jurisdiction does not exist under 28 U.S.C. § 1331.
E. Jurisdiction Under the Declaratory Judgment Act
Lastly, Plaintiff asserts that the Court has jurisdiction under the Declaratory Judgment Act
pursuant to 28 U.S.C. §§ 2201 and 2202. ECF No. 28, at 4, 26-27. The SSA counters that “[t]his
same argument was rejected by this Court in its 2019 decision affirming the dismissal of the request
for a hearing of Plaintiff’s 2014 application[.]” ECF No. 33-1, at 21. As this Court determined in
2019, the Declaratory Judgment Act provisions, 28 U.S.C. §§ 2201 and 2202:
provide declaratory relief as an additional remedy, and permit a “federal court to
declare the rights of a party whether or not further relief is or could be sought.”
Int’l Coal. for Religious Freedom v. State of Md., 3 F. App’x 46, 51 (4th Cir. 2001)
(quoting Green v. Mansour, 474 U.S. 64, 72 (1985)). However, “[i]t is apparent
that the plaintiff may not allege jurisdiction solely under 28 U.S.C. §§ 2201 or 2202.
Those sections do not extend the jurisdiction of the federal courts but merely extend
the range of remedies available in cases which otherwise fall within the jurisdiction
of the courts.” Evans v. Chesapeake & Potomac Tel. Co. of Md., Civil Action No.
M-80-2898, 1981 WL 145, at *2 (D. Md. Apr. 2, 1981) (citing Skelly Oil Co. v.
Phillips Petroleum Co., 339 U.S. 667 (1950)). Therefore, 28 U.S.C. §§ 2201 and
2202 provide no independent basis of subject matter jurisdiction.
Stephen M., 2019 WL 764027, at *5 (brackets in original). The Court reaches the same conclusion
here. The Court finds that it does not have jurisdiction over Plaintiff’s claim based on the
Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, because these provisions do not provide
an independent basis of subject matter jurisdiction. Having found no basis for subject matter
jurisdiction, the Court grants the SSA’s Motion to Dismiss for lack of subject matter jurisdiction.
IV.

CONCLUSION

For the reasons set forth herein, Plaintiff’s motion for summary judgment, ECF No. 28, is
DENIED, Defendant’s motion to dismiss or, in the alternative, for summary judgment, ECF No.
33, is treated as a motion to dismiss and GRANTED for lack of subject matter jurisdiction. The
clerk is directed to CLOSE this case.
Despite the informal nature of this letter, it should be flagged as a Memorandum Opinion.
A separate implementing Order follows.
Sincerely yours,
/s/
Stephanie A. Gallagher
United States District Judge