Johnson v. Commissioner of Social Security

Filing 14

OPINION AND ORDER: The Court GRANTS Defendant's 7 MOTION to Dismiss for Lack of Jurisdiction and DENIES Plaintiff's 9 MOTION for Order Remanding to Commissioner for Good-Cause Hearing. Signed by Judge John M. Conroy on 10/25/2017. (hbc)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
George Johnson,
Plaintiff,
v.

Civil Action No. 2:17–cv–41–jmc

Commissioner of Social Security,
Defendant.
OPINION AND ORDER
(Docs. 7, 9)
Plaintiff George Johnson has filed a Complaint against the Commissioner of
Social Security pursuant to 42 U.S.C. § 405(g), seeking reversal of the
Commissioner’s December 2016 decision regarding Johnson’s application for
disability insurance benefits (DIB) and either an award of benefits or remand to the
Commissioner for further proceedings. (Doc. 1.) Pending before the Court is the
Commissioner’s Motion to Dismiss Johnson’s Complaint for lack of subject-matter
jurisdiction. (Doc. 7.) Therein, the Commissioner argues that the Court has no
jurisdiction to review the pending claim––which is essentially a duplicate of
Johnson’s prior claim that was denied in May 2012––because there is no judicially
reviewable “final decision,” as required by § 405(g), and Johnson has not alleged a
colorable constitutional violation. (Id.) Moreover, the Commissioner asserts that
Johnson failed to timely appeal the Commissioner’s May 2012 decision, thereby
failing to exhaust his administrative remedies, and the Commissioner’s decision to

deny Johnson’s request for additional time to appeal is not subject to judicial
review. (Id.) Finally, the Commissioner contends that the pending claim was
properly precluded from consideration on the grounds of res judicata, and this Court
has no jurisdiction to review that determination. (Id. (citing Doc. 7-6).)
In response to the Commissioner’s Motion, Johnson states that he seeks a
“good-cause hearing” to decipher whether Johnson has shown good cause for failing
to timely appeal the May 2012 decision, and issuance of a decision that the Court
can then review “for substantial evidence.” (Doc. 9 at 6.) Johnson argues that the
Commissioner’s May 2012 decision is reviewable, despite Johnson’s failure to timely
file an appeal, because: (1) the decision was misleading; and (2) Johnson suffered a
mental condition that impaired his ability to understand that decision. (Id. at 2–3.)
Given those facts, Johnson claims his late request for an appeal of his prior DIB
claim is excused.
For the reasons stated below, the Court GRANTS the Commissioner’s Motion
(Doc. 7), DENIES Johnson’s Motion to Remand (Doc. 9), and DISMISSES Johnson’s
Complaint.
Factual and Procedural Background
On January 6, 2011, Johnson filed applications for DIB and supplemental
security income (SSI), alleging disability beginning on November 1, 1999. (Doc. 7-5
at 4.) The DIB application was denied, and the SSI application was approved.
After holding a hearing on Johnson’s DIB claim, Administrative Law Judge (ALJ)
Paul Martin issued a decision on May 25, 2012, finding that Johnson “was not

2

disabled prior to December 1, 2010, but became disabled on that date and has
continued to be disabled through the date of this decision.” (Id. at 14 (citations
omitted).) The decision clarifies that, although Johnson became disabled on
December 1, 2010, he “was not disabled . . . through . . . the last date insured.” (Id.)
Attached to the ALJ’s decision is a document prepared by the Social Security
Administration titled “Notice of Decision – Partially Favorable.” (Id. at 1.) That
Notice was apparently mailed to Johnson on or around May 25, 2012. (Id.) Despite
the Notice’s instruction that Johnson “must file [his] written appeal [of the ALJ’s
May 2012 decision, if any,] within 60 days of the date [he received] th[e] notice”
(id. (emphasis in original)), Johnson did not file an appeal until almost two years
later, on March 20, 2014 (see Doc. 7-6 at 3). On June 19, 2015, the Appeals Council
denied Johnson’s appeal on the ground that it was not timely filed, and found that
“there is no good cause to extend the time for filing.” (Id. at 4.)
Approximately five months later, in November 2015, Johnson filed a new DIB
claim,1 this time alleging disability beginning on December 31, 2008. (Doc. 7-8 at
4.) On December 20, 2016, ALJ Thomas Merrill denied the claim, finding that it
was barred by the doctrine of res judicata and stating: “[Johnson’s] rights on the
same facts and on the same issues are involved [here as were involved in his prior
claim that was denied on May 25, 2012,] and [thus] the doctrine of res judicata
applies.” (Id. at 7; see also id. at 4, 6 (finding that no new and material evidence

In the Complaint, Johnson states that he did not intend for the November 2015 filing to be
considered a new claim, explaining: “[O]n November 9, 2015[,] Plaintiff asked leave to appeal the
decision dated May 25, 2012 under the good-cause exceptions in Social Security Rule 91-5p[,] . . .
[but] Social Security processed the request to appeal . . . as a new application.” (Doc. 1 at 2–3.)
1

3

had been submitted in conjunction with the November 2015 claim and that there
had been no change in statute, regulation, or ruling concerning the facts and issues
ruled on in connection with the previously adjudicated period). Moreover, the ALJ
found that the earlier May 2012 decision “remains final and binding.” (Id. at 6; see
also id. at 5 (“the prior ALJ decision remains the final decision”).) The ALJ
explained that Johnson had not requested review of the May 2012 decision within
the required period and had not established “good cause” to extend that period, as
he had not “establish[ed] that he lacked the mental capacity to understand the
procedures for requesting review” (id. at 5) or that the decision was “so confusing as
to mislead” Johnson (id. at 6). Johnson appealed the ALJ’s decision, and the
Appeals Council denied the appeal. (Doc. 7-9.) Finally, on March 16, 2017, Johnson
filed the Complaint, initiating this action. (Doc. 1.)
Standard of Review
Federal courts are courts of limited jurisdiction and may not decide cases
over which they do not have subject-matter jurisdiction. Lyndonville Sav. Bank &
Trust Co. v. Lussier, 211 F.3d 697, 700–01 (2d Cir. 2000) (“If subject matter
jurisdiction is lacking, the action must be dismissed.”). In considering a motion to
dismiss for lack of subject-matter jurisdiction, the court must accept as true all
factual allegations in the complaint and draw all reasonable inferences in favor of
the plaintiff. Nat. Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006); see
Louis v. Comm’r of Soc. Sec., No. 09 Civ. 4725(JGK), 2010 WL 743939, at *1
(S.D.N.Y. Mar. 2, 2010). However, the burden is on the plaintiff to prove by a

4

preponderance of the evidence that jurisdiction exists. Makarova v. United States,
201 F.3d 110, 113 (2d Cir. 2000). Unlike on a Rule 12(b)(6) motion, on a motion to
dismiss for lack of subject-matter jurisdiction, the court is authorized to consider
matters outside of the pleadings, including affidavits, documents, and testimony.
See Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). Therefore, in
considering the Commissioner’s Motion to Dismiss, the Court may consider the
documents attached to it, including the May 2012 and December 2016 ALJ
decisions, their corresponding notices, and the June 2015 Appeals Council order.
(See Docs. 7-5, 7-6, 7-8.)
Analysis
I.

Subject-Matter Jurisdiction
In social security cases, 42 U.S.C. § 405(g) “provides the exclusive means by

which the federal courts may review a decision of the Commissioner.” Feine v.
Astrue, No. 2:08-CV-163, 2009 WL 688990, at *2 (D. Vt. Mar. 9, 2009); see Jackson
v. Astrue, 506 F.3d 1349, 1353 (11th Cir. 2007); 42 U.S.C. § 405(h) (“No 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.”). Section
405(g) states, in pertinent part: “Any individual, after any final decision of the
Commissioner of Social Security made after a hearing to which he was a party, . . .
may obtain a review of such decision by a civil action.” 42 U.S.C. § 405(g). The
Supreme Court has instructed that § 405(g) “clearly limits judicial review to a
particular type of agency action[:] a final decision of the [Commissioner] made after

5

a hearing.” Califano v. Sanders, 430 U.S. 99, 108 (1977) (emphasis added) (internal
quotation marks omitted). Therefore, “[a] final decision is ‘central to the requisite
grant of subject matter jurisdiction.’” Fitzgerald v. Apfel, 148 F.3d 232, 234 (3d Cir.
1998) (quoting Mathews v. Eldridge, 424 U.S. 319, 328 (1976)); see Iwachiw v.
Massanari, 125 F. App’x 330, 331 (2d Cir. 2005) (“Pursuant to 42 U.S.C. § 405(g), an
individual must obtain a final decision of the Commissioner before a federal court
can review Social Security benefit determinations.”) (internal quotation marks
omitted).
“The requirement of a ‘final decision’ has two components: (1) a non-waivable
requirement that a claim for benefits has been presented to the [Commissioner],
and (2) a waivable requirement that the administrative remedies prescribed by the
[Commissioner] have been exhausted.” Iwachiw, 125 F. App’x at 331. The term
“final decision” is undefined in the Social Security Act; “its meaning is left to the
[Commissioner] to flesh out by regulation.” Weinberger v. Salfi, 422 U.S. 749, 766
(1975). The Commissioner has construed the term “through a series of regulations
setting forth a detailed administrative process.” Iwachiw, 125 F. App’x at 331
(citing Weinberger, 422 U.S. at 766). Under those regulations, an individual
claiming entitlement to Social Security benefits first receives an initial
determination. 20 C.F.R. § 404.902. If dissatisfied with that determination, the
claimant may request reconsideration and then a hearing before an ALJ. 20 C.F.R.
§§ 404.907, 404.929. If the ALJ renders an unfavorable decision, the claimant may
request review from the Appeals Council. 20 C.F.R. § 404.967. The ALJ’s decision

6

does not become “final” until “after the Appeals Council has denied review or
decided the case after review.” Iwachiw, 125 F. App’x at 331 (quoting Matthews v.
Chater, 891 F. Supp. 186, 188 (S.D.N.Y. 1995), aff’d, 101 F.3d 681 (2d Cir. 1996)
(table)); see 20 C.F.R. § 404.981. If the claimant does not pursue administrative
appeal rights, the ALJ’s decision becomes binding. 20 C.F.R. §§ 404.905, 404.955.
Here, neither the May 2012 decision nor the December 2016 decision ever
became “final.” The May 2012 decision did not become final because Johnson failed
to request Appeals Council review within the 60-day period required under the
regulations. See 42 U.S.C. § 405(g); 20 C.F.R. § 404.981. Johnson himself concedes
this fact, stating in the Complaint that he “did not appeal the [May 2012] decision.”
(Doc. 1 at 2.) And the December 2016 decision did not become final because there
was no administrative hearing, as again conceded by Johnson in the Complaint (see
id. at 3). See 20 C.F.R. § 404.929; Matthews v. Chater, 101 F.3d 681, 1996 WL
146534, at *1 (2d Cir. 1996) (table); Faucette v. Colvin, No. 15 Civ. 8495 (AJP), 2016
WL 866350, at *3 (S.D.N.Y. Mar. 3, 2016) (“The Second Circuit interprets Section
405(g) to grant jurisdiction to review a[] [Social Security Administration] decision
only if that decision follows an actual hearing on the merits.” (citing Dietsch v.
Schweiker, 700 F.2d 865, 867 (2d Cir. 1983))). There was no administrative hearing
because, as stated in the December 2016 decision, the ALJ declined to review the
November 2015 claim on the grounds of res judicata, accurately finding that it
involved “the same facts” and “the same issues” as the original January 2011 claim.
(Doc. 7-8 at 7.) As discussed in more detail below, courts generally lack jurisdiction

7

to review denials of benefits based on res judicata, because such denials are entered
without a hearing. Yeazel v. Apfel, 148 F.3d 910, 911 (8th Cir. 1998). Moreover,
when, as here, an untimely administrative appeal is dismissed on procedural
grounds, there is no final decision on the merits of a claim by the Commissioner and
therefore the claim is not reviewable. Hilmes v. Sec’y of Health & Human Servs.,
983 F.2d 67, 70 (6th Cir. 1993); see Dryden v. Comm’r of Soc. Sec., Case No. 1:14CV-496, 2015 WL 12698064, at *3 (S.D. Ohio Jan. 26, 2015) (“dismissal of an
untimely appeal is not a ‘final decision’ subject to review under § 405(g)”), Report
and Recommendation adopted, Case No. 1:14CV496, 2015 WL 12698065 (S.D. Ohio
Feb. 18, 2015)
For these reasons, the Commissioner’s argument that the Court is without
jurisdiction to review Johnson’s claim has significant merit.
II.

“Colorable Constitutional Claim” Exception to Jurisdictional Bar
The inquiry does not end there, however, because there are certain

circumstances in which a federal court may review a social security disability claim
even though it has not been adjudicated on the merits in a hearing that has
produced a “final decision.” Specifically, an exception to the “no jurisdiction” rule
exists where there is a “colorable constitutional claim.” Califano, 430 U.S. 99, 109
(“Constitutional questions obviously are unsuited to resolution in administrative
hearing procedures and, therefore, access to the courts is essential to the decision of
such questions.”). Johnson argues that this action involves a colorable
constitutional claim because the Complaint alleges a due process violation based on

8

misleading statements contained in the Commissioner’s May 2012 Notice of
Decision. (Doc. 9 at 1–2 (citing Stieberger v. Apfel, 134 F.3d 37 (2d Cir. 1997); Byam
v. Barnhart, 336 F.3d 172 (2d Cir. 2003)).) A colorable constitutional claim may in
fact include allegations like these.
The United States District Court for the Northern District of New York
explained: “[T]he [Commissioner] has an affirmative duty to avoid providing [social
security] applicants with misleading information, especially when the applicant was
without counsel . . . and relied on the plain language of . . . [the] notice [denying her
disability claim].” Christopher v. Sec’y of Health & Human Servs., 702 F. Supp. 41,
43 (N.D.N.Y. 1989) (internal quotation marks omitted) (due process claim
presented, where reconsideration notice informed claimant she had 60 days to
request hearing and if she did not, she still had right to file another application at
any time); see also Butland v. Bowen, 673 F. Supp. 638, 641 (D. Mass. 1987) (due
process claim presented, where denial notice sent to plaintiff was “misleading
enough to introduce a high risk of error into the claims adjudication process”
because it “falsely assured plaintiff that she could file another claim ‘at any time,’
when in fact she faced a four-year deadline”). Likewise, the Eastern District of
Pennsylvania stated: “Where a claimant can show an insufficiency of notice such
that ‘the notice cannot reasonably convey the required information[,]’ judicial
review of an ALJ’s decision may be sought.” Melloy v. Shalala, Civ. A. No. 94–1375,
1994 WL 689963, at *5 (E.D. Pa. Dec. 7, 1994) (quoting Christopher, 702 F. Supp. at
43).

9

Applying this law, in Penner v. Schweiker, 701 F.2d 256 (3d Cir. 1983), the
Third Circuit found that the plaintiff raised a colorable constitutional claim based
on the Commissioner’s failure to send a notice denying the plaintiff’s request for
reconsideration to the plaintiff’s attorney who represented the plaintiff because of
his mental disability. And in Aponte v. Sullivan, 823 F. Supp. 277, 282 (E.D. Pa.
Mar. 4, 1993), the United States District Court for the Eastern District of
Pennsylvania held that the plaintiff presented a colorable constitutional claim
where the notice given to him failed to inform him of the adverse consequences of
not filing a request for a hearing. See also Melloy, 1994 WL 689963, at *6
(constitutional claim presented, where plaintiff received “two notices—from the
same agency, on the same date, denying disability benefits—that contain[ed]
different information regarding the effect of certain administrative remedies”). In
Escalera v. Commissioner, on the other hand, the Second Circuit held that the
plaintiff’s failure to exhaust administrative remedies was not excused because the
relevant notices from the Social Security Administration “plainly stated that [the
plaintiff] had to make his request [to appeal] in writing, within 60 days,” and thus
the Commissioner had not misled the plaintiff to believe that his in-person
objections at an office of the Social Security Administration would satisfy the social
security appeals process. 457 F. App’x 4, 7 (2d Cir. 2011). Likewise, in Yeazel v.
Apfel, 148 F.3d 910, 912 (8th Cir. 1998), the Eighth Circuit found that a notice
denying the plaintiff’s disability application––which “informed [the plaintiff] that he

10

risked losing benefits should he fail to appeal and that he ought to appeal if he
thought the denial was wrong”––was “not misleading or likely to induce an
applicant to forego an appeal” and thus “satisfied due process.”
Johnson’s due process claim stems from the Commissioner’s alleged act of
misleading Johnson by labeling the May 2012 Notice of Decision “Partially
Favorable,” when in fact the decision is “unfavorable” according to Johnson, as it
“does not find [Johnson] disabled at a time that he had insured status and does not
award him any benefits.” (Doc. 9 at 3.) Johnson explains that he did not appeal the
May 2012 decision based on the inaccurate “Partially Favorable” label, which he
believed meant he was being awarded benefits and thus should not “jeopardize
[those] benefits” by appealing. (Id.) The Court finds Johnson’s argument without
merit, as the May 2012 Notice of Decision is accurate and sufficiently apprised
Johnson of his administrative remedies. Moreover, the Court rejects Johnson’s
argument that he had a mental impairment that contributed to his being misled by
the Notice of Decision.
A.

The Notice of Decision Accurately States that the ALJ’s
Decision Is “Partially Favorable.”

First, the Notice of Decision accurately states that the ALJ’s decision is
“partially favorable.” (Doc. 7-5 at 1.) Under the Social Security Administration’s
Program Operations Manual System (POMS), a “partially favorable” decision on a
Title II claim means the Commissioner “found the claimant disabled or blind, but
the established onset date . . . is unfavorable because it is after the alleged onset date
. . . .” POMS DI 25501.280(A)(1), available at https://secure.ssa.gov/apps10/

11

poms.nsf/lnx/0425501280 (last visited Oct. 13, 2017) (emphasis added).2 The May
2012 decision states that Johnson “must establish disability on or before [the date
last insured of June 30, 2009]” (Doc. 7-5 at 4), and concludes that Johnson “was not
disabled . . . through June 30, 2009,3 the last date insured,” but “became
disabled . . . beginning on December 1, 2010,” i.e., after the date last insured (id. at
14). The decision therefore clearly and correctly explains the meaning of “partially
favorable,” as used in the Notice of Decision, and finds that Johnson “was not
disabled” during the relevant period. (Id.) Had Johnson read the decision, he
would have understood its meaning, particularly given that he did not allege in his
original 2011 disability application any significant mental health condition,
inability to read or write, limited education, or other condition that would limit his
ability to understand such a decision. It is not too much for the Commissioner to
require claimants, whether represented by counsel or not, to at least read the ALJ
decision mailed to them with the Notice of Decision. Here, after referencing “the

Although the POMS does not have the force and effect of law, it is nevertheless persuasive
authority and thus is entitled to be given weight. See St. Mary’s Hosp. of Troy v. Blue Cross & Blue
Shield, 788 F.2d 888, 890 (2d Cir. 1986); Davis v. Sec’y of Health & Human Servs., 867 F.2d 336, 340
(6th Cir. 1989); Frerks v. Shalala, 848 F. Supp. 340, 350 (E.D.N.Y 1994).
2

The ALJ’s December 2016 Order of Dismissal advises that the May 2012 decision
incorrectly references June 30, 2009 as the date last insured, when in fact, “[u]pdated records . . .
show that continued work activity resulted in a date last insured of June 30, 2010.” (Doc. 7-8 at 6
(emphasis added).) On the other hand, the Commissioner states in her Reply to Johnson’s
Opposition that the date last insured is June 30, 2009, as stated in the May 2012 decision. (Doc. 12
at 2 n.2.) The Court need not resolve this issue because, as noted in the December 2016 Order, any
error would be harmless, given that the established disability onset date––December 1, 2010––is
after both June 30, 2009 and June 30, 2010. (Doc. 7-8 at 6.)
3

12

enclosed partially favorable decision,” ALJ Martin urges in the Notice of Decision:
“Please read this notice and my decision.” (Doc. 7-5 at 1.)
B.

The Notice of Decision Sufficiently Apprises Johnson of His
Administrative Remedies.

Second, the Notice of Decision sufficiently apprises Johnson of his
administrative remedies. Specifically, the Notice correctly states:
If you disagree with my decision, you may file an appeal with the
Appeals Council. . . . To file an appeal you must ask in writing that the
Appeals Council review my decision. . . . You must file your written
appeal within 60 days of the date you get this notice. The Appeals
Council assumes you got this notice 5 days after the date of the notice
unless you show you did not get it within the 5-day period.
(Id. at 1 (emphasis in original).) The Notice also properly warns of the
consequences should Johnson not file a written appeal on time:
If you do not appeal and the Appeals Council does not review my decision
on its own, my decision will become final. A final decision can be
changed only under special circumstances. You will not have the right
to Federal court review.
(Id. at 2.) Finally, the Notice accurately advises Johnson of his rights and
limitations if he opts not to file an appeal:
If you disagree with my decision and you file a new application instead
of appealing, you might lose some benefits or not qualify for benefits at
all. My decision could also be used to deny a new application for benefits
if the facts and issues are the same. If you disagree with my decision,
you should file an appeal within 60 days.
(Id. at 3.) Despite this clear and accurate language, Johnson admits that he did not
seek to appeal the May 2012 decision until November 2015, long past the 60-day
period. (See Doc. 1 at 2.)

13

C.

Johnson Has Not Asserted a Sufficiently Particularized
Statement of Mental Impairment to Constitute Good Cause for
Equitable Tolling of the Appeals Deadline.

Johnson contends that his “late request for an appeal is . . . excused under
Social Security Ruling 95-1p” (Doc. 1 at 3), which sets forth the criteria to determine
whether good cause exists for missing the deadline to request appellate review of
the denial of benefits. One of those criteria is “[w]hether [the claimant] had any
physical, mental, educational, or linguistic limitations (including any lack of facility
with the English language) which prevented [him] from filing a timely request or
from understanding or knowing about the need to file a timely request for review.”
SSR 95-1p, 1995 WL 259487, at *1 (April 26, 1995) (quoting 20 C.F.R. § 404.911(a)).
Johnson states in his Opposition that, although he “is not alleging that [the May
2012 Notice] was ineffective solely because of his mental capacity” (Doc. 9 at 2),
“[h]is mental capacity may have played a role in his not realizing he was being
misled” and thus failing to appeal4 (id. at 2–3 (emphases added)).
A social security claimant suffering from mental illness may in fact raise a
colorable due process claim when he asserts that his mental illness prevented him
from proceeding from one administrative level to another in a timely fashion.
Canales v. Sullivan, 936 F.2d 755, 758 (2d Cir. 1991) (citing Elchediak v. Heckler,
750 F.2d 892, 894 (11th Cir. 1985)). However, “a claimant’s argument that []he was

The language used in the Complaint is less ambiguous on the issue of whether Johnson
had a mental condition that contributed to his inability to understand the ALJ’s May 2012 decision:
“[Johnson] did not appeal the 2012 ALJ decision within the time allowed because the ALJ’s decision
misle[]d him and because he suffered a mental condition that impaired his ability to understand it.”
(Doc. 1 at 3 (emphasis added).)
4

14

so impaired as to be unable to pursue administrative remedies requires more than a
‘generalized allegation’ of confusion; it requires a ‘particularized allegation of
mental impairment plausibly of sufficient severity to impair comprehension.’”
Byam, 336 F.3d at 182 (quoting Stieberger, 134 F.3d at 40–41). The Second Circuit
explained: “A claim of constitutionally defective notice, even in the context of a
claim for disability benefits based on mental illness, cannot invoke federal court
jurisdiction merely upon a generalized allegation, long after the fact, that the
claimant was too confused to understand available administrative remedies.”
Stieberger, 134 F.3d at 41. In Steiberger, the Second Circuit found that the
heightened standard was met, where the plaintiff alleged that she had a mental
illness for decades, requiring hospitalization for 11 days for depression with suicidal
ideation; that she had “continuous treatment [since 1967] for depression, neurosis,
schizophrenia, and anxiety”; and that she had a 1974 diagnosis of “Schizophrenia
schizo-affective, depressed type.” Id. (internal quotation marks omitted). And in
Byam, the Second Circuit found that evidence of the claimant’s “long history of
depression, suicidal ideation with specific suicide attempts, and numerous
evaluations around the dates of her SSI applications documenting specific mental
disorders and cognitive, social, and emotional impairments” was “sufficiently
particularized” to meet Stieberger’s threshold allegation requirement. Byam, 336
F.3d at 183.
Here, in contrast, Johnson alleges merely that he “suffered a medical
condition that impaired his ability to full[y] understand ALJ Martin’s decision”

15

(Doc. 1 at 2), and that he “suffered a mental condition that impaired his ability to
understand [the ALJ’s decision]” (id. at 3) (emphases added). No specificity is
provided regarding the “medical/mental condition” that affected Johnson’s ability to
understand the ALJ’s decision. Cases where the heightened pleading standard is
met involve allegations of significantly greater mental impairments than alleged
here. See, e.g., Byam, 336 F.3d at 183; Stieberger, 134 F.3d at 41; Manney v. Astrue,
Civil Action No. 5:09–CV–255, 2010 WL 3766993, at *11 (July 23, 2010) (diagnoses
of agoraphobia, panic attacks, and depressive disorder by multiple treating and
consulting medical professionals during the relevant period), Report and
Recommendation adopted, 2010 WL 3766966 (D. Vt. Sept. 27, 2010). Moreover, as
noted, Johnson’s original 2011 claim did not involve allegations of a disabling
mental impairment, and ALJ Martin found that Johnson had at least a high school
education and was able to communicate in English. (See Doc. 7-5 at 7–8, 13.) The
June 2015 Appeals Council order states:
There are no treatment records relevant to the appeal filing period . . .
establishing that [Johnson] had severe mental deficits that would have
precluded him from timely filing his appeal. No treatment records
relevant to the appeal filing period were submitted with the request for
review, and there are few objective findings in the evidence of record
regarding [Johnson’s] mental functioning. However, there is a mental
health treatment record dated March 23, 2012, shortly before the appeal
filing period, indicating that [Johnson’s] mental status exam was
normal with the exception of a slightly depressed mood.
(Doc. 7-6 at 4.)
Johnson has failed to sufficiently allege that his medical/mental impairments
prevented him from pursuing an appeal of the ALJ’s May 2012 decision.

16

III.

The Court Lacks Jurisdiction to Review the Commissioner’s Decision
Not to Reopen Johnson’s Claim.
Johnson initially advises in his Opposition that he “is not alleging

constructive reopening.” (Doc. 9 at 2.) Later in the same document, however, he
instructs that the Court may review “decisions that the Commissioner
constructively reopens so long as it otherwise has jurisdiction,” and states (referring
to the December 2016 ALJ decision): “the ALJ clearly reopened the [Appeals
Council’s June 2015] good-cause determination and significantly altered the
[Appeals Council’s] previous findings by extending them to the allegation of a
misleading notice.” (Id. at 5.) To the extent that Johnson seeks remand based on a
constructive reopening of the initial claim in either the June 2015 Appeals Council
order or the December 2016 ALJ decision, the claim fails.
The Appeals Council plainly declined to reopen the January 2011 claim in its
June 2015 Order, finding that “there is no good cause to extend the time for filing,”
and thus “dismiss[ing] [Johnson’s] request for review.” (Doc. 7-6 at 4.) That Order
does not constitute an “initial determination,” and thus is not subject to judicial
review. The regulations specifically provide that “[t]he dismissal of a request for
Appeals Council review is binding and not subject to further review.” 20 C.F.R. §
404.972; see Dietsch, 700 F.2d at 867 (“The Appeals Council may . . . extend the
filing time on a showing of good cause, 20 C.F.R. § 404.968(b), but a refusal to do so,
like a dismissal of an untimely request, is not subject to judicial review.”) (citing
Watters v. Harris, 656 F.2d 234, 239–40 (7th Cir. 1980); Sheehan v. Secretary,

17

Health, Educ. and Welfare, 593 F.2d 323, 325 (8th Cir. 1979); Maloney v. Harris,
526 F. Supp. 621, 622 (E.D.N.Y. 1980)).
In his December 2016 decision, the ALJ also declined to reopen the claim,
stating: “none of the conditions for reopening . . . is present in this case,” and “the
previous decision remains final and binding.” (Doc. 7-8 at 6.) Both the ALJ decision
and the Appeals Council order considered whether good cause existed to extend
Johnson’s time to appeal the May 2012 ALJ decision; and neither reconsidered the
merits of that decision, i.e., whether it was supported by substantial evidence and
applied the correct legal standard. (See Docs. 7-6 and 7-8.) Thus, neither decision
constitutes a constructive reopening of Johnson’s original claim. Moreover, the
Commissioner’s discretionary denial of Johnson’s request to reopen that claim is not
subject to judicial review absent a colorable constitutional claim, which does not
exist here as discussed above. See Califano, 430 U.S. 99 at 108 (“allow[ing] a
claimant judicial review simply by filing and being denied a petition to reopen his
claim would frustrate the congressional purpose . . . to impose a 60-day limitation
upon judicial review of the [Commissioner’s] final decision on the initial claim for
benefits. Congress’ determination so to limit judicial review to the original decision
denying benefits is a policy choice obviously designed to forestall repetitive or
belated litigation of stale eligibility claims”) (citation omitted). In the absence of
either constructive reopening or a constitutional claim, the Court lacks jurisdiction
to review the Commissioner’s decision not to reopen Johnson’s claim. Byam, 336
F.3d at 180.

18

IV.

The Court Lacks Jurisdiction to Review the Commissioner’s Decision
to Preclude Johnson’s Claim Based on the Doctrine of Res Judicata.
Finally, the Commissioner argues that Johnson’s pending claim was properly

precluded from consideration by the Appeals Council in June 2015 on the grounds of
res judicata. (Doc. 7 at 8–9 (citing Doc. 7-6).) The Commissioner correctly points
out that this claim is a duplicate of Johnson’s original claim which resulted in the
May 2012 ALJ decision, as the claims involve essentially the same impairments,
alleged disability period, and evidence. (Id.; see also Doc. 12 at 5–6.) In response,
Johnson claims that, because the Appeals Council’s 2015 order does not consider the
“misleading nature” of the May 2012 decision, this case and the Appeals Council
order do not address the same facts or issues, and thus res judicata does not apply
to Johnson’s current allegations. (Doc. 9 at 5.)
The Commissioner’s decision to preclude consideration of Johnson’s pending
claim on the basis of res judicata is not judicially reviewable. When a social
security claimant has received a previous determination or decision under the
Social Security Act and that determination or decision has become final by either
administrative or judicial action, the ALJ may “dismiss a hearing request entirely
or . . . refuse to consider any one or more of the issues because [the doctrine of res
judicata applies].” 20 C.F.R. § 404.957(c)(1). Such a denial “does not represent a
final decision upon which administrative or judicial review may be requested.”
Bessette v. Comm’r of Soc. Sec., No. 09-CV-735 TJM/DRH, 2010 WL 5677184, at *4
(N.D.N.Y. Dec. 14, 2010) (citing Hensley v. Califano, 601 F.2d 216 (5th Cir. 1979)
(holding that attempted appeals regarding denials to reopen and decisions based on

19

res judicata are “not reviewable”)); see also Byam, 336 F.3d at 180–82; Yeazel, 148
F.3d at 911 (“courts generally lack jurisdiction to review denials of benefits based on
res judicata, because such denials are entered without a hearing”); Stauffer v.
Califano, 693 F.2d 306, 307 (3d Cir. 1982) (“the courts of appeals of several circuits
have held that dismissals of ‘new’ claims that effectively repeat previously denied
claims and which are therefore held by the [Commissioner] to be res judicata are
not reviewable”); Ellis v. Schweiker, 662 F.2d 419, 419 (5th Cir. 1981) (court lacked
jurisdiction where the “[Commissioner] denied benefits on grounds of res judicata
and simultaneously refused to reopen an earlier claim”); Shrader v. Harris, 631
F.2d 297, 300 (4th Cir. 1980) (underlying rationale preventing court review of
Commissioner’s decision not to reopen applies equally to Commissioner’s dismissal
of claim based on res judicata).
Conclusion
For these reasons, the Court holds that there is no “final decision” of the
Commissioner and thus the Court is without jurisdiction over Johnson’s claim.
Although it is possible for a defective or misleading notice of disability decision to
give rise to a colorable constitutional due process claim, the Commissioner’s May
2012 Notice of Decision was not defective or misleading: it properly advised Johnson
of both the ALJ’s decision and Johnson’s appeal rights. Moreover, Johnson has not
pled a mental impairment sufficient to constitute good cause for his failure to timely
appeal the ALJ’s May 2012 decision.

20

Therefore, the Court GRANTS the Commissioner’s Motion to Dismiss (Doc.
7), DENIES Johnson’s Motion to Remand (Doc. 9), and DISMISSES Johnson’s
Complaint (Doc. 1) for lack of subject-matter jurisdiction. The Clerk shall enter
judgment on behalf of the Commissioner.
Dated at Burlington, in the District of Vermont, this 25th day of October
2017.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge

21