West v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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BOBBY WEST,

Plaintiff, MEMORANDUM & ORDER

1:21-CV-00770(EK)

-against-

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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ERIC KOMITEE, United States District Judge:

Plaintiff Bobby West challenges the Social Security

Administration’s March 2019 decision regarding his claim for

disability insurance benefits. Before the Court is the

Commissioner’s motion to dismiss, or, in the alternative, motion

for judgment on the pleadings. For the following reasons, the

Commissioner’s motion to dismiss is granted.

I. Background

A. Procedural Background

West has filed four separate applications before the

SSA. This appeal comes from the decision on the last of those.

The administrative law judge below issued what the Commissioner

calls a fully favorable decision in response to West’s February

2017 application, finding him disabled and awarding benefits.

Nevertheless, West challenges two aspects of that ruling: (1)

the commencement date of the benefits awarded, and (2) the

denial of West’s request to reopen his prior applications.

Compl. ¶¶ 13, 15.

ALJ Michelle Allen’s decision granted West benefits

retroactive to March 2017 — the month following West’s final

application — pursuant to 20 C.F.R. § 416.335. Id. ¶ 12. She

declined, however, to revisit West’s three prior actions before

the Social Security Administration. Mot. To Dismiss, Ex. 2

(“ALJ Decision”) at 9. Those applications — in October 2012,

January 2015, and December 2015 — all culminated in the denial

of benefits. Compl. ¶¶ 6-8.

West did not appeal his first two denials, electing

instead to file new applications. This rendered those decisions

final. Id. Following the denial of his February 2015

application, however, West contacted the Social Security

Administration (“SSA”). Attn’y Aff. of Eugenie Gilmore

(“Gilmore Aff”) ¶ 6, ECF No. 14-1. This contact led West to

submit a Request for Reconsideration, rather than an appeal.

West alleges that the SSA then lost this request. Id. ¶ 8.

Although West’s counsel submitted a Request for a Hearing, along

with a letter requesting a late appeal for good cause shown, id.

¶ 9; Mem. of Law in Opp’n to Def.’s Mot. to Dismiss (“Pl.’s

Opp’n”), Ex. 2 at 10-13, ECF No. 14-2, no hearing was held until

2018, following the subsequent (and final) application.

West ultimately filed that fourth application in

February 2017, Compl. ¶ 10, asserting a disability onset date of

November 2001. Id. ¶ 5.1 On December 12, 2018, ALJ Allen held a

hearing on the 2017 claim. Id. She concluded that West was

indeed disabled, but as noted above, she granted benefits

retroactive only to March 2017 despite West’s request for

benefits dating back to 2001. Id. ¶ 12; Def.’s Mot. to Dismiss,

Ex. 1 (“ALJ Decision”) 9, ECF No. 13-2.

The Appeals Council denied West’s request for review

of the ALJ’s decision, rendering it final. Compl. ¶ 14.

Although West did not timely seek review of that decision in

this Court, the Appeals Council granted him additional time to

file, and this action was commenced within the extended window.

Id. ¶ 16; Compl. Ex. 1, ECF No. 1-1.

The Commissioner has moved to dismiss this appeal on

the ground that neither the commencement date of benefits nor

the decision not to reopen prior applications is reviewable.

Def.’s Mot. to Dismiss (citing Heller v. Commissioner of Social

Security, 328 Fed. Appx. 74, 75 (2d Cir. 2009); 20 C.F.R.

§ 416.1403(a)(5)). West, however, argues that I can re-examine

these decisions because in reviewing medical evidence from 2015,

1 It is worth noting that West’s list of disabling medical conditions

differs somewhat between his applications, though certain conditions such as

a broken femur, bipolar disorder, and diabetes are consistent. See Tr. 196,

617.

ALJ Allen “constructively” reopened his prior applications.

Pl.’s Opp’n at 2-4. Further, he argues that the SSA denied him

due process when it mishandled his prior attempt to appeal the

denial of his third application in or about August 2016. Id. at

4.

B. The ALJ’s Disability Evaluation

In her March 2019 decision, ALJ Allen found that West

had several severe impairments, including diabetes, bipolar

disorder, impairments from a previously broken femur, liver

impairment, substance abuse disorder, diabetic retinopathy,

lumbar radiculopathy, and obesity. ALJ Decision 4. In making

these findings, she cited medical evidence from time periods

prior to West’s December 11, 2015 application, including a

“videonystagmography in February 2015,” “[l]laboratory tests

from April through September 2015,” a “[t]reatment note from

August 2008,” [e]xaminations from February 2015 through April

2015,” a “laboratory test from September 2015,” a “magnetic

resonance imaging of the lumbar spine in March 2015,” an

“electrodiagnostic study in April 2015,” an “examination in July

2015,” an “x-ray in July 2015,” “outpatient treatment in July

2015,” “[t]reatment notes from July 2015,” and reports from

emergency room visits in April 2015 and June 2015. Id. at 5-7.

The decision also cites several times to evidence from 2017.

Id.

Ultimately, the ALJ held that West had been disabled

since February 28, 2017, the date of his last application. Id.

at 9. The decision expressed no opinion about whether West was

disabled before this date, but explained that social security

benefits do not become payable until the month after the month

in which the application at issue was filed. Id. (citing 20

C.F.R. § 416.335). The ALJ explicitly found no basis to reopen

any prior application. Id. at 25.

II. Standard of Review

The Commissioner moves to dismiss pursuant to Rule

12(b)(1), arguing that this court lacks jurisdiction to consider

this appeal because the “fully favorable” ALJ Decision is not

reviewable. Def.’s Mot. to Dismiss 1-2, ECF No. 13-1 (“Def.’s

Mot.”). In support of this contention, the agency relies on the

regulation dictating that SSI benefits are not payable for any

period prior to the month after the application is filed.2

Furthermore, the agency contends, its denial of West’s request

to reopen his prior applications is discretionary, and not

subject to judicial review. Id. at 1 (citing 42 U.S.C.

§§ 405(g), 1383(c)). In the alternative, the Commissioner moves

for judgment on the pleadings pursuant to Rule 12(c). Id.3

2 See id. (citing 20 C.F.R. § 416.335).

3 At the time the Commissioner’s motion was filed, the motion for

judgment on the pleadings was not ripe, as the Commissioner had not filed an

“A case is properly dismissed for lack of subject

matter jurisdiction under Rule 12(b)(1) when the district court

lacks the statutory or constitutional power to adjudicate it.”

Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).

This power is defined and constrained by Article III, which

“restricts federal courts to the resolution of cases and

controversies” and “requires that the party invoking federal

jurisdiction have standing.” Davis v. Fed. Election Comm'n, 554

U.S. 724, 732 (2008). A district court’s jurisdiction over

social security appeals is additionally governed by 42 U.S.C.

§ 405(g), which provides that “[a]ny individual, after any final

decision of the Secretary made after a hearing to which he was a

party . . . may obtain a review of such decision by a civil

action commenced within sixty days.”

When considering a motion to dismiss for lack of

subject matter jurisdiction under Rule 12(b)(1), a court must

“accept as true all material allegations of the complaint, and

must construe the complaint in favor of the complaining party.”

Bohnak v. Marsh & McLennan Companies, Inc., 79 F.4th 276, 283

(2d Cir. 2023); Nat. Res. Def. Council v. Johnson, 461 F.3d 164,

answer or submitted the administrative transcript pursuant to 42 U.S.C.

§ 405(g), so the pleadings were not closed. See Fed. R. Civ. P. 12(c);

Healthcare Ass’n of N.Y.S. v. Pataki, 471 F.3d 87, 93 (2d Cir. 2006).

However, the Commissioner has since filed the administrative record, ECF Nos.

16, 19, allowing for review of the motion for judgment on the pleadings.

However, because the motion includes arguments only under Rule 12(b)(1), this

order is assessed under that standard.

171 (2d Cir. 2006). Further, “[i]n resolving a motion to

dismiss for lack of subject matter jurisdiction under Rule

12(b)(1), a district court . . . may refer to evidence outside

the pleadings.” Makarova, 201 F.3d at 113.

III. Discussion

A. West Has Not Sufficiently Alleged a Reason to Review the

Commissioner’s Decision Not to Reopen his Prior

Applications

Despite the ultimate finding of disability in ALJ

Allen’s opinion, West is seeking to extend the retroactive

benefits granted to him to an earlier date. Generally, a

district court has jurisdiction to review the final judgment of

the Commissioner denying an application for Social Security

disability benefits. 42 U.S.C. § 405(g). However, “fully

favorable” determinations cannot, generally speaking, be

appealed: “judicial review over Social Security determinations

pursuant to 42 U.S.C. § 405(g) makes no provision for judicial

review of a determination favorable to the complainant.” Heller

v. Comm'r of Soc. Sec., 328 F. App'x 74, 75 (2d Cir. 2009).4

The ALJ’s decision in this case was favorable, despite

West’s assertion that it did not provide benefits back to the

date West sought, as it provided benefits to the full extent

4 The modest carve-out to this rule, reserved for named plaintiffs in

class actions, in inapposite here. See Jones v. Califano, 576 F.2d 12, 18

(2d Cir. 1978); Wheeler v. Heckler, 19 F.2d 595, 600 (2d Cir. 1983).

permitted by the regulations. Under 20 C.F.R. § 416.335,

benefits may be paid beginning in the month following the month

in which the application was filed. Thus, in reviewing a

decision on an application filed in February 2017, the SSA was

restrained by the Code of Federal Regulations from granting

benefits any earlier than March 2017, absent a reopening of a

prior application.

Relatedly, an agency’s decision not to reopen prior

claims for social security benefits is generally not reviewable

by a district court. Califano v. Sanders, 430 U.S. 99, 107-08

(1977). “Nevertheless, federal courts may review the

Commissioner’s decision not to reopen a disability application

in two circumstances: where the Commissioner has constructively

reopened the case and where the claimant has been denied due

process.” Byam v. Barnhart, 336 F.3d 172, 180 (2d Cir. 2003).

Thus, because West is requesting an extension of his benefits

primarily through the mechanism of reopening his prior

applications, this court may review the decision below if either

of these criteria are satisfied.

1. West’s Allegations Do Not Support a Finding of

Constructive Reopening

First, West argues that in reviewing evidence from

2015 and earlier, the Commissioner constructively reopened his

prior applications. Pl.’s Opp’n 2-4. “If the Commissioner

reviews the entire record and renders a decision on the merits,

the earlier decision will be deemed to have been reopened,”

rendering the claim subject to judicial review. Byam, 336 F.3d

at 180 (emphasis added). West has not satisfied this standard.

West’s argument on this point implicates only his

third SSI application, not his first or second. Aside from a

single mention of a “[t]reatment note from 2008,” ALJ Decision

5, ALJ Allen cited no evidence predating West’s October 2012 or

January 2015 applications. Therefore, the ALJ cannot be said to

have rendered a decision on the merits of those applications or

constructively reopened them. The decision not to reopen these

decisions is thus not reviewable.

By contrast, the ALJ did cite several items from the

period prior to West’s December 2015 application. See ALJ

Decision 5-7. Still, she stated explicitly that she was not

reopening the prior decisions. Administrative Tr. (“Tr.”) 25

(“The undersigned does not find a basis to reopen any prior

Title 16 application.”). Applying the doctrine of constructive

reopening, I agree that she did not do so.

District courts in this Circuit have read the doctrine

of constructive reopening narrowly. In doing so, they have

repeatedly rejected the argument that the doctrine

sweeps so broadly . . . that a prior application is

constructively reopened simply because, in

adjudicating a later application, the ALJ had

considered evidence from the earlier period to

establish a plaintiff’s medical history or background

but did not assess the merits of the earlier

application.

Cassandra S. v. Kijakazi, No. 22-CV-328, 2023 WL 2867068, at *17

(D. Conn. Jan. 30, 2023).

The seminal case in this setting may be Hussain v.

Commissioner of Social Security, No. 13-CV-3691, 2014 WL 4230585

at *12 (S.D.N.Y. Aug. 27, 2014), report and recommendation

adopted, No. 13-CV-3691, 2014 WL 5089583 (S.D.N.Y. Sept. 25,

2014). There, Magistrate Judge Gorenstein noted that ALJs

“regularly review prior evidence for the purpose of considering

an open application, as such evidence is often relevant to the

claimant’s medical condition for the period in which benefits

are claimed.” Id. Accordingly, “a court should not infer that

an ALJ considered the merits of a prior application simply

because the ALJ reviewed medical evidence dating from the prior

application period.” Id.; see also Saxon v. Astrue, 781 F.

Supp. 2d 92, 99 (N.D.N.Y. 2011) (“A matter is not constructively

reopened when the ALJ merely discusses prior proceedings and

evidence to describe a claimant's background.”); Grant v.

Shalala, No. 93-CV-0124, 1995 WL 322589, at *7 (W.D.N.Y. Mar.

13, 1995) (“[T]here is no reopening of an application where the

ALJ discusses prior proceedings and evidence only to describe a

claimant's background, and not to review the merits of the prior

application.”).

Instead, Hussain counseled, courts should be mindful

of the purpose underpinning the constructive reopening doctrine.

That is “the notion that” in reviewing the merits of an out-of-

period decision, “the agency has waived its right to assert res

judicata as a bar to the reconsideration of a previously-denied

application.” Hussain, 2014 WL 4230585 *11 (citing Byam, 336

F.3d at 180, and other cases). In that light, Hussain stated,

waiver occurs “where the ALJ reconsiders the merits of the prior

application as if the prior adverse determination were not

binding on the claimant.” Id. (emphasis added).

That is not what happened here. As the administrative

record reveals, every reference to evidence predating December

2015 discussed material submitted by West as part of the 2017

application. See Tr. 268-404, 412-77. ALJ Allen marshaled

these records in aid of her decision on the 2017 application,

without referencing or reconsidering any earlier application.

ALJ Decision 5-7. In context, it was logical that she do so:

the history and development of a claimant’s medical conditions

are often relevant to an assessment of current disability. See

Hussain, 2014 WL 4230585 at *12. The ALJ certainly did not

review the “entire record” of the prior denials, as Byam

contemplated. 336 F.3d at 180. And she did not address the

”merits of the earlier application[s] themselves,” per Cassandra

S., 2023 WL 2867068, at *17, nor proceed as if the prior adverse

determinations were not binding on West. Hussain, 2014 WL

4230585 *11. Therefore, the references to evidence from 2015

and earlier cannot be said to have constructively reopened the

agency’s earlier dispositions.

2. West’s Due Process Claim Does Not Render The ALJ’s

Decision Not to Reopen His 2015 Application

Reviewable

West also argues that his due process rights were

violated when (i) a representative of the Social Security

Administration allegedly told him (incorrectly) that he could

appeal the denial of his December 2015 decision using a Request

for Reconsideration form; (ii) the Administration sent him that

form; and (iii) the SSA then lost the Request for

Reconsideration that he submitted, delaying his appeal and

ultimately requiring him to submit a new application. Pl.’s

Opp. 7.

A claim for Social Security benefits triggers

constitutional due process protections. Mathews v. Eldridge,

424 U.S. 319, 322-22 (1976). These protections “require[] that

the Secretary give claimants notice reasonably calculated to

apprise them of the pendency of action which may permanently

affect their rights, and an opportunity to present their

objections to that action.” Rooney v. Shalala, 879 F. Supp.

252, 255 (E.D.N.Y. 1995). In reviewing a decision not to reopen

a prior application, the central question relating to due

process is “whether [the claimant] was impaired in [his] ability

to understand and pursue administrative and legal procedures.”

Byam, 336 F.3d at 183. If the answer to this question is yes,

the decision not to reopen becomes judicially reviewable. Id.

Such impairments have been found when a claimant’s

cognitive limitations prevent them from either understanding or

acting upon instructions from the Social Security Administration

to appeal a decision. Id. Similarly, denial notices and

notices of reconsideration that inadequately explain the

consequences of failing to request a hearing following an

unfavorable decision have been found to violate due process.

Rooney, 879 F. Supp. 252; See also Gonzalez v. Sullivan, 914

F.2d 1197 (9th Cir. 1990); Day v. Shalala, 23 F.3d 1052 (6th

Cir. 1994).

Here, however, West has alleged no cognitive

impairments that would prevent him from grasping the

consequences of failing to appeal his decision. Further, the

denial notice of his February 2015 application clearly laid out

the consequences of failing to pursue an appeal, stating: “If

you disagree with this decision and you file a new application

instead of appealing, you might lose some benefits, or not

qualify for any benefits. So, if you disagree with this

decision, you should ask for an appeal within 60 days.” Tr.

601-602. Finally, West does not explain why the Request for

Reconsideration form was incorrect, as 20 C.F.R. § 416.1407

establishes that “[r]econsideration is the first step in the

administrative review process that we provide if you are

dissatisfied with the initial determination. If you are

dissatisfied with our reconsideration determination, you may

request a hearing before an administrative law judge.”

Further, courts in this Circuit have determined that

receiving incorrect assistance from the Social Security

Administration may not be sufficient to establish a due process

violation, even when this misinformation causes a claimant to

file a new application instead of an appeal. See, e.g.,

Stellacci v. Barnhart, No. 02-CV-8875, 2003 WL 22801554

(S.D.N.Y. Nov. 24, 2003). As in Stellacci, the denial notice of

West’s 2015 application explained that filing a new application,

as opposed to an appeal, may result in the loss of benefits.

See Id. at *4; Tr. 601-02. Therefore, West’s allegations of

inadequate assistance from the Social Security Administration

during his effort to appeal do not rise to the level of a due

process violation.

* * *

West has not established a constructive reopening nor

a due process violation. Consequently, the ALJ’s decision not

to reopen his prior applications is not reviewable.

IV. Conclusion

For the foregoing reasons, the Commissioner’s motion is

granted, and the clerk of court is respectfully directed to

close the case.

SO ORDERED.

/s/ Eric Komitee__________

ERIC KOMITEE

United States District Judge

Dated: April 15, 2024

Brooklyn, New York