Lewis v. Commissioner of Social Security

Filing 17

ORDER ADOPTING REPORT AND RECOMMENDATION: It is ORDERED that the Magistrate Judge's 13 Report and Recommendation is ADOPTED; Defendant's 8 Motion to Dismiss is hereby GRANTED; Plaintiff's 1 Complaint is DISMISSED WITH PREJUDICE; and this matter is ORDERED STRICKEN from the active docket. Signed by District Judge John Preston Bailey on 4/9/18. (cnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
ELKINS
WILLIAM KIRBY LEWIS,
Plaintiff,
v.

Civil Action No. 2:17-CV-131
(Judge Bailey)

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
On this day, the above-styled matter came before this Court for consideration of the
Report and Recommendation of United States Magistrate Judge Robert W. Trumble [Doc.
13] dated March 12, 2018. Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court is required to
make a de novo review of those portions of the magistrate judge’s findings to which
objection is made. However, failure to file objections to the magistrate judge’s proposed
findings and recommendation permits the District Court to review the recommendation
under the standards that the District Court believes are appropriate, and under these
circumstances, the parties’ right to de novo review is waived. See Webb v. Califano, 468
F.Supp. 825 (E.D. Cal. 1979). Service was accepted on the date the R&R was filed, March
12, 2018. Plaintiff timely filed his objections on March 26, 2018 [Doc. 15]. Accordingly, this
Court will review the portions of the R&R to which objection was made under a de novo
standard of review; the remaining portions of the R&R have been reviewed for clear error.

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I.

Factual and Procedural History
On July 15, 2012, plaintiff filed his first Title II claim for Disability Insurance Benefits

(“DIB”), alleging that his disability began on October 15, 2011. Plaintiff’s claim was denied
initially on April 23, 2013, and there is no evidence to suggest that this decision was
appealed. Two years later, on March 23, 2014, plaintiff filed a second Title II application
for DIB, alleging that his disability began on January 15, 2012, which was later amended
to August 3, 2012. This application was denied initially and on reconsideration. After these
denials, plaintiff filed a written request for a hearing before an ALJ. After the hearing, the
ALJ issued a decision concluding that plaintiff was not disabled within the meaning of the
Social Security Act.
Although plaintiff filed a request for review, the Appeals Council sent a Notice of
Appeals Council Action informing plaintiff that it found no reason to reopen the final
decision on plaintiff’s first application for DIB, which was issued on April 23, 2013. In
addition, the notice informed plaintiff that the doctrine of res judicata applied to his second
application for DIB because the evidence he submitted was “duplicative, cumulative, or did
not relate to the period at issue.” [Doc. 9-1 at 51]. Because it found that res judicata
applied, it informed plaintiff that it planned to vacate the ALJ’s decision and dismiss his
request for a hearing. On October 27, 2017, the Appeals Council issued a Notice of Order
vacating the ALJ’s order and dismissed plaintiff’s request for a hearing based on res
judicata. Id.
On October 30, 2017, the plaintiff filed his Complaint in this Court for judicial review
of the Commissioner’s final decision pursuant to Section 205(g) of the Social Security Act.
Defendant filed her Motion to Dismiss [Doc. 8], arguing that this Court lacks jurisdiction to
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review a dismissal based on administrative res judicata [Doc. 9]. In response, the plaintiff
argued the Appeals Council erred by vacating the ALJ’s decision and denying his request
for review based on res judicata because the ALJ’s decision was a de facto reopening of
plaintiff’s first application for DIB; therefore, res judicata does not apply [Doc. 11].
In his R&R, the magistrate judge found the Commissioner’s final decision with
respect to the plaintiff’s second application for DIB is the October 27, 2017, Order vacating
the ALJ’s decision on the merits and denying plaintiff’s request for a hearing on the basis
of res judicata. As such, the magistrate judge found it was clear that the Commissioner did
not choose to reopen or reconsider plaintiff’s first application for DIB.

Rather, the

Commissioner chose to deny plaintiff’s second application for DIB on the basis of
administrative res judicata. Accordingly, because the Commissioner did not reopen or
reconsider plaintiff’s first application and denied his second application on the basis of res
judicata, this Court lacks jurisdiction to review it absent a constitutional objection or claim
that res judicata was improperly applied. See McGowen v. Harris, 666 F.2d 60, 65 (4th
Cir. 1981). Finding neither of the above, the magistrate judge found this Court lacks
subject-matter jurisdiction to review plaintiff’s claim.
II.

Applicable Law
“As a general rule, federal courts lack jurisdiction to review a decision by the

[Commissioner] not to reopen a previous claim for benefits.” Kasey v. Sullivan, 3 F.3d 75,
78 (4th Cir. 1993) (citing Califano v. Sanders, 430 U.S. 99 (1977)). The United States
Court of Appeals for the Fourth Circuit has “recognized, however, an exception to that rule
when a claim that otherwise would be barred by res judicata has been, in effect,

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reconsidered on the merits at the administrative level.” Id. (citing McGowen, 666 F.2d at
65–66). Standing alone, McGowen can be read to suggest that reconsideration of the
merits at any level, regardless of any subsequent administrative action, would de facto
reopen the previous claim for benefits. See Id. “But a district court has jurisdiction to
review only the Secretary's final decision, and when, as here, that is the decision of the
Appeals Council, it is to that decision the court must look to determine whether under
McGowen's rule it involved an actual reopening of an earlier determination.” Hall v.
Chater, 52 F.3d 518, 521 (4th Cir. 1995) (citing Johnson v. Sullivan, 936 F.2d 974, 975
n.3, 975–76 (7th Cir. 1991)).
III.

Discussion
In his Objections [Doc. 15], the plaintiff asserts four assignments of error. First, he

argues that the R&R incorrectly states the date for initial Title II application of DIB as May
21, 2014, instead of March 21, 2014. (Id. at 1). Second, plaintiff asserts the magistrate
judge erred by not applying the McGowen “reopening rule,” as discussed below. (Id. at
2). Third, the plaintiff asserts the magistrate judge erred in finding the ALJ’s full hearing of
the evidence did not constitute a reopening of the first and second applications for Title II
benefits. (Id.). Finally, plaintiff objections to the magistrate judge’s finding that no new
evidence was submitted at the ALJ hearing. (Id. at 3).
First, the plaintiff’s argument concerning the date on which the second application
was filed in of no consequence. 20 C.F.R. § 404.988 states that “[a] determination, revised
determination, decision, or revised decision may be reopened– (a) within 12 months of the
date of the notice of the initial determination for any reason.” In this case, there existed

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no reason to reopen the decision or determination because, as the magistrate judge points
out, res judicata applied to the plaintiff’s second application for DIB [Doc. 13 at 2].
Accordingly, plaintiff’s first objection is OVERRULED.
Second, plaintiff asserts the magistrate judge erred by not applying the McGowen
“reopening rule.” As explained above, the magistrate judge found the Commissioner’s final
decision with respect to the plaintiff’s second application for DIB is the October 27, 2017,
Order vacating the ALJ’s decision on the merits and denying plaintiff’s request for a hearing
on the basis of res judicata. As such, the magistrate judge found it was clear that the
Commissioner did not choose to reopen or reconsider plaintiff’s first application for DIB.
Rather, the Commissioner chose to deny plaintiff’s second application for DIB on the basis
of administrative res judicata. Accordingly, because the Commissioner did not reopen or
reconsider plaintiff’s first application and denied his second application on the basis of res
judicata, this Court lacks jurisdiction to review it absent a constitutional objection or claim
that res judicata was improperly applied. See McGowen, 666 F.2d at 65. Finding neither
of the above, the magistrate judge correctly found this Court lacks subject-matter
jurisdiction to review plaintiff’s claim. Accordingly, this objection is OVERRULED.
Third, the plaintiff asserts the magistrate judge erred in finding the ALJ’s full hearing
of the evidence did not constitute a reopening of the first and second applications for Title
II benefits. Defendant correctly responds that the plaintiff argues for the first time in his
objection that his second claim was not the same as his first for the purposes of res
judicata because there was new and material evidence submitted for the period in question.
Because the plaintiff has attempted to assert this new issue in his objection, this Court

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OVERRULES the same. See Samples v. Ballard, 860 F.3d 266, 273 (4th Cir. 2017).
In his Fourth, and final objection, plaintiff argues the magistrate judge’s finding that
no new evidence was submitted at the ALJ hearing was in error. Here, the Appeals Council
sent a Notice of Appeals Council Action informing plaintiff that it found no reason to reopen
the final decision on plaintiff’s first application for DIB, which was issued on April 23, 2013.
In addition, the notice informed plaintiff that the doctrine of res judicata applied to his
second application for DIB because the evidence he submitted was “duplicative,
cumulative, or did not relate to the period at issue.” [Doc. 9-1 at 51]. Because it found that
res judicata applied, it informed plaintiff that it planned to vacate the ALJ’s decision and
dismiss his request for a hearing. On October 27, 2017, the Appeals Council issued a
Notice of Order vacating the ALJ’s order and dismissed plaintiff’s request for a hearing
based on res judicata. Id. Accordingly, the final objection is OVERRULED.
IV.

Conclusion
Upon review of the above, it is the opinion of this Court that the Report and

Recommendation [Doc. 13] should be, and is, hereby ORDERED ADOPTED for the
reasons more fully stated therein. Accordingly, the Defendant’s Motion to Dismiss Plaintiff’s
Complaint [Doc. 8] is GRANTED, Plaintiff’s Complaint [Doc. 1] is DISMISSED WITH
PREJUDICE, this matter is hereby ORDERED STRICKEN from the active docket of this
Court.
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record.

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DATED: April 9, 2018.

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