Medic v. Commissioner of Social Security
Memorandum Opinion adopting 27 Report and Recommendation of Magistrate Judge Burke, and the case DISMISSED for lack of subject matter jurisdiction. Judge Donald C. Nugent on 7/25/17. (G,CA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
COMMISSIONER OF SOCIAL SECURITY, )
CASE NO. 1:16-CV-1415
JUDGE DONALD C. NUGENT
KATHLEEN B. BURKE
This matter is before the Court on the Report and Recommendation issued by Magistrate
Judge Kathleen B. Burke. (Docket #27). On October 26, 2016, Plaintiff, Anto Medic filed a
Complaint seeking judicial review of the decision of the Defendant Commissioner of Social
Security (“Commissioner”) dismissing his request for a hearing based on res judicata and
alleging that Defendant deprived him of his procedural due process rights in conjunction with his
application for Disability Insurance Benefits (“DIB”). (Docket #13). The Magistrate Judge
recommends that this case be dismissed because of lack of subject matter jurisdiction.
Standard of Review for a Magistrate Judge’s Report and Recommendation
The applicable district court standard of review for a magistrate judge’s report and
recommendation depends upon whether objections were made to that report. When objections
are made to a report and recommendation of a magistrate judge, the district court reviews the
case de novo. Fed. R. Civ. P. 72(b) provides this standard of review. It states, in pertinent part,
The district judge to whom the case is assigned shall make a de
novo determination upon the record, or after additional evidence,
of any portion of the magistrate judge’s disposition to which
specific written objection has been made in accordance with this
rule. The district judge may accept, reject, or modify the
recommended decision, receive further evidence, or recommit the
matter to the magistrate judge with instructions.
The text of Rule 72(b) addresses only the review of reports to which objections
have been made; it does not indicate the appropriate standard of review for those reports
to which no objections have been properly made. The Advisory Committee on Civil
Rules commented on a district court’s review of unopposed reports by magistrate judges.
In regard to subsection (b) of Rule 72, the advisory committee stated: “When no timely
objection is filed, the court need only satisfy itself that there is no clear error on the face
of the record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory
committee’s notes (citation omitted).
The U.S. Supreme Court stated in Thomas v. Arn, 474 U.S. 140, 150 (1985): “It
does not appear that Congress intended to require district court review of a magistrate
judge’s factual or legal conclusions, under a de novo or any other standard, when neither
party objects to those findings.”
Medic argues that his procedural rights were violated because the Adminstrative
Law Judge (ALJ) failed to follow the Agency’s own regulations when she dismissed his
request for a hearing based on res judicata. Doc. 23, p. 9. He also argues that Defendant
failed to file a complete transcript in this case, which constitutes prejudice per se under
42 U.S.C. § 405(g). Id.
A. This Court lacks subject matter jurisdiction based on 42 U.S.C. § 405(g)
A party may seek judicial review of a final decision of the Commissioner of
Social Security “made after a hearing.” 42 U.S.C § 405(g); Hilmes v. Sec’y of Health &
Human Servs., 983 F.2d 67, 69 (6th Cir. 1993). An ALJ’s decision to deny the claimant’s
request for a hearing is itself made without a hearing and, therefore, falls outside the
purview of § 405(g). Id. (affirming dismissal for lack of jurisdiction when the claimant’s
request for a hearing was denied by the ALJ on the grounds of res judicata and the
Appeals Counsel declined to review the ALJ’s decision). An exception to the
jurisdictional bar exists when the claimant presents a colorable constitutional claim, e.g.,
that the claimant’s due process rights were violated. Id., at 70; Glazer v. Comm’r of Soc.
Sec., 92 Fed. App’x. 312, 314 (6th Cir. 2004) (citing Cottrell v. Sullivan, 987 F.2d 342,
345 (6th Cir. 1992)).
Here, the ALJ denied Medic’s request for a hearing based on res judicata and the
Appeals Council declined to review the ALJ’s decision. Thus, absent a colorable
constitutional claim, the Court lacks jurisdiction to hear Medic’s appeal. See Hilmes, 983
F.2d at 69-70.
B. Medic does not present a colorable constitutional claim
Medic argues that the ALJ violated Social Security Regulations when she denied
his request for a hearing based on res judicata because she should have recognized that
Medic’s second application was an implied request to reopen his previous determination.
Doc. 23, p. 10. He contends that a prior decision can be reopened within four years of the
notice of the initial determination and, because his second application was filed within
four years of his first notice of initial determination, the ALJ had to consider whether he
met the requirements for reopening pursuant to 20 C.F.R. §§ 404.988 and 404.989. Id.
Even if Medic’s argument could be characterized as describing a procedural due process
violation, his argument fails. Under §§ 404.988 and 404.989, good cause to reopen a
prior determination is made when a claimant provides new and material evidence. §
404.989(a); Doc. 23, p. 10 (Medic’s brief stating that good cause exists when new and
material evidence is furnished). But Medic did not provide any evidence to the ALJ.
Therefore, even if his second application could have been seen as a request to reopen a
prior decision, Medic did not provide any evidence, let alone new and material evidence,
upon which the ALJ could have found good cause to reopen the prior determination.
Medic’s failure to diligently pursue his disability claim does not describe a
procedural due process violation. Importantly, at the time of the ALJ’s decision denying
him a hearing, Medic had been advised by the Agency five times that he should submit
additional evidence relating to his claim (Tr. 40, 37, 21, 15, 14) and had twice indicated
that he had, in fact, no new evidence to submit (Tr. 19, 14). Notably, Medic was
represented by counsel prior to December 31, 2012, continuing to the present time; he
cannot (and does not) allege that he was mentally or physically incapable of submitting
evidence or understanding how to submit evidence. He does argue that he was provided
no “necessary means to submit [his] medical records” because the Agency did not send
him a barcode with which to submit evidence (Doc. 23, p. 11), but this argument fails.
Medic does not explain why he needed a barcode to submit evidence. The request for a
hearing form simply states that any additional evidence should be submitted within 10
days of the request for a hearing. Tr. 14. Moreover, filings show that the Agency accepts
material with the claimant’s social security number or a barcode, if a barcode has been
provided. Tr. 6, 3. Medic has not shown that the Agency failed to provide him with the
proper means with which to submit evidence; he doesn’t even claim to have had any
evidence to submit.
Medic also complains that the ALJ’s decision denying him a hearing was “hasty”
and, thus, prevented him from submitting new evidence. Doc. 23, p. 14. But in his
request for a hearing, neither counsel nor Medic indicated that there was additional
evidence to submit, nor did they submit additional evidence within 10 days, as the form
directed. Tr. 14. Counsel admits that he had “set about requesting and obtaining” Medic’s
records at this time (Doc. 23, p. 11); however, he did not inform the Agency that he had
begun to request and obtain records. The ALJ waited more than one month (far more than
the 10 days Medic had to submit evidence) before denying his request for a hearing. The
Agency still had received no evidence nor indication from Medic that he was requesting
and obtaining additional evidence. It cannot be said that the ALJ’s decision was “hasty”
when Medic’s file was ripe for ruling and the ALJ had not been informed that evidence
was forthcoming, that evidence had been requested, or that more time was needed to
Medic points out that Defendant did not file a complete transcript in this Court
that included the medical evidence that the ALJ relied upon when denying Medic’s
request for a hearing. Doc. 23, pp. 11-13. Medic claims that, without the complete
transcript, the Court cannot review the evidence that was in his file and reviewed by the
ALJ and, therefore, is unable to determine whether the ALJ’s decision deprived him of
procedural due process. Doc. 23, p. 12. He states that the Court cannot evaluate “what
constitutes ‘new and material’ evidence in the determination of whether the application
of res judicata was proper.” Doc. 23, p. 12. This argument fails. It is undisputed that
Medic did not provide new evidence to the ALJ prior to the ALJ denying his request for a
hearing, hence the finding of res judicata. Thus, there was no “new and material”
evidence submitted to the ALJ for the Court to review. Medic’s further assertion that
Defendant’s failure to file a complete transcript violated 42 U.S.C. § 405(g) also fails.
While true that § 405(g) requires Defendant to file “a certified copy of the transcript of
the record including the evidence upon which the findings and decision complained of
are based[,]” this requirement is triggered when the claimant appeals a final decision of
the Commissioner “made after a hearing.” § 405(g).
As discussed above, Medic is not appealing a final decision of the Commissioner
made after a hearing. Defendant is not required to file a complete transcript, including the
evidence that was in Medic’s file when the ALJ denied his request for a hearing.
The Court has carefully reviewed the Report and Recommendation and agrees
with the findings set forth therein. The Report and Recommendation of Magistrate Judge
Burke (Docket #27) is ADOPTED and the case DISMISSED for lack of subject matter
IT IS SO ORDERED.
_/s/Donald C. Nugent____
DONALD C. NUGENT
United States District Judge
DATED: __July 25, 2017__
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