MARQUES v. COMMISSIONER OF SOCIAL SECURITY

Filing 14

OPINION filed. Signed by Judge Brian R. Martinotti on 3/31/2021. (abr, )

Case 3:16-cv-04961-BRM Document 14 Filed 03/31/21 Page 1 of 15 PageID: 86

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
__________________________________________

:
:
:
Plaintiff,
:
:
v.
:
:
CAROLYN W. COLVIN,
:
Acting Commissioner of Social Security
:
:
Defendant.
:
__________________________________________:

FRANCISCO J. MARQUES,

Case No. 3:16-cv-04961 (BRM)

OPINION

MARTINOTTI, DISTRICT JUDGE
Before this Court is Acting Commissioner of Social Security’s (“Commissioner”) motion
to dismiss Francisco J. Marques’s (“Marques”) appeal from the Commissioner’s denial of his
application of Social Security Disability Insurance Benefits (“SSDI”). (Def.’s Mot. to Dismiss
Amended Compl. (ECF No.10.)) The Commissioner moves to dismiss Marques’s claim on two
grounds: (1) this Court lacks subject matter jurisdiction pursuant to 42 U.S.C. § 405(g) because
there was no “final decision . . . made after a hearing”; and (2) Marques has failed to state a claim
for a purported due process violation. (Letter Br. in Support of Def.’s Mot. to Dismiss Amended
Compl. (ECF No.9.)) For the reasons set forth herein, the Commissioner’s Motion to Dismiss is
DENIED and the case is REMANDED for further proceedings consistent with this opinion.
I.

FACTUAL BACKGROUND
Marques filed his first claim for SSDI benefits in September 2010. (First Amended Compl.

(ECF No. 7) at ¶ 7.) On December 31, 2012, his insurance status expired. (Id. at ¶ 8.) On February
4, 2013, Administrative Law Judge (“ALJ”) Daniel N. Shellhamer (“ALJ Shellhamer”) determined

Case 3:16-cv-04961-BRM Document 14 Filed 03/31/21 Page 2 of 15 PageID: 87

Marques was not under a disability for the purpose of his 2010 SSDI application. (Id. at ¶ 9; Order
of Dismissal (ECF No. 5-1) at 7.) ALJ Shellhamer’s decision became final and binding because
Marques did not timely request Appeals Council review. (ECF Nos. 7 at ¶ 10 and 5-1 at 7.)
On or about February 10, 2014, Marques filed a second claim for SSDI, stating again he
had been disabled since April 1, 2010. (ECF Nos. 7 at ¶ 11 and 5-1 at 7.) On April 15, 2014,
Marques’s 2014 application was denied. (ECF Nos. 7 at ¶ 12 and 5-1 at 7.) On July 10, 2013,
Marques’s 2014 application was denied upon reconsideration. (ECF Nos. 7 at ¶ 13 and 5-1 at 7.)
On July 18, 2014, Marques submitted a request for an ALJ hearing. (ECF Nos. 7 at ¶ 14 and 5-1
at 7.) In conjunction with this request, Marques also submitted additional evidence in addition to
requesting his desire to appear at a hearing, and indicated he understood an ALJ would send him
a notice of the time and place of the hearing. (ECF No. 7 at ¶ 15; and First Amended Compl.,
Exhibit A (ECF No. 7-1 at 1.))
On September 18, 2014, ALJ Mark G. Barrett (“ALJ Barrett”) dismissed Marques’s July
2014 request for hearing on res judicata grounds. (ECF Nos. 7 at ¶ 16 and 5-1 at 7–8.) ALJ Barrett
noted that Marques previously filed an SSDI application in September 2010, which was denied in
a hearing on February 4, 2013—after Marques’s insured status expired on December 31, 2012.
(ECF No. 5-1 at 7–8.) ALJ Barrett found that the claim was premised on the same issues and the
same facts as were adjudicated in the February 2013 hearing decision; therefore, the doctrine of
res judicata applied. (Id.)
ALJ Barrett stated he reviewed evidence related to Marques’s 2010 application, but did not
proffer to Marques the entire claim file related to his 2010 application. (ECF Nos. 7 at ¶ 20 and 51 at 7–8.) ALJ Barrett also stated that he reviewed evidence relating to Marques’s 2014 application,
but did not state which specific evidence he reviewed. (ECF Nos. 7 at ¶ 21 and 5-1 at 7–8.)

2

Case 3:16-cv-04961-BRM Document 14 Filed 03/31/21 Page 3 of 15 PageID: 88

Marques requested the Appeals Council review ALJ Barrett’s dismissal. (ECF Nos. 7 at ¶
22 and 5-1 at 9.) Marques submitted evidence to the Appeals Council in conjunction with his
request for Appeals Council review. (First Amended Compl., Ex. B (ECF No. 7-2) at 1–6.)
Marques submitted a medical source statement dated October 15, 2014 from treating pain
management specialist Scott E. Metzger, M.D. (“Dr. Metzger”) (Id.) Dr. Metzger noted that since
September 2010, Marques could perform only a limited range of part-time sedentary work. (First
Amended Compl., Ex. B (ECF No. 7-2) at 1–6.) In conjunction with his request for Appeals
Council review, Marques argued: (1) ALJ Barrett erroneously failed to proffer to him the entire
claim file related to his 2010 application; (2) ALJ Barrett improperly dismissed his July 2014
request for hearing without either providing him with an oral hearing or notifying him that no oral
hearing would be held, but offering him an opportunity to submit arguments and evidence prior to
the disposition of the request for hearing; and (3) ALJ Barrett failed to evaluate new and material
evidence—i.e., Dr. Metzger’s report. (First Amended Compl., Ex. C (ECF No. 7-3) at 1–4.) On
June 15, 2016, after reviewing new evidence consisting of Dr. Metzger’s report, the Appeals
Council denied Marques’s request to review ALJ Barrett’s dismissal. (ECF No. 5-1 at 9–11.)
On August 12, 2016, Marques filed this District Court action seeking judicial review of the
Commissioner’s final decision under 42 U.S.C. § 405(g) (Compl. (ECF No. 1) at 1.) In his
Complaint, Marques alleged “substantial evidence” does not support the Commissioner’s final
decision. (Id. at 2.) On October 14, 2016, the Commissioner filed a Motion to Dismiss (Def’s Mot.
to Dismiss (ECF No. 4)) with a proposed Order (Order (ECF No. 4-1)), Memorandum in support
of the Commissioner’s Motion to Dismiss Marques’s complaint (Mem. in Support of Def.’s Mot.
to Dismiss (ECF No. 5)), and supporting evidence (ECF No. 5-1). The Commissioner argued the

3

Case 3:16-cv-04961-BRM Document 14 Filed 03/31/21 Page 4 of 15 PageID: 89

Court lacked jurisdiction over Marques’s complaint under 42 U.S.C. § 405(g). (ECF No. 5 at 2–
4.)
On October 31, 2016, Marques filed his First Amended Complaint (ECF No. 7) with
supporting Exhibits A (ECF No. 7-1), B (ECF No. 7-2), and C (ECF No. 7-3). In his First Amended
Complaint, Marques argued the Commissioner violated his right to procedural due process under
the Fifth Amendment of the United States Constitution and this Court has jurisdiction to review
his claim under 28 U.S.C. § 1331. (ECF No. 7 at ¶ 28–29.) Marques alleged the Commissioner
denied him his due process rights by accepting ALJ Barrett’s determination, as ALJ Barrett
violated those rights by: (1) failing to proffer to Marques the entire claim file related to his 2010
application; (2) failing to notify Marques he would not hold an oral hearing; (3) failing to provide
Marques with the opportunity to submit additional evidence and arguments after being notified
that an oral hearing would not be held; and (4) failing to state which specific evidence he reviewed
that was not in the claim file for Marques’s 2010 application. (Id. at 30.)
On November 7, 2016, Marques filed a Response to Defendant’s Motion to Dismiss
Plaintiff’s Complaint. (Pl.’s Resp. to Def.’s Mot. to Dismiss (ECF No. 8.)) Marques explained
how the First Amended Complaint mooted the Defendant’s Motion to Dismiss. (Id. at 4–6.)
On November 14, 2016, the Commissioner filed a letter brief asking this Court to consider
as a reply to Marques’s response to the Motion to Dismiss. (Letter Br. (ECF No. 9.)) That same
day, the Commissioner filed an Amended Motion to Dismiss (Def.’s Amended Mot. to Dismiss
(ECF No. 10.)) In the Commissioner’s letter brief, she reiterates her jurisdictional argument
supplied in her first Motion to Dismiss (ECF No. 9 at 2–3.) In response to Marques’s due process
claims, the Commissioner argues: (1) Marques’s demand for the entire 2010 claim file is without
legal support and (2) Dr. Metzger’s report is not new and material evidence and Marques has failed

4

Case 3:16-cv-04961-BRM Document 14 Filed 03/31/21 Page 5 of 15 PageID: 90

to show good cause for his failure to incorporate the report into the record in the original
proceeding before ALJ Barrett. (Id. at 3–4.)
On December 20, 2016, Marques responded to the Commissioner’s Amended Motion to
Dismiss the Amended Complaint. (Pl.’s Resp. to Def.’s Mot. to Dismiss (ECF No. 13.)) In the
response, Marques argues the Commissioner’s Amended Motion neglected to address his
allegation that ALJ Barrett violated his Constitutional right to due process when ALJ Barrett failed
to notify him that no hearing would be held, and when the ALJ failed to provide him with the
opportunity to submit additional evidence and arguments after being notified that an oral hearing
would not be held. (ECF No. 13 at 3.) Additionally, Marques reiterates his claim that ALJ Barrett’s
failure to provide the full 2010 claim file, and to state which evidence he considered in dismissing
Marques’s 2015 claim, constitutes serious procedural errors depriving Marques of his right to due
process. For these reasons, Marques asks this Court: (1) to deny the Commissioner’s Motion to
Dismiss Marques’s Amended Complaint; (2) to conclude the Commissioner violated Marques’s
right to procedural due process; and (3) to remand this case to the Commissioner with an order
that the Commissioner’s fact-finder proffer to Marques the entire 2010 claim file and to identify
which evidence he or she considers that was not in the 2010 claim file. (ECF No. 13 at 9.)
II.

JURISDICTION
This case is unique from standard social security appeals in that this Court potentially has

jurisdiction over it in two ways: (1) under 42 U.S.C. § 405(g), which grants district courts the
“power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying,
or reversing the [final] decision of the Commissioner of Social Security, with or without remanding
the cause for a rehearing”; and (2) under 28 U.S.C. § 1331, based on Plaintiff raising a due process
claim. See Alvarez v. Berryhill, Case No. 17-7422 (Op. May 29, 2018) (collecting cases).

5

Case 3:16-cv-04961-BRM Document 14 Filed 03/31/21 Page 6 of 15 PageID: 91

III.

STANDARD OF REVIEW
A. Social Security Decisions
On a review of a final decision of the Commissioner of the Social Security Administration,

a district court “shall have power to enter, upon the pleadings and transcript of the record, a
judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security,
with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g); see Matthews v. Apfel,
239 F.3d 589, 592 (3d Cir. 2001). The Commissioner’s decisions regarding questions of fact are
deemed conclusive on a reviewing court if supported by “substantial evidence in the record.” 42
U.S.C. § 405(g); see Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). This Court must affirm an
ALJ’s decision if it is supported by substantial evidence. See 42 U.S.C. §§ 405(g), 1383(c)(3).
Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). To
determine whether an ALJ’s decision is supported by substantial evidence, this Court must review
the evidence in its totality. Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984). However, this Court
may not “weigh the evidence or substitute its conclusions for those of the fact-finder.” Williams
v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992) (citation omitted). Accordingly, this Court may
not set an ALJ’s decision aside, “even if [it] would have decided the factual inquiry differently.”
Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citations omitted).This Court’s jurisdiction
over claims arising under the Social Security Act is provided by 42 U.S.C. § 405(g), which
authorizes judicial review of “any final decision of the Secretary made after a hearing to which
[the claimant] was a party.” 42 U.S.C. § 405(g); see also Califano v. Sanders, 430 U.S. 99, 108

6

Case 3:16-cv-04961-BRM Document 14 Filed 03/31/21 Page 7 of 15 PageID: 92

(1997); Tobak v. Apfel, 195 F.3d 183, 185 (3d Cir. 1999); Penner v. Schweiker, 701 F.2d 256 (3d
Cir. 1983).
Res judicata principles apply to administrative as well as judicial adjudications. See United
States v. Utah Constr. & Mining Co., 384 U.S. 394, 421–22 (1966); see also Tobak, 195 F.3d at
185. The regulations provide that an ALJ may dismiss a request for a hearing, and therefore
decline to issue a “final decision,” based on the doctrine of administrative res judicata. 20 C.F.R.
§ 404.957(c)(1) (“The doctrine of res judicata applies in that we have made a previous
determination or decision under this subpart about your 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.”). Thus, res judicata may only be properly applied where the
“same” claimant has filed a previous application based on the “same” issues and where such prior
determination has become final by virtue of administrative or judicial action. 20 C.F.R.
§ 404.957(c)(1); Purter v. Heckler, 771 F.2d 682, 691 (3d Cir.1985); Tobak, 195 F.3d at 185.
B. Motion to Dismiss for Lack of Subject Matter Jurisdiction
“A challenge to subject matter jurisdiction under Rule 12(b)(1) may be either a facial or a
factual attack.” Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). A facial attack “challenges
the subject matter jurisdiction without disputing the facts alleged in the complaint, and it requires
the court to ‘consider the allegations of the complaint as true.’” Id. (citing Petruska v. Gannon
Univ., 462 F.3d 294, 302 n.3 (3d Cir. 2006)). A factual attack, on the other hand, “attacks the
factual allegations underlying the complaint’s assertion of jurisdiction, either through the filing of
an answer or ‘otherwise present[ing] competing facts.’” Id. (quoting Constitution Party of Pa. v.
Aichele, 757 F.3d 347, 358 (3d Cir. 2014)). A “factual challenge allows a court [to] weigh and
consider evidence outside the pleadings.” Id. (citation omitted). Thus, when a factual challenge is

7

Case 3:16-cv-04961-BRM Document 14 Filed 03/31/21 Page 8 of 15 PageID: 93

made, “no presumptive truthfulness attaches to [the] plaintiff's allegations.” Id. (citing Mortensen
v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)). Rather, “the plaintiff will have
the burden of proof that jurisdiction does in fact exist,” and the court “is free to weigh the evidence
and satisfy itself as to the existence of its power to hear the case.” Id.
The Third Circuit has “repeatedly cautioned against allowing a Rule 12(b)(1) motion to
dismiss for lack of subject matter jurisdiction to be turned into an attack on the merits.” Davis, 824
F.3d at 348–49 (collecting cases). “[D]ismissal for lack of jurisdiction is not appropriate merely
because the legal theory alleged is probably false, but only because the right claimed is ‘so
insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely
devoid of merit as not to involve a federal controversy.’” Id. at 350 (quoting Kulick v. Pocono
Downs Racing Ass’n, Inc., 816 F.2d 895, 899 (3d Cir. 1987)). “In this vein, when a case raises a
disputed factual issue that goes both to the merits and jurisdiction, district courts must ‘demand
less in the way of jurisdictional proof than would be appropriate at a trial stage.’” Id. (citing
Mortensen, 549 F.2d at 892 (holding that dismissal under Rule 12(b)(1) would be “unusual” when
the facts necessary to succeed on the merits are at least in part the same as must be alleged or
proven to withstand jurisdictional attacks)). These cases make clear that “dismissal via a Rule
12(b)(1) factual challenge to standing should be granted sparingly.” Id.
The Commissioner presents a facial attack on subject matter jurisdiction, as she disputes
this Court’s ability to hear the case under 42 U.S.C. § 405(g). Therefore, the Court must view the
facts in the light most favorable to Marques, the non-movant.
C. Constitutional Claims
It is well-settled that the administrative exhaustion requirements of § 405(g) may be waived
where the claimant alleges a colorable claim implicating a constitutional issue. Sanders, 430 U.S.

8

Case 3:16-cv-04961-BRM Document 14 Filed 03/31/21 Page 9 of 15 PageID: 94

at 108–09; Bacon v. Sullivan, 969 F.2d 1517, 1521–22 (3d Cir. 1992); Timmons v. Comm’r of Soc.
Sec., 719 F. App’x 162, 164 (3d Cir. 2017); Penner, 701 F.2d at 260. This Court has federal
question jurisdiction under 28 U.S.C. § 1331 for violations of the Constitution. See Penner, 701
F.2d at 260. In determining what process is due a Social Security claimant under these
circumstances, we must examine:
(1) the private interests that will be affected by the official action;
(2) the risk of an erroneous deprivation of such interest through the
procedures used and the probable value, if any, of additional or
substitute procedural safeguards; and (3) the Government’s interest,
including the function involved and the fiscal and administrative
burdens that the additional or substitute procedural requirement
would entail.
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893 (1976).
D. Motion to Dismiss for Failure to State a Claim
In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a
district court is “required to accept as true all factual allegations in the complaint and draw all
inferences in the facts alleged in the light most favorable to the [plaintiff].” Phillips v. Cty. of
Allegheny, 515 F.3d 224, (3d Cir. 2008). “[A] complaint attacked by a . . . motion to dismiss does
not need detailed factual allegations.” Bell Atl. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955,
167 L. Ed. 2d 929 (2007). However, the plaintiff’s “obligation to provide the ‘grounds’ of his
‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286,
106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986)). A court is “not bound to accept as true a legal conclusion
couched as a factual allegation.” Papasan, 478 U.S. at 286. Instead, assuming the factual
allegations in the complaint are true, those “[f]actual allegations must be enough to raise a right to
relief above the speculative level.” Twombly, 550 U.S. at 555.

9

Case 3:16-cv-04961-BRM Document 14 Filed 03/31/21 Page 10 of 15 PageID: 95

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) (quoting Twombly, 550 U.S. at 570). “A
claim has facial plausibility when the pleaded factual content allows the court to draw the
reasonable inference that the defendant is liable for misconduct alleged.” Id. This “plausibility
standard” requires the complaint allege “more than a sheer possibility that a defendant has acted
unlawfully,” but it “is not akin to a ‘probability requirement.’” Id. (quoting Twombly, 550 U.S. at
556). “Detailed factual allegations” are not required, but “more than an unadorned, the defendantharmed-me accusation” must be pled; it must include “factual enhancements” and not just
conclusory statements or a recitation of the elements of a cause of action. Id. (quoting Twombly,
550 U.S. at 555, 557).
“Determining whether a complaint states a plausible claim for relief [is] . . . a contextspecific task that requires the reviewing court to draw on its judicial experience and common
sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
While as a general rule, a court may not consider anything beyond the four corners of the
complaint on a motion to dismiss pursuant to 12(b)(6), the Third Circuit has held “a court may
consider certain narrowly defined types of material without converting the motion to dismiss [to
one for summary judgment pursuant under Rule 56].” In re Rockefeller Ctr. Props. Sec. Litig., 184
F.3d 280, 287 (3d Cir. 1999). Specifically, courts may consider any “document integral to or
explicitly relied upon in the complaint.” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,
1426 (3d Cir. 1997).

10

Case 3:16-cv-04961-BRM Document 14 Filed 03/31/21 Page 11 of 15 PageID: 96

IV.

DECISION
A. The Commissioner’s Claim Regarding this Court’s Lack of Subject Matter
Jurisdiction
District courts generally lack jurisdiction under § 405(g) to review the Commissioner’s

discretionary decision to decline to reopen a prior application or to deny a subsequent application
on res judicata grounds. See Sanders, 430 U.S. at 107–09; Stauffer v. Califano, 693 F.2d 306, 307
(3d Cir. 1982); Tobak, 195 F.3d at 185. Moreover, as the Supreme Court explained in Sanders,
because an administrative decision declining to reopen a prior claim or denying a subsequent claim
on res judicata grounds does not require a hearing, it is not a “final decision . . . made after a
hearing” as required for jurisdiction under § 405(g) of the Act. See Sanders, 430 U.S. at 107–08;
see also Tobak, 195 F.3d at 187.
Because ALJ Barrett denied Marques’s subsequent claim based on administrative res
judicata, ALJ Barrett never issued a judicially reviewable “final decision.” Marques requested
Appeals Council review of ALJ Barrett’s order of dismissal. The Appeals Council denied
Marques’s request, thereby making ALJ Barrett’s order of dismissal the Commissioner’s
determination on Marques’s subsequent claim. Thus, this Court does not have jurisdiction under
§ 405(g). However, this Court does have subject matter jurisdiction over Marques’s constitutional
claims under 28 U.S.C. § 1331. Further, as previously noted, caselaw instructs the administrative
exhaustion requirements of § 405(g) may be waived where the claimant alleges a colorable claim
implicating a constitutional issue. See Sanders, 430 U.S. at 108–09; Bacon v. Sullivan, 969 F.2d
1517, 1521–22 (3d Cir. 1992); Timmons v. Comm’r of Soc. Sec., 719 F. App’x 162, 164 (3d Cir.
2017); Penner, 701 F.2d at 260.

11

Case 3:16-cv-04961-BRM Document 14 Filed 03/31/21 Page 12 of 15 PageID: 97

B. Motion to Dismiss for Failure to State a Claim
Marques’s

interests

in

receipt

of

the

SSDI

benefits

due

under

the

Social Security Act is exceptionally strong. An erroneous determination of a claimant’s disability
status could cause significant financial hardship for a disabled individual who may be entirely
dependent upon these monthly payments for support. Indeed, recipients’ very subsistence may be
at stake. Social Security beneficiaries therefore deserve full due process protection while pursuing
a claim for benefits through the administrative process.
The risk of an erroneous deprivation resulting from any one of the Commissioner’s alleged
due process violations is also significant. First, ALJ Barrett’s alleged failure to provide Marques
with the entire claim file related to his 2010 application is alone enough to overcome Marques’s
motion to dismiss. Marques argues he had a Constitutional right to pre-decision proffer of all the
evidence ALJ Barrett reviewed, citing as legal support for this position Mullane v. Cent. Hanover
Bank & Tr. Co., 339 U.S. 306 (1950). (ECF No. 8 at 7.) We do not find Marques’s expansive
reading of Mullane persuasive. Indeed, we acknowledge the Commissioner’s contention that
Marques’s demand for the entire claim file lacks precedential support. Yet, common sense leads
inevitably to the conclusion that Marques cannot be reasonably expected to craft a viable second
application without first being afforded an opportunity to identify and remedy the deficiencies of
the first.
Second, and closely related to the first issue, is ALJ Barrett’s alleged failure to state which
specific evidence he reviewed in Marques’s 2014 application that ALJ Shellhamer did not review
in Marques’s 2010 claim. As the Supreme Court explained in Goldberg v. Kelley, claimants have
a Constitutional right to know which evidence the decisionmaker relied upon in reaching their
decision. 397 U.S. 254, 271 (1970). Without access to the entire claim file, Marques had no way

12

Case 3:16-cv-04961-BRM Document 14 Filed 03/31/21 Page 13 of 15 PageID: 98

of demonstrating there is new and material evidence warranting waiver of res judicata. In any case,
the Commissioner failed to respond to, let alone challenge, this claim in Defendant’s Amended
Motion and therefore, they have waived that count. “The failure to respond to a substantive
argument to dismiss a count, when a party otherwise files opposition, results in a waiver of that
count.” Griglak v. CTX Mortg. Co., LLC, No. 09-5247, 2010 WL 1424023, at *3 (D.N.J. Apr. 8,
2010); see Duran v. Equifirst Corp., No. 09-3856, 2010 WL 918444, at *3 (D.N.J. Mar. 12, 2009)
(dismissing eleven counts of a complaint because plaintiff waived those counts by failing to
respond to the defendant’s motion to dismiss those counts).
Third, ALJ Barrett’s failure to notify Marques he would not hold an oral hearing violated
Marques’s Constitutional right to adequate notice of the procedures used in the agency
proceedings. See Goldberg, 397 U.S. at 267–68. Again, the Commissioner neglects to address this
claim in Defendant’s Amended Motion and waives this count.
Finally, we turn to ALJ Barrett’s refusal to provide Marques with the opportunity to submit
additional evidence and arguments after being notified that an oral hearing would not be held.
Under 42 U.S.C. § 405(g), the Court may “order additional evidence to be taken before
Commissioner of Social Security, but only upon a showing that there is new evidence which is
material and that there is good cause for the failure to incorporate such evidence into the record in
a prior proceeding.” 42 U.S.C. § 405(g). The Commissioner would have us ignore Dr. Metzger’s
retrospective report because Marques obtained it several months after his request for a hearing and
did not offer an explanation for the delay. This we will not do. Marques will have an opportunity
to show good cause for why he failed to include Dr. Metzger’s report in the 2014 claim file
reviewed by ALJ Barrett.

13

Case 3:16-cv-04961-BRM Document 14 Filed 03/31/21 Page 14 of 15 PageID: 99

The government’s interest in the efficient and economic administration of the Social
Security system would not be significantly hindered by the institution of a requirement that SSDI
claimants filing subsequent claims be afforded the claim file from their original claims, or that
they receive an account of the evidence considered therein. At most, this new procedure would
require marginally increased administrative costs and labor. While mildly burdensome from a
clerical perspective, we do not deign to compare such an inconvenience to the potentially
devastating effects of a totally disabled individual losing his benefit payments in error.
Viewing these four claims in the light most favorable to Marques, it is clear that ALJ
Barrett’s conduct put Marques at great risk of erroneous deprivation of benefits, that such a
deprivation would be potentially detrimental to Marques, and that the administrative burden of the
proposed procedures do not outweigh these private interests. In light of this determination, we
believe the relatively simple and inexpensive procedures proposed herein are reasonable and
justified. Therefore, we conclude the procedural errors by ALJ Barrett deprived Marques of his
Constitutional right to due process.
V.

CONCLUSION
For the above reasons, Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint is

DENIED and this case is REMANDED for the Commissioner to proffer to Marques the entire
file related to his 2010 SSDI application prior to acting on Marques’s request for hearing related
to his 2014 SSDI application, and to provide to him a detailed account of the evidence considered
in his 2010 SSDI application. Should the Commissioner grant Marques’s request for an oral
hearing related to his 2014 application, the Commissioner shall provide proper notice to him
thereof. Should the Commissioner deny Marques’s request, the Commissioner shall timely notify
him of the decision. In either case, the Commissioner shall afford Marques reasonable time to

14

Case 3:16-cv-04961-BRM Document 14 Filed 03/31/21 Page 15 of 15 PageID: 100

submit additional material evidence and arguments regarding his showing of good cause for not
having included the additional evidence in his original application.

Date: March 31, 2021

/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE

15