Jennings v. Colvin

Filing 18

MEMORANDUM OPINION. (See Full Opinion.) For the reasons included herein, the Court does not have jurisdiction over Plaintiff's claims and this case is therefore dismissed. A separate judgment in accordance with this Opinion is issued today. Signed by District Judge Catherine D. Perry on 1/15/2016. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
CLIFFORD GLENN JENNINGS,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.

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Case No. 2:14 CV 96 CDP

MEMORANDUM OPINION
In this action plaintiff Clifford Glenn Jennings seeks judicial review of the
decision denying his request to reopen the termination of his Social Security
survivor benefits. I conclude that this Court lacks jurisdiction to review the
Commissioner’s refusal to reopen the decision terminating benefits, and that
plaintiff has not made a colorable showing that his due process rights have been
violated. I will therefore dismiss this case for lack of subject-matter jurisdiction.
Background
Clifford Glenn Jennings’ father died in 1996 when Jennings was a minor.
At that time, Jennings was awarded surviving child’s benefits based on his father’s
earnings record. Those benefits were terminated in 2003 when he was 19. He did
not request review of the agency decision stopping those benefits, and the decision

terminating the benefits has not been made part of the record here. Jennings later
filed for Supplemental Security benefits and child disability benefits in 2007 and
2008, respectively. After a 2009 hearing, an ALJ initially denied these requests for
benefits. That decision was remanded by the Appeals Council. In May 2012 a
second hearing was held before a different ALJ, Judge Debra J. Denney, and later
the same month, Judge Denney issued a fully favorable decision on the two
pending disability applications, approving both requests for benefits dating back to
the alleged disability onset date of September 15, 2006. As part of her decision,
Judge Denney found no good cause to reopen Jennings’ 2003 disability
determination terminating his receipt of survivor benefits. In September 2014, the
Appeals Council denied Jennings’ request for review of the ALJ’s decision. In
this case Jennings challenges only the portion of the decision refusing to reopen the
prior termination of child survivor benefits.
Jennings claims that his 2007 and 2008 applications for benefits acted as a
request to reopen the 2003 termination of benefits, although neither application
mentions the prior determination. In January 2008 Jennings’ attorney sent a letter
to the Office of Disability Adjudication and Review stating that he was requesting
a “Decision on the Record for the Claimant as a Disabled Adult Child dating back
to the time when he was determined ineligible for Social Security.” [Tr. 320] This
letter was forwarded to a Social Security Administration District Manager in
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Moberly, Missouri in December 2008. [Tr. 324] Finally, two days before
Jennings’ 2012 hearing, his attorney sent a brief to Judge Denney asking her to
reopen the prior decision terminating Jennings’ child survivor benefits for good
cause on the basis that Jennings’ mental incapacity kept him from making a timely
request for appeal of that decision. [Tr. 339] He cited to SSR 91-5p, 20 C.F.R. §
404.911(a), and 20 C.F.R. § 416.1411(a).
Judge Denney found no good cause to reopen the previous determination
terminating Jennings’ survivor benefits. In considering whether Jennings lacked
the mental capacity to understand the procedures for requesting review, she
considered the requirements of SSR 91-5p. She then noted that while Jennings had
some deficits at the time of the previous determination, he was able to adaptively
function well enough to attempt some jobs, engage in a relationship, and father a
child. He was able to assist with simple chores around the home, attend car shows,
drive, manage medications and perform one or two step directions with assistance.
Discussion
The only issue before me is whether to reverse or remand the ALJ’s decision
that good cause did not exist to reopen plaintiff’s previous disability determination
terminating his receipt of child survivor benefits in 2003. Plaintiff argues that
when he turned 19, instead of terminating his benefits, the Commissioner should
have found him eligible for disabled child benefits based on his mental retardation.
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Plaintiff claims that he had good cause, based on his mental incapacity, for failing
to timely appeal the Commissioner’s decision. In his initial brief, plaintiff claimed
that the ALJ’s failure to find good cause to reopen the 2003 determination is not
supported by substantial evidence on the record as a whole; in his reply brief,
plaintiff claims that his due process rights were violated. The Commissioner
argues that the court lacks jurisdiction to consider this claim.
I agree with the Commissioner that the court does not have jurisdiction over
plaintiff’s claim that the ALJ’s decision to reopen was not supported by substantial
evidence because such a decision is not considered a final decision of the
Commissioner subject to judicial review. 42 U.S.C. § 405(g) authorizes judicial
review of “any final decision of the Commissioner ... made after a hearing.” See
Mason v. Barnhart, 406 F.3d 962, 964 (8th Cir. 2005). Under § 405(g), courts lack
jurisdiction to review the Commissioner's refusal to reopen a proceeding or extend
the time for review of a determination because such decisions are not considered
“final decision[s] of the Commissioner ... made after a hearing.” 42 U.S.C. §
405(g); see Boock v. Shalala, 48 F.3d 348, 351 (8th Cir.1995); see also Califano v.
Sanders, 430 U.S. 99, 107–08 (1977); Efinchuk v. Astrue, 480 F.3d 846, 848 (8th
Cir. 2007). However, jurisdiction may exist if the claimant makes a colorable
constitutional claim challenging the Commissioner’s refusal to reopen the
proceeding. See Efinchuck, 480 F.3d at 848.
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Plaintiff did not make any constitutional argument in his initial brief. In his
reply brief, Plaintiff argues that his due process rights were or will be violated.
First he states that if he is denied an opportunity to appeal the ALJ’s decision, he
will lose a level of appeal that other claimants are allowed to exercise, which
would be a denial of due process. This argument fails because Plaintiff has no due
process right to judicial review of a decision denying a request to reopen.
Plaintiff has also argued that the ALJ’s decision violated his due process
rights because it does not “make sense and quote cogent reasons for a denial” or
“comport with the facts and evidence.” This sounds very much like an argument
that the ALJ’s decision was not supported by substantial evidence, but because it
can arguably be construed as a substantive due process claim, I will address it.
A plaintiff alleging a substantive due process claim “must demonstrate that
the government action complained of is truly irrational.…” Ganley v. Minneapolis
Park & Recreation Bd., 491 F.3d 743, 749 (8th Cir. 2007). The state actor's
conduct must be egregious. It must be “arbitrary, or conscience shocking, in a
constitutional sense.” Skokos v. Rhoades, 440 F.3d 957, 962 (8th Cir. 2006). The
record does not support a conclusion that the ALJ’s decision or actions were
egregious. Her opinion indicates that she considered the evidence presented in
light of the substantive factors required by SSR 91-5p. An independent review of
the evidence shows Jennings indicated he could read and write English, help with
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chores around the house, drive, and follow simple instructions. There is not such a
dearth of evidence supporting the ALJ’s decision as to make it arbitrary or
shocking to the conscience. Plaintiff’s argument amounts to a claim that the ALJ
construed the evidence incorrectly, and this is not enough. Jennings has failed to
present a colorable substantive due process claim.
To the extent he has attempted to do so, Jennings has also failed to make out
a colorable procedural due process claim. “A procedural due process claim
focuses not on the merits of a deprivation, but on whether the State circumscribed
the deprivation with constitutionally adequate procedures.” Parrish v. Mallinger,
133 F.3d 612, 615 (8th Cir. 1998). The inquiry looks at the procedural safeguards
built into the statutory or administrative procedure effecting the deprivation. Id.
“[D]ue process does not guarantee a favorable result, only procedures reasonably
calculated to afford claimants a meaningful opportunity to be heard…..” Boock, 48
F.3d at 353 n.8. In Efinchuk v. Astrue, a case factually similar to this one, the
Eighth Circuit found there was no colorable due process claim where the ALJ
received and considered claimant’s evidence, listened to and considered all
proffered testimony and argument, and wrote an opinion setting forth a “cogent
rationale” explaining her decision not to reopen the plaintiff’s prior disability
application. See Efinchuk, 480 F.3d at 848-49. Here, Plaintiff has pointed to no
specific part of the process that was deficient. His attorney submitted a brief
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arguing his position to the ALJ. Plaintiff received an administrative hearing and
was represented by counsel before, during, and after the hearing. At the hearing,
he had a chance to speak and be examined by his counsel. The ALJ listened to all
proffered testimony and argument and rendered an opinion explaining her decision
to deny Plaintiff’s request to reopen the previous determination. She considered
the relevant law and regulations and cited to evidence in the record to support her
decision. In light of all of this, and in the absence of any more specific argument
by Plaintiff, Plaintiff has made no colorable procedural due process claim.
Conclusion
For all of these reasons, the Court does not have jurisdiction over Plaintiff’s
claims and this case is therefore dismissed. A separate judgment in accordance
with this Opinion is issued today.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

Dated this 15th day of January, 2016.

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