# May v. Commissioner Social Security Administration

> District Court, D. Oregon · February 4, 2025

URL: https://www.frixlaw.com/law-library/cases/10793667

## Case

- **Court:** District Court, D. Oregon
- **Decided:** February 4, 2025
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- affirming the district court’s dismissal of the claimant’s “untimely” appeal to federal court and explaining that the claimant’s “complaint was late because it was filed more than sixty-five days after the Appeals Council’s decision” (first citing 42 U.S.C. § 405(g

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

KEVIN M., Case No. 3:19-cv-01863-SB

Plaintiff,1 OPINION AND ORDER

v.

COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,

Defendant.

BECKERMAN, U.S. Magistrate Judge.
Kevin M. (“Plaintiff”) initially filed this appeal on November 19, 2019, challenging the
Commissioner of Social Security’s (“Commissioner”) denial of his application for Disability
Insurance Benefits (“DIB”) under Title II of the Social Security Act. The following year, the
Court granted the Commissioner’s unopposed motion to remand under sentence six of 42 U.S.C.
§ 405(g).
The Commissioner now moves for entry of judgment under Federal Rule of Civil
Procedure (“Rule”) 58. The parties have consented to the jurisdiction of a magistrate judge under

1 In the interest of privacy, this opinion uses only the first name and initial of the last
name of the non-governmental party.
28 U.S.C. § 636(c). For the reasons explained below, the Court denies the Commissioner’s
motion.
STANDARD OF REVIEW
“As with other agency decisions, federal court review of social security determinations is
limited.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). That is

so because “[f]or highly fact-intensive individualized determinations like a claimant’s
entitlement to disability benefits, Congress places a premium upon agency expertise, and, for the
sake of uniformity, it is usually better to minimize the opportunity for reviewing courts to
substitute their discretion for that of the agency.” Id. (quoting Consolo v. Fed. Mar. Comm’n,
383 U.S. 607, 621 (1966)). Adhering to this principle, courts “follow three important rules” in
reviewing social security determinations. Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir.
2015).
First, courts “leave it to the [agency] to determine credibility, resolve conflicts in the
testimony, and resolve ambiguities in the record.” Id. (quoting Treichler, 775 F.3d at 1098).

Second, courts “will ‘disturb the Commissioner’s decision to deny benefits only if it is not
supported by substantial evidence or is based on legal error.’” Id. (quoting Treichler, 775 F.3d at
1098). Third, if the agency “‘commits legal error, [courts] uphold the decision where that error is
harmless,’ meaning that ‘it is inconsequential to the ultimate nondisability determination,’ or
that, despite the legal error, ‘the agency’s path may reasonably be discerned, even if the agency
explains its decision with less than ideal clarity.’” Id. (quoting Treichler, 775 F.3d at 1098); see
also Smith v. Kijakazi, 14 F.4th 1108, 1111 (9th Cir. 2021) (“And even where this modest
[substantial evidence] burden is not met, [courts] will not reverse an [agency] decision where the
error was harmless.” (citing Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012), superseded
on other grounds by regulation as recognized in Farlow v. Kijakazi, 53 F.4th 485, 487 (9th Cir.
2022))).
BACKGROUND2
Plaintiff was born in August 1951, making him sixty-four years old on September 26,
2015, his alleged disability onset date and the day after an Administrative Law Judge denied his

first DIB application.3 (Tr. 9); Kevin M., 2022 WL 17690153, at *1-2; Admin. R. at 26, 65-71 &
Pl.’s Opening Br. Attach. 1 at 1-4, Kevin M. v. Comm’r Soc. Sec. Admin., No. 3:21-cv-00113-
MK (D. Or. filed Dec. 14, 2021 & Feb. 14, 2022), ECF Nos. 23-1, 25-1. Plaintiff has at least a
high school education and past work experience as a publishing director, account/sales manager,

2 For clarity and context, the Court briefly recites these undisputed facts at the outset:
(1) Plaintiff filed DIB applications in 2013 and 2017 but only appealed the Commissioner’s final
decisions regarding his 2017 application, (2) the clerk assigned the first of Plaintiff’s two appeals
to this Court, and (3) in June 2023, the Appeals Council issued a decision addressing both of
Plaintiff’s remanded appeals from this district. (See Suppl. Certified Admin. R. (“Tr.”) 1, 8-10,
ECF No. 14-2 at 3, 10-12, attaching the combined decision; Def.’s Reply Supp. Mot. J. (“Def.’s
Reply”) at 2-3, ECF No. 20, stating that Plaintiff did not appeal the denial of his 2013 application
and only the 2017 application is “at issue in the instant case”; Pl.’s Resp. Def.’s Mot. J. (“Pl.’s
Resp.”) at 1-4, ECF No. 19, conceding that Plaintiff filed his first application “[i]n 2013”); cf.
Kevin M. v. Comm’r of Soc. Sec. Admin., No. 3:21-cv-00113-MK, 2022 WL 17690153, at *1-5
(D. Or. Dec. 15, 2022) (remanding Plaintiff’s second appeal, noting that the parties’ papers and
record confirmed that Plaintiff “filed his first application for DIB in May 2013,” the Appeals
Council denied Plaintiff’s request to review the denial of his 2013 application on June 8, 2017,
and Plaintiff “filed a second application for DIB on July 14, 2017,” and rejecting Plaintiff’s
counsel’s argument that the Commissioner “constructively reopen[ed] the prior May 2013
application”). Given this posture, the Court necessarily relies in part on the district court’s
decision in Kevin M., including its description of the underlying (and undisputed) facts and
procedural history.
3 “[T]o be eligible for DIB, a claimant must prove continuous disability that began on or
before the date last insured[.]” Hasji v. Kijakazi, No. 21-15319, 2023 WL 6458648, at *1 (9th
Cir. Oct. 4, 2023) (first citing 42 U.S.C. § 423(a)(1)(A), (c)(1); then citing 20 C.F.R. § 404.131;
and then citing Flaten v. Sec’y of Health & Hum. Servs., 44 F.3d 1453, 1459 (9th Cir. 1995)); see
also Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per curiam) (noting that “only disabilities
existing before [the] date last insured establish entitlement to [DIB]” (citing Vincent v. Heckler,
739 F.2d 1393, 1394 (9th Cir. 1984) (per curiam))). As a result, Plaintiff needed to (and did)
prove continuous disability that began on before June 30, 2017, his date last insured (“DLI”).
(Tr. 8-10.)
and business consultant. Kevin M., 2022 WL 17690153, at *2. In his current DIB application,
Plaintiff alleged disability due primarily to a neurocognitive disorder, depression, bilateral knee
disorder, history of cerebrovascular accident (stroke), and congestive heart failure. (Tr. 9.)
The Commissioner denied Plaintiff’s DIB application initially and upon reconsideration,

and on February 7, 2018, Plaintiff requested a hearing before an Administrative Law Judge
(“ALJ”). (Admin. R., supra page 3, at 31.) On April 10, 2019, Plaintiff and an impartial
vocational expert (“VE”) appeared and testified at an administrative hearing held before an ALJ.
Id. Plaintiff’s counsel also attended the hearing. Id. On May 1, 2019, the ALJ issued a written
decision finding that Plaintiff had “been under a disability as defined in the Social Security Act
since September 26, 2015, the alleged onset date of disability[.]”4 Id. at 34-35 (bold typeface
omitted).
On August 9, 2019, Plaintiff’s counsel requested the Appeals Council’s review of the
ALJ’s decision. See id. at 22, 65-71 (acknowledging the agency’s receipt of the “request for
review filed on August 9, 2019”). In an Order dated September 19, 2019, the Appeals Council

dismissed Plaintiff’s request for review on the ground that Plaintiff did not file it within the
applicable sixty-day deadline but failed to address the explanation that Plaintiff’s counsel

4 The ALJ referred to July 14, 2017 as Plaintiff’s protective filing date. (Admin. R., supra
page 3, at 31, 35.) “[T]he payability of benefits under Title II . . . is measured by the protective
filing date.” Kevin M., 2022 WL 17690153, at *2. That is significant because (1) although
Plaintiff never appealed the Commissioner’s final decision denying his first DIB application,
Plaintiff filed his “new [and current] application for [DIB]” on July 14, 2017, “less than six
months” after the Appeals Council issued its June 8, 2017 notice denying Plaintiff’s first
application and declining to consider and exhibit additional evidence that he submitted with his
September 25, 2015 request for review, and (2) “[i]f a new application is filed within [six]
months of the Appeals Council’s notice denying the submission of additional evidence, the
Appeals Council will use the date that [the] claimant requested Appeals Council review as the
filing date for the new application.” Kevin M., 2022 WL 17690153, at *1-2 (citing, inter alia, 20
C.F.R. § 404.970(c)); Pl.’s Opening Br. Attach. 1, supra page 3, at 1-2 (attaching the Appeals
Council’s June 8, 2017 notice).
provided as to why there was good cause to excuse Plaintiff’s untimely filing. (Compare id. at
22, and id. at 65, 69; see also Tr. 8; Def.’s Mot. Remand at 2, ECF No. 9); Kevin M., 2022 WL
17690153, at *1.
The Appeal Council’s dismissal of Plaintiff’s request for review made the ALJ’s decision

the final decision of the Commissioner for judicial review. See Kavandi v. Kijakazi, No. 20-
55740, 2021 WL 6101351, at *1 (9th Cir. Dec. 21, 2021) (“[A]n Appeals Council dismissal as
untimely of a request for review, after a claimant has received an ALJ hearing on the merits, is a
final decision for purposes of 42 U.S.C. § 405(g)[.]” (citing Smith v. Berryhill, 587 U.S. 471, 489
(2019))); see also Reimer v. O’Malley, No. 23-2620, 2024 WL 4988374, at *1 (9th Cir. Dec. 5,
2024) (noting that the Appeals Council “declined” the claimant’s “request for an administrative
review,” which “ma[de] the ALJ’s decision the final decision of the Commissioner for judicial
review”).
Two months later, on November 19, 2019, Plaintiff, now proceeding in forma pauperis
(“IFP”) and as a self-represented litigant, filed this appeal challenging the Commissioner’s

favorable decision on his DIB application. (Compl. at 1, 3, ECF No. 2; IFP Appl. at 1-4, ECF
No. 1; ECF No. 4.) The Commissioner received service of process on December 16, 2019,5 and
needed to file an answer by April 14, 2020. (ECF No. 6.) Instead of answering on April 14, 2020,
the Commissioner moved for a “sentence six” remand under 42 U.S.C. § 405(g).6 (Def.’s Mot.
Remand at 1-5.)

5 On January 10, 2020, the parties consented to the jurisdiction of a magistrate judge
under 28 U.S.C. § 636(c). (ECF No. 7.)
6 “[A] remand under sentence six can be ordered only in two particular instances: ‘where
the Commissioner requests a remand before answering the complaint, or where new, material
evidence is adduced that was for good cause not presented before the agency.’” Hoa Hong Van v.
Barnhart, 483 F.3d 600, 605 (9th Cir. 2007) (quoting Akopyan v. Barnhart, 296 F.3d 852, 854
(9th Cir. 2002)); see also 42 U.S.C. § 405(g) (noting in the provision’s sixth sentence that a court
In support of remand, the Commissioner’s counsel explained that the Appeals Council
informed her that it “found no record that it requested an explanation from Plaintiff for his
untimely filing” of his request for review, and in turn failed to follow HALLEX and deprived
Plaintiff of an opportunity to demonstrate good cause to excuse his untimely filing and reach the

merits.7 (Def.’s Mot. Remand at 2.) The Commissioner’s counsel also quoted relevant parts of
HALLEX I-3-4-2 and relied on an oft-cited portion of a House Report accompanying Congress’s
1980 amendment to sentence six of § 405(g). (Id. at 2-3, first quoting HALLEX I-3-4-2B.-C.;

“may, on motion of the Commissioner . . . made for good cause shown before the Commissioner
files the Commissioner’s answer, remand the case to the Commissioner . . . for further action by
the Commissioner,” and “may at any time order additional evidence to be taken before the
Commissioner . . . , 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”).
7 The acronym “HALLEX” refers to the “Commissioner’s Hearings, Appeals and
Litigation Law Manual.” Roberts v. Comm’r Soc. Sec. Admin., 644 F.3d 931, 933 (9th Cir. 2011)
(per curiam). HALLEX is an internal policy manual that “does not impose judicially enforceable
duties on either the ALJ or [a federal] court.” Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d
1068, 1072 (9th Cir. 2010) (citing Clark v. Astrue, 529 F.3d 1211, 1216 (9th Cir. 2008)); see also
Roberts, 644 F.3d at 933 (stating that this circuit does not “review allegations of non-compliance
with [HALLEX],” as it “does not carry the force of law and [is] not binding upon the agency”)
(simplified); McGowan v. Saul, 833 F. App’x 138, 138 (9th Cir. 2021) (rejecting an argument
“because the ALJ’s noncompliance with HALLEX is not legally enforceable”) (citation omitted).
HALLEX’s provisions, however, are entitled to “respect” to the extent that they have the “power
to persuade,” and intended to guide the agency’s decision-making and inform the public about
benefit procedures and requirements. See Bowie v. Comm’r of Soc. Sec., 539 F.3d 395, 399 (6th
Cir. 2008) (“While not binding on this court, [HALLEX’s] procedural guidance to the staff and
adjudicators . . . bolsters this interpretation.”); Lockwood, 616 F.3d at 1072-73 (stating that the
Lockwood holding was consistent with the “holding in Bowie” and “agency interpretations” like
HALLEX “are entitled to respect . . . to the extent that those interpretations have the power to
persuade,” and rejecting the claimant’s reliance on a different agency manual/interpretation, in
part because it was “inconsistent with the guidance in HALLEX”); Marasco & Nesselbush, LLP
v. Collins, 6 F.4th 150, 157 & n.1 (1st Cir. 2021) (noting that HALLEX “contain[s] numerous
provisions that guide the agency’s decision-making while also informing the public of the
requirements and procedures for seeking benefits,” as well as an “introductory section” stating,
among other things, that it “defines procedures for carrying out policy and provides guidance for
processing and adjudicating claims at the hearing, Appeals Council, and civil action levels”)
(simplified).
and then citing H.R. Conf. Rep. No. 96-944, at 59 (1980), reprinted in 1980 U.S.C.C.A.N. 1277,
1407, as recognized in Evangelista v. Sec’y of Health & Hum. Servs., 826 F.2d 136, 141 (1st Cir.
1987)).
HALLEX I-3-4-2 provides, in relevant part, that (1) “[w]hen an explanation for an

untimely filing is not in the file, . . . [agency] staff will prepare a letter to the claimant and
representative, if any, requesting an explanation for untimely filing,” and (2) the Appeals
Council “will consider the [claimant’s] case on its merits” if it “finds that the claimant
established a good cause reason for an untimely filing,” make a pre-dismissal order notation in
its system if “the claimant or representative did not respond to the request for an explanation,”
or, alternatively, record its “reasons” for finding that “the claimant did not establish good cause
for an untimely filing[.]” HALLEX I-3-4-2, https://www.ssa.gov/OP_Home/hallex/I-03/I-3-4-
2.html [https://perma.cc/BMG2-6Q4L]; see also Craven v. Kijakazi, No. 19-1802, 2021 WL
5918557, at *2 n.1 (7th Cir. Dec. 15, 2021) (citing the homepage “available at
http://www.ssa.gov/OP_Home/hallex/hallex.html”) (simplified).

The portion of the legislative history that the Commissioner cited provides examples of
“good cause” justifying sentence six remands. See, e.g., Hills v. Comm’r of Soc. Sec., No. 2:24-
1207, 2024 WL 4690979, at *2 (W.D. Wash. Nov. 6, 2024) (noting that “[t]he Commissioner,
like many district courts when ruling on similar motions, cite[d] House Conference Report No.
96-944, which provides examples of ‘good cause’ within this [sentence six remand] context”)
(simplified). Relying on this legislative history, courts have found “good cause” for granting
sentence six remands in a variety of situations, including “where a file is incomplete because the
[agency] has ‘lost’ or ‘cannot locate’ case materials[.]” Id. at *2 (citations omitted). Similarly,
the district court in Hills found good cause for granting a sentence six remand where the Appeals
Council “fail[ed] to initiate” the claimant’s “request for review,” analogizing the “result” of the
Appeals Council’s “failure” to “when a document or recording has been lost: an incomplete file.”
Id.; see also Tucunango v. Sullivan, 810 F. Supp. 103, 108 (S.D.N.Y. 1993) (“As the [House]
Conference Report relied on states, the illustrations of good cause are simply offered as

examples. There is no suggestion that those illustrations described as examples are intended to be
exclusive.”).
On May 4, 2020, Plaintiff filed a response to the Commissioner’s motion for a sentence
six remand. (Pl.’s Resp. Mot. Remand at 1-2, ECF No. 11.) Plaintiff explained that he had “no
objection” and “look[ed] forward” to and would comply with the Appeals Council’s review. (Id.
at 1.)
After the parties briefed the Commissioner’s motion, the Court reviewed the applicable
sentence six standards and authorities upon which the Commissioner relied in the motion, as well
as other relevant case law. See Smith, 587 U.S. at 488-89 (explaining that § 405(g) permits
judicial review of an Appeals Council’s post-hearing untimeliness dismissal of a claimant’s

request for review and there would be “no jurisdictional bar to a court’s reaching the merits,” but
adding that such a procedural dismissal means that “the agency’s final decisionmaker has not had
a chance to address the merits at all” and that “in an ordinary case, a court should restrict its
review to the procedural ground that was the basis for the Appeals Council dismissal and (if
necessary) allow the agency to address any residual substantive questions in the first instance”);
see also Carroll v. Comm’r Soc. Sec. Admin., 453 F. App’x 889, 892-93 (11th Cir. 2011) (per
curiam) (addressing an appeal regarding the district court’s denial of a motion for a sentence six
remand, rejecting the claimant’s reliance on HALLEX, and explaining that the Eleventh Circuit
has “held that an agency’s violation of its own governing rules must result in prejudice before [it]
will remand to the agency for compliance” and that the challenged action “resulted in no
prejudice”).
Recognizing the procedural and prejudicial nature of the Appeals Council’s admitted
failure to “request an explanation from Plaintiff for his untimely [request for review]” (Def.’s

Mot. Remand at 2), the Court issued an Order for Remand on July 20, 2020, granting the
Commissioner’s unopposed motion to remand Plaintiff’s case pursuant to sentence six. (ECF No.
12.) That same day, the Court administratively closed but retained jurisdiction over Plaintiff’s
case pending completion of the proceedings on remand.8 See Akopyan, 296 F.3d at 854
(explaining that “[s]entence six remands do not constitute final judgments” and that “after the
postremand proceedings are completed[] [and] the Commissioner returns to court, the court
enters a final judgment”) (simplified); Flom v. Holly Corp., 276 F. App’x 615, 617 (9th Cir.
2008) (stating that “when a court remands such a case pursuant to ‘sentence six[,]’ [it] retains

8 To that end, the Commissioner correctly noted that if the Court remanded under
sentence six, “[t]his Court will maintain jurisdiction over this case,” Plaintiff could seek further
review by “reinstating this case rather than . . . filing a new [c]omplaint,” and after the
completion of proceedings on remand, “the Commissioner must return to the district court to
file . . . any such additional or modified findings of fact and decision, . . . [and] a transcript of the
additional record and testimony upon which his action in modifying or affirming was based.”
(Def.’s Mot. Remand at 3, citing Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991)); cf. 42 U.S.C.
§ 405(g) (stating that the Commissioner “shall file with the court any such additional and
modified findings of fact and decision, and, in any case in which the Commissioner has not made
a decision fully favorable to the individual, a transcript of the additional record and testimony
upon which the Commissioner’s action in modifying or affirming was based,” “[s]uch additional
or modified findings of fact and decision shall be reviewable only to the extent provided for
review of the original findings of fact and decision,” and “[t]he judgment of the court shall be
final except that it shall be subject to review in the same manner as a judgment in other civil
actions”); see also Jackson v. Chater, 99 F.3d 1086, 1096 (11th Cir. 1996) (addressing a dual
sentence four and six remand and explaining that “[j]urisdiction continues . . . because the
sentence-six part of [a dual] remand requires the parties to return to district court”); Papotto v.
Hartford Life & Accident Ins. Co., 731 F.3d 265, 275 (3d Cir. 2013) (observing that
“administrative closings do not end the proceeding[;] [r]ather, they are a practical tool used by
courts to ‘prune overgrown dockets’ and are ‘particularly useful in circumstances in which a
case, though not dead, [is] likely to remain moribund for an appreciable period of time”)
(simplified).
jurisdiction over the case” (citing Hoa Hong Van, 483 F.3d at 607)); cf. Kris K. v Kijakazi, No.
3:20-cv-00515, 2022 WL 11128045, at *3, *5 (S.D. Cal. Oct. 18, 2022) (remanding the
claimant’s case under sentence six, retaining jurisdiction, and administratively closing the case
“subject to reopening at the request of either party upon the completion of the proceedings on

remand, at which time the Commissioner . . . [was] obligated to file a certified administrative
record”).
Following remand, the Appeals Council sent a Notice of Order to Plaintiff on September
3, 2020, vacating its prior dismissal of his request for review. (Admin. R., supra page 3, at 6-9.)
Also on September 3, 2020, the Appeals Council sent a letter to Plaintiff seeking an explanation
as to why he did not file his request until August 9, 2019, when it was due by July 5, 2019. (Id. at
40-42.)
After receiving Plaintiff’s response letters dated September 9 and September 16, 2020,
the Appeals Council issued an Order on November 19, 2020, rejecting Plaintiff’s counsel’s
arguments as to why there was good cause to excuse Plaintiff’s untimely filing, stating

incorrectly that “no further explanation for the untimely filing of the request for review was
received in response to the letter sent by the [Appeals] Council on September 3, 2020,” and
dismissing Plaintiff’s request for review. See id. at 1-5 (advising that Plaintiff must file a civil
action in sixty days, the sixty-day period “start[ed] from the day after [he] receive[d]” the
Appeals Council’s letter, and the Appeals Council assumes that a claimant receives such a letter
five “days after the date” of issuance).
The next day, November 20, 2020, Plaintiff’s counsel sent a supplemental letter to the
Appeals Council addressing the issue of good cause and attaching a copy of postal tracking
information demonstrating that the Appeals Council’s office received Plaintiff’s September 9
and September 16 letters on September 22, 2020. Id. at 61-63; cf. id. at 1-5 (dismissing
Plaintiff’s request in part because “no further explanation for [his] untimely filing of the request
for review was received in response to the letter sent by the [Appeals] Council on September 3,
2020”).

On January 24, 2021, Plaintiff’s counsel timely filed a second appeal to this federal
district court. See Compl. at 1 & Civ. Cover Sheet at 1, supra page 3, at 1, ECF Nos. 1 & 1-1
(attaching only the last page of a complaint dated January 24, 2020 and failing to identify any
related cases).9 Plaintiff’s counsel subsequently moved for leave to file a complete version of
Plaintiff’s initial complaint and attached a proposed copy alleging that a “United States District
Court” previously remanded Plaintiff’s case to the Appeals Council. See Mot. Am. Compl. at 1
& Proposed Am. Compl. at 1-2, supra page 3, ECF Nos. 3 & 3-1 (failing to include a case
number or address whether the district court remanded the case under sentence four or sentence
six).
On June 25, 2021, after the district court granted Plaintiff leave to amend and ordered

Plaintiff to show cause for failing to amend and prosecute, Plaintiff filed his proposed amended

9 The current version of this district’s Local Rules (“LR”) provide, in relevant part, that
“[i]n the event a case has been remanded by the Court pursuant to sentence six of 42 U.S.C.
§ 405(g), the plaintiff shall file a motion to reopen the case, with a supporting memorandum,
under the case number existing at the time of the remand.” LR 4000-7(b). This district amended
LR 4000-7 on July 1, 2021, by (1) “[i]nsert[ing] [a] new subsection name and number (b) to [the]
existing rule,” and (2) “delet[ing] [the] last sentence of [the previous version of the] rule that
stated, ‘[t]he clerk will not open a new case or assign a different case number, but the action will
proceed before the previously assigned judge and under the case number existing at the time of
the remand.’” Id.; see also D. Or. Case Assignment Plan, Civ. Case Assignments Rule
2.02(B)(3)(b) (last updated Apr. 2, 2024) (“[A]ppeals . . . following previous remand by the
District Court pursuant to sentence six of 42 U.S.C. § 405(g) will be reopened under the prior
case number and assigned to the judge who issued the final order in the initial case. If that judge
is unavailable, a new judge will be randomly assigned by drawing a new deck assignment card
from the [Magistrate Judge] Social Security Deck if the parties fully consented prior to
reopening, or from the [District Judge] Social Security Deck if there was not full consent prior to
reopening.”).
complaint. Minute Orders & Am. Compl. at 1-2, supra page 3, ECF Nos. 8, 12-13. The
Commissioner docketed Plaintiff’s administrative record on December 14, 2021, and the parties
completed their briefing on the merits of Plaintiff’s second appeal on June 3, 2022. (Admin. R. at
1 & Pl.’s Reply Br. at 3, supra page 3, ECF No. 31.) On December 15, 2022, the district court

issued an Opinion and Order reversing the Commissioner’s decision and remanding “pursuant to
sentence four of 42 U.S.C. § 405(g) for further proceedings[.]” Kevin M., 2022 WL 17690153, at
*1-5.
The district court rejected two of Plaintiff’s four arguments (as discussed below) but also
held that the Appeals Council erred in two other respects, including “by failing to provide an
early protective filing date for the July 14, 2017, request.” Id. at *3. In support of this finding, the
district court explained that under “20 C.F.R. § 404.970(c), the Appeals Council was required to
use November 20, 2015, the date Plaintiff requested review of the [ALJ’s] September 25, 2015
decision [on his first application], as the filing date for [his] new application[.]” Id. Relatedly, the
district court also held that the Appeals Council erred by failing to (1) consider Plaintiff’s

September 9 and September 16, 2019 letters explaining that he did not timely request review of
the ALJ’s decision on his new application because of a serious medical illness and limitations,
and (2) find that good cause existed for excusing Plaintiff’s untimely filing. Id. at *4. In so
holding, the district court noted that “circumstances where good cause may exist include, but are
not limited to, serious illness that prevent contact with the [a]gency.” Id. (citing 20 C.F.R.
§ 404.911(b)(1)).
On June 27, 2023, the Appeals Council issued a “fully favorable” post-second remand
decision addressing both the sentence four remand in Kevin M. and this Court’s sentence six
remand in Plaintiff’s first appeal to federal court. (See Tr. 8-10, addressing both district court
case numbers and remand orders) (simplified). In accordance with the district court’s opinion in
Kevin M., the Appeals Council found that Plaintiff demonstrated “good cause for the untimely
filing of the request for review of the [ALJ’s] May 1, 2019 decision” on his second DIB
application and thus “grant[ed] review of the hearing decision.” (Id. at 8.) The Appeals Council

in turn vacated the ALJ’s finding that Plaintiff’s “current claim was filed on July 14, 2017,” and
determined that Plaintiff’s current “claim was protectively filed on November 25, 2015,” the date
on which Plaintiff requested review of the ALJ’s decision regarding his first DIB application.
(Id. at 9.)
Also on June 27, 2023, the Appeals Council mailed Plaintiff’s counsel a notice enclosing
its decision on both of Plaintiff’s cases from this district. (Id. at 1-2.) In its notice, the Appeals
Council explained that its June 27, 2023 decision constituted the Commissioner’s final decision
following Plaintiff’s two remands from this district and that it would “submit a certified updated
administrative record to [this Court], as it pertains to Civil Action Number 3:19-CV-01863[-
SB].” (Id. at 1.)

Over a year later, on August 6, 2024, the Commissioner filed his pending motion for
entry of a final judgment under Rule 58, along with a certified administrative record consisting
of the Appeals Council’s June 27, 2023 decision and notice. (Def.’s Mot. Entry J. (“Def.’s
Mot.”) at 1-2, ECF No. 14; see also ECF No. 14-2 at 1-2, certifying the record and providing an
index on the pages preceding the transcript or “Tr.” pages stamped as 1-12 near the top-right of
each page). Plaintiff, who is once again proceeding as a self-represented litigant, failed timely to
respond to the Commissioner’s motion and received a retroactive extension of time in which to
do so. (ECF No. 18.) After the parties respectively filed their response and reply on September
13 and September 24, 2024, the Court took the Commissioner’s motion under advisement.10
(ECF Nos. 19-21.)
DISCUSSION
The Commissioner argues that because the Appeals Council issued a fully favorable
decision, the Court should enter judgment under Rule 58. (Def.’s Mot. at 1-2.) Plaintiff opposes

the Commissioner’s motion, arguing that contrary to the Appeals Council’s decision on his
current, second-filed application, which alleged (and established) disability beginning on
September 26, 2015, his “disability actually began in a concrete discernible way[] in 2013” and
the proper and “exact start date for [his] request for disability [is his] 2013 filing for disability.”
(Pl.’s Resp. at 3.)
I. APPLICABLE LAW
“Under Rule 58, an order that is dispositive of the proceedings is usually insufficient to
enter judgment.” Kingsbury v. United States, 900 F.3d 1147, 1149 (9th Cir. 2018) (per curiam).
Rather, “judgment must be expressly entered in a ‘separate document’ except when the district
court decides certain listed motions—which do not include [sentence six remand] motions.” Id.

(addressing motions under 28 U.S.C. § 2255 (quoting FED. R. CIV. P. 58(a), (c)(2)(A)). In
situations where “a separate document is required, and one is not filed, judgment is entered
automatically 150 days after the court enters an order disposing of a case.” Id. (citing FED. R.
CIV. P. 58(c)(2)(B)); see also Baez v. Comm’r of Soc. Sec., 760 F. App’x 851, 853-54 (11th Cir.
2019) (“[J]udgment is entered when the district court enters what it intends to be its final order

10 Resolution of the parties’ arguments turns on the facts and procedural history described
above and does not require a detailed description of the ALJ’s decision applying “the Social
Security Act’s five-step procedure for determining disability,” or related standards. See Brown-
Hunter, 806 F.3d at 490 (describing this familiar five-step sequential procedure (citing 20 C.F.R.
§ 416.920(a)(4))).
on the docket and 150 days pass, irrespective of whether there is a separate document labeled as
a judgment.”).
II. ANALYSIS
The Court finds that the events following its July 2020 sentence six remand demonstrate
that the requirements for terminating the remand were satisfied when the parties completed the

post-remand proceedings in accordance with the Court’s remand order and the district court in
Kevin M. entered its sentence four remand order and judgment in December 2022. Thus, the
Court finds that entry of final judgment is not warranted here and denies the Commissioner’s
motion.
A. Circuit Precedent
The Ninth Circuit’s decision in Akopyan provides useful guidance regarding the unique
procedural posture of this case. In Akopyan, the claimant filed an appeal in federal district court
seeking review of the ALJ’s denial of his application for supplemental security income (“SSI”).
296 F.3d at 855. The district court later “entered an order and judgment adopting a report and
recommendation of a magistrate judge and remanding the case for further administrative

proceedings (the ‘1994 remand’) . . . pursuant to the sixth sentence of 42 U.S.C. § 405(g).” Id.
Following the completion of further administrative proceedings and an ALJ’s issuance of a
second adverse decision, the claimant once again sought review in federal district court. Id.
Similar to the situation presented here, the claimant prevailed on his second appeal and the
district court remanded for further proceedings pursuant to sentence four. Id. After the second
federal court remand, the ALJ determined that the claimant was disabled and entitled to benefits.
Id.
Nearly one year later, the claimant returned to federal court and filed a motion for
attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). Id. Shortly
thereafter, the district court entered the parties’ proposed form of judgment, which stated that the
Commissioner’s decision “awarding [the claimant] benefits was final following a ‘sentence [six]
remand herein entered [long before the 1998 sentence four remand],’ because an [ALJ] . . . had
issued his decision and the appeals period had expired.” Id. After the Commissioner opposed the

claimant’s motion for EAJA fees on the ground that it was untimely, the district court issued
(1) an order denying the claimant’s motion for EAJA fees and agreeing that it was time-barred,
and (2) an amended and “superseding” judgment “deleting its previous reference to the ‘sentence
six remand,’” and finding that the parties’ proposed (and adopted) judgment “erroneously stated
that judgment was being entered following the 1994 sentence six remand, when in fact that
Commissioner had awarded [the claimant] benefits following the 1998 sentence four remand.”
Id.
On appeal, the Ninth Circuit addressed whether a district court’s sentence four remand
order “can operate to terminate a previous remand order issued pursuant to the sixth sentence of
[42 U.S.C. § 405(g)], thus constituting a final judgment for purposes of determining the

timeliness of an attorneys’ fees petition brought pursuant to the [EAJA.]” Id. at 853, 855. The
Ninth Circuit “conclude[d] that it can,” and affirmed. Id. at 853. In affirming the district court’s
decision, the Ninth Circuit observed that (1) “[a] sentence four remand becomes a final
judgment, for purposes of attorneys’ fees claims brought pursuant to the EAJA, . . . upon
expiration of the time for appeal,” (2) “[u]nlike sentence four remands, sentence six remands do
not constitute final judgments[;] [r]ather, ‘[i]n sentence six cases, the [EAJA] filing period does
not begin until after the postremand proceedings are completed, the Commissioner returns to
[federal] court, the [district] court enters a final judgment, and the appeal period runs,” and
(3) under EAJA, a party “shall, within thirty days of final judgment in the action, submit to the
court an application for fees . . . which shows that the party is a prevailing party and is eligible to
receive an award under [the EAJA].” Id. at 854-56 (first citing Shahala v. Schaefer, 509 U.S.
292, 297, 302 (1993); then quoting Melkonyan, 501 U.S. at 102; and then quoting 28 U.S.C.
§ 2412(d)(1)(B)).

With these principles in mind, the Ninth Circuit turned to the “dispositive issue” on
appeal: “[W]hether the events following the 1994 [sentence six] remand demonstrate[d] that the
requirements for terminating a sentence six remand had been met when the district court entered
its 1998 remand [under sentence four].” Id. at 856. In explaining why “[a] review of the record
confirm[ed] they had,” the Ninth Circuit focused on the parties’ completion of the post-sentence
six remand proceedings and district court’s subsequent entry of a sentence four remand, which
constitutes a final judgment:
The parties dispute which date constitutes the final judgment in the action. [The
claimant] argues that pursuant to the 1994 sentence six remand, the judgment was
not final until he obtained the February 12, 2001 judgment from the district court
after having secured a favorable decision from an ALJ. The Commissioner
contends that the 1994 sentence six remand was completed no later than when the
parties returned to the district court in 1998 following the second ALJ’s
determination that [the claimant] was not disabled, and that the sentence four
1998 remand constitutes a final judgment in this case for purposes of fees
attributable to prior proceedings.
. . . The dispositive issue is whether the events following the 1994 remand
demonstrate that the requirements for terminating a sentence six remand had been
met when the district court entered its 1998 remand. A review of the record
confirms that they had.
Following the 1994 remand, the ALJ newly assigned to the case allowed
the administrative record to be expanded in accordance with the district court’s
remand order, and made a determination based on the complete administrative
record before him that [the claimant] was not disabled. [The claimant] again
appealed, filing a motion for summary judgment in district court. Notably, in this
motion, [the claimant] . . . did not allege that a remand was again required to
develop a full and fair record. On May 6, 1998[,] the parties appeared before a
magistrate judge for the purpose of arguing their cross-motions for summary
judgment. After the hearing, the parties agreed that the matter should be remanded
to the Commissioner . . . for a new determination on the merits of [the claimant’s]
claims. The district court signed the 1998 remand judgment pursuant to the
stipulation of counsel, which stated[, among other things,] that the action would
be remanded to the Commissioner pursuant to [s]entence [four] of 42 U.S.C.
§ 405(g) for a new determination of the merits of [the claimant’s] application for
benefits. . . .
At this point, the earlier sentence six remand was terminated. The sentence
six post-remand proceedings had been completed in accordance with the district
court’s 1994 remand order, the Commissioner had returned to court, and the court
had entered a sentence four remand, which constitutes a final judgment.
Melkonyan, 501 U.S. at 102. . . . Because this sentence four remand was a final
judgment in the case, the time frame for [the claimant] to file his petition for
attorneys’ fees began to run upon expiration of the [sixty] day appeal period. See
Schaefer, 509 U.S. at 302 (citing FED. R. APP. P. 4(a)). Allowing for this appeal
period, [the claimant’s] motion for attorneys’ fees was required to be filed no later
than September 2, 1998.
. . . .
Assuming without deciding that this [circuit] would adopt [the] reasoning
[of the sister circuit decision upon which the claimant relies], [it] does not compel
the result that [the claimant] urges. Because of the simultaneous nature of the dual
basis [sentence four and six] remand[] in [the sister circuit case,] the sentence six
remand proceedings were not and could not have been completed at the time
when the sentence four remand was issued. Therefore[,] the sentence four remand
order [in that case] could not have served as the final judgment entered after “the
postremand proceedings are completed [and] the [Commissioner] returns to
court.” Melkonyan, 501 U.S. at 102. In contrast, [the claimant here] completed the
sentence six remand proceedings, returned to district court, and obtained a
sentence four remand judgment in his favor. Accordingly, [the sister circuit case]
is factually distinguishable and does not materially support a determination that
the [district court’s] 1994 [sentence six] remand was not terminated by the 1998
[sentence four] remand [for a new determination on the merits of the claimant’s
application].
Finally, [the claimant] argues that the equities [do not] favor a
determination that the 1998 remand order[, as opposed to the February 2001
judgment,] operated as a final judgment, because the parties stipulated in [the
1998 remand order] that “[t]his remand shall not prejudice plaintiff’s counsel’s
future application for EAJA fees, if any.” However, the stipulated language
continues “nor shall it preclude the Commissioner from opposing any such
application on the basis of applicable law.” More importantly, a sentence four
remand is a final judgment divesting the district court of jurisdiction, and the
parties cannot stipulate to jurisdiction. . . .
Id. at 856-58 (simplified); see also Thomas v. Comm’r of Soc. Sec. Admin., 625 F.3d 798, 800
n.1 (3d Cir. 2010) (“Sentence four of § 405(g) authorizes a court to enter judgment affirming,
modifying or reversing the Commissioner’s decision with or without remanding the cause for
rehearing. This becomes the final judgment of the court and terminates the civil action, thereby

divesting the court of jurisdiction over the action.” (citing Schaefer, 509 U.S. at 299)); Garland
v. Astrue, 492 F. Supp. 2d 216, 219 (E.D.N.Y. 2007) (“A sentence-four judgment is a final
judgment that divests the court of jurisdiction.” (citing Schaefer, 509 U.S. at 299-302)); Hoa
Hung Van, 483 F.3d at 607 (“Although he timing of [an EAJA] fee application following a
sentence-six remand differs from that of [an EAJA] fee application following a sentence-four
remand, it does so primarily because the former may only be filed after the completion of the
post-remand proceedings and a return to the district court to enter a judgment. Once the requisite
judgment is entered, however, the timing is identical in both types of cases, in that in both the
claimant must file within [thirty] days after the appeal period provided for in [FED. R. APP. P.]
4(a) has run”).

B. Disposition
Consistent with Akopyan, the Court finds that the events following its July 2020 sentence
six remand demonstrate the requirements for terminating such a remand were satisfied when the
parties completed the post-remand proceedings in accordance with the Court’s remand order and
the district court in Kevin M. entered its sentence four remand order and judgment in December
2022.
The Court first addresses whether the parties completed the post-sentence six remand
proceedings in accordance with the Court’s July 2020 remand order granting the Commissioner’s
unopposed motion. See Akopyan, 296 F.3d at 856-57 (same approach). The Court finds that the
parties did so.
In seeking a sentence six remand, the Commissioner’s counsel explained that the Appeals
Council informed her that it “found no record that it requested an explanation from Plaintiff for
his untimely filing” of his request for review, and in turn failed to follow HALLEX and deprived
Plaintiff of an opportunity to demonstrate good cause to excuse his untimely filing and reach the

merits of his request for review. (Def.’s Mot. Remand at 2.) Plaintiff responded that he had “no
objection” to the Commissioner’s motion to remand to resolve this residual issue and “look[ed]
forward” to and would comply with the Appeals Council’s remaining review. (Pl.’s Resp. Mot.
Remand at 1.)
Following remand, the Appeals Council sent Plaintiff a Notice of Order on September 3,
2020, vacating it prior dismissal of Plaintiff’s request for review. (Admin. R., supra page 3, at 6-
9.) Also on September 4, 2020, the Appeals Council sent Plaintiff a letter seeking his explanation
as to why he failed timely to file his request. (Id. at 40-42.) Plaintiff responded by mailing his
September 9 and September 16, 2020 letters to the Appeals Council explaining why there was
good cause for excusing his untimely filing. (Id. at 61-63.) The Appeals Council later rejected

only Plaintiff’s counsel’s good cause arguments because it failed to recognize that it received the
two letters from Plaintiff. (See id. at 1-5, reflecting that in its post-remand Order dated November
19, 2020, the Appeals Council rejected substantive arguments that Plaintiff’s counsel previously
raised but added that “no further explanation for [Plaintiff’s] untimely filing of the request for
review was received in response to the letter sent by the [Appeals] Council on September 3,
2020”).
Although the Appeals Council overlooked Plaintiff’s September 2020 letters and
addressed only Plaintiff’s counsel’s previous arguments, the parties completed the post-sentence
six remand proceedings in accordance with the Court’s Order granting the Commissioner’s
unopposed motion to remand. To be sure, the Appeals Council sought, obtained, and made a
record regarding Plaintiff’s (and Plaintiff’s counsel’s) explanations as to why good cause existed
for excusing Plaintiff’s failure timely to request review of the ALJ’s decision. Thus, and most
importantly, the Appeals Council had a chance to find good cause, address in the first instance

the merits of Plaintiff’s request for review, and remedy any prejudice resulting from its actions.
See Smith, 587 U.S. at 488-89 (stating that § 405(g) permits judicial review of an Appeals
Council’s post-hearing untimeliness dismissal of a claimant’s request for review and there would
be “no jurisdictional bar to a court’s reaching the merits,” but adding that such a procedural
dismissal means that “the agency’s final decisionmaker has not had a chance to address the
merits at all” and “in an ordinary case, a court should restrict its review to the procedural ground
that was the basis for the Appeals Council dismissal and (if necessary) allow the agency to
address any residual substantive questions in the first instance”); see also Carroll, 453 F. App’x
at 892-93 (addressing a claimant’s appeal from a district court’s denial of a motion for a sentence
six remand, rejecting the claimant’s reliance on HALLEX, and explaining that the Eleventh

Circuit has “held that an agency’s violation of its own governing rules must result in prejudice
before [it] will remand to the agency for compliance” and the challenged action “resulted in no
prejudice”).
Nothing more was required to complete the post-remand proceedings in accordance with
the Court’s remand order. The Court’s remand order was intended to ensure that it did not run
astray of fundamental principles of administrative law, Plaintiff did not suffer prejudice as result
of an inadvertent procedural oversight, and there would be a record to review regarding a
procedural ground that may (and did) serve as the basis of a subsequent dismissal of Plaintiff’s
request for review. See Smith, 587 U.S. at 488 (“Fundamental principles of administrative
law . . . teach that a federal court generally goes astray if it decides a question that has been
delegated to an agency if that agency has not first had a chance to address the question.” (citing
INS v. Orlando Ventura, 537 U.S. 12, 16, 18 (2002) (per curiam))); Curlee v. O’Malley, No. 22-
15655, 2024 WL 2103275 at *1 (9th Cir. May 10, 2024) (stating that a court “review[s] the

agency’s decision for an ‘abuse of discretion as to the overall conclusion, and substantial
evidence as to any fact,’” finding “no abuse of discretion in the ALJ’s dismissal of [the
claimant’s] request for a hearing,” that “[s]ubstantial evidence support[ed] the ALJ’s finding that
good cause did not excuse [the claimant’s] failure to appear, and [that the claimant] failed to
respond to the ALJ’s request to show cause,” and declining to reach an argument because “[a]
court should restrict its review to the procedural ground that was the basis for the Appeals
Council dismissal” (quoting Smith, 587 U.S. at 487-88)).
After completing the post-remand proceedings in accordance Court’s remand order, the
parties, both of whom had the benefit of legal representation, returned to this federal court on
January 24, 2021. See Compl. at 1 & Civ. Cover Sheet at 1, supra page 3, ECF Nos. 1 & 1-1. In

this second appeal, neither Plaintiff’s counsel nor the Commissioner alleged that a remand was
necessary because the Appeals Council failed to seek an explanation from Plaintiff for failing
timely to request review. Cf. Akopyan, 296 F.3d at 856 (“[The claimant [subsequently] appealed,
filing a motion for summary judgment in district court. Notably, in th[e] [claimant’s]
motion, . . . [the claimant] did not allege that a remand was again required to develop a full and
fair record.”); Kevin M., 2022 WL 17690153, at *4 (finding that there was a record of an “abuse
of discretion”).
///
///
Additionally, neither Plaintiff’s counsel nor the Commissioner attempted to reopen
Plaintiff’s first-filed case, which the Court administratively closed on July 20, 2020. (ECF Nos.
12-13).
After doing so, Plaintiff’s counsel obtained a favorable opinion and final judgment on

December 15, 2022, remanding Plaintiff’s case pursuant to sentence four. See Kevin M., 2022
WL 17690153, at *5 (reflecting that in its Opinion and Order dated December 5, 2022, the
magistrate judge reversed the Commissioner’s decision and remanded Plaintiff’s case “pursuant
to sentence four”); cf. Akopyan, 296 F.3d at 857 (explaining that the claimant “completed the
sentence six remand proceedings, returned to district court, and obtained a sentence four remand
judgment in his favor,” which “constitute[d] a final judgment” and meant that “the requirements
for terminating [the previous] sentence six remand had been met” (citing Melkonyan, 501 U.S. at
102)). Plaintiff then obtained a fully favorable decision on remand, as the magistrate judge’s
decision in Kevin M. required. (See Tr. at 8-10, finding good cause and a correct protective filing
date).

On August 6, 2024, over a year after the magistrate judge’s sentence four remand in
Kevin M., and the Appeals Council’s fully favorable decision, the Commissioner returned to this
administratively closed case and sought entry of judgment. In response, Plaintiff (who is once
again proceeding as a self-represented litigant before this Court), seeks to relitigate issues that
the magistrate judge rejected in Kevin M.11 Specifically, Plaintiff argues that contrary to the

11 Plaintiff never filed an appeal (let alone a timely appeal) of the Appeals Council’s June
27, 2023 decision. See generally Haseeb v. Berryhill, 691 F. App’x 391, 392-93 (9th Cir. 2017)
(affirming the district court’s dismissal of the claimant’s “untimely” appeal to federal court and
explaining that the claimant’s “complaint was late because it was filed more than sixty-five days
after the Appeals Council’s decision” (first citing 42 U.S.C. § 405(g); and then citing 20 C.F.R.
§ 422.210(c))). Further, the law of the case doctrine alone (and at a minimum) prevents Plaintiff
from relitigating issues that the magistrate judge in Kevin M. decided against him. See generally
Appeals Council’s fully favorable decision, his “disability actually began in a concrete
discernable way[] in 2013” (the year he filed his first application, the denial of which he never
appealed), and the “exact start date for [his] request for disability [is his] 2013 filing for
disability.” (Pl.’s Resp. at 3.) Plaintiff’s counsel previously presented related arguments in Kevin

M., and the court rejected them:
Federal courts generally do not have jurisdiction to review refusals to
reopen claims for disability benefits. Califano v. Sanders, 430 U.S. 99, 107-09
(1977). An exception exists “where [the Commissioner’s] denial of a petition to
reopen is challenged on [c]onstitutional grounds.” Id. at 109. This exception
applies to any colorable constitutional claim of due process violation that
implicates a due process right to a meaningful opportunity to be heard. Evans v.
Chater, 110 F.3d 1480, 1483 (9th Cir. 1997). A challenge that is not wholly
insubstantial, immaterial, or frivolous raises a colorable constitutional claim.
Boettcher v. Sec’y of Health & Hum. Servs., 759 F.2d 719, 722 (9th Cir. 1985).
A determination or decision may be reopened within twelve months of the
date of the notice of the initial determination, for any reason, or within four years
of the date of the notice of the initial determination if good cause is found. 20
C.F.R. § 404.988(a), (b). Good cause to reopen exists if new and material
evidence is furnished. 20 C.F.R. § 404.989.

Hammond v. Berryhill, 688 F. App’x 486, 487 (9th Cir. 2017) (“In the proceedings before this
appeal, the district court correctly barred [the claimant] from re-asserting any argument that the
district court had expressly rejected in its 2009 decision. Stated another way, the district court
did not let [the claimant] relitigate issues previously decided against him. The district court
relied, however, on the wrong doctrine. The district court rested its decision on the doctrine of
issue preclusion, agreeing with the Commissioner’s contention that [the claimant’s] arguments
were barred under res judicata. Because the 2009 district court’s decision did not amount to a
final adjudication of the rights of the parties in this case, however, and because the district
court’s 2011 decision amounts to a continuation of the ‘same litigation,’ the more applicable
doctrine is law of the case. [The claimant] did not appeal the district court’s 2009 decision. As a
result, that court’s previous rejection of his arguments have preclusive effect under law of the
case. We therefore affirm the district court’s preclusion finding, on the alternative ground that
law of the case prevents [the claimant] from challenging any ALJ finding the district court
affirmed in 2009.”). The Court also notes that considering the arguments that Plaintiff presented
in Kevin M. and scope of the DIB application at issue, the magistrate judge’s decision in Kevin
M. appears to have resolved all outstanding and preserved issues pertaining to the parties’ rights,
as the magistrate judge rejected Plaintiff’s arguments described below and found that the
Appeals Council erred in declining to find good cause for excusing Plaintiff’s untimely filing and
must use November 20, 2015 as Plaintiff’s protective filing date. 2022 WL 17690153, at *2-5.
The Appeals Council simply implemented these rulings on remand, and no appeal followed.
A prior disability claim is not deemed to have been reconsidered on the
merits merely because the evidence reviewed by the ALJ included evidence of the
claimant’s condition at the time of the previous application. Girad v. Chater, 918
F. Supp 42, 44 (D.R.I. 1996). If simply reviewing evidence relating to a previous
claim is viewed as a reconsideration on the merits, the previous case would be
constructively reopened every time a successive claim is filed. Id. at 45. Thus, the
mere fact that new evidence is considered does not amount to a constructive
reopening. Id.
Plaintiff argues that the claim should have been treated as protectively
filed on November 20, 2015, the date [that Plaintiff] requested review of the
September 25, 2015[] ALJ decision. If the claim had been protectively filed in
November 2015, then the July 14, 2017[] application would have been within the
four-year reopening period pursuant to 20 C.F.R. § 404.988(b). Plaintiff states
that the ALJ considered evidence dating back to 2014, within the period
adjudicated by the prior ALJ’s decision. As a result, Plaintiff claims that this
submission of evidence back in 2014 constitutes an implicit request to reopen the
prior determination. Plaintiff argues that by not addressing this implicit request
but still considering evidence from an earlier submission, the ALJ constructively
reopened the prior application.
The ALJ did not constructively reopen [Plaintiff’s] prior May 2013 [DIB]
application. Plaintiff never requested a reopening of the application. Instead,
Plaintiff relies on the ALJ’s consideration of previously submitted evidence to
constitute an implicit request. Assuming this constituted an implicit request, the
ALJ did reopen the prior application based on §§ 404.988(b) and 404.989.
However, the court in Girad held that the consideration of previously submitted
evidence alone would not amount to a constructive reopening. Girad, 918 F.
Supp. at 45. This is exactly what Plaintiff is arguing should constitute an implicit
request for a constructive reopening. The Court finds the reasoning provided in
Girard persuasive. As in Girard, this Court concludes that the ALJ did not
constructively reopen [Plaintiff’s] prior May 2013 [DIB] application.
. . . .
[Finally, a] claim can be reopened “[a]t any time” under certain specified
conditions, including . . . [when] it is “fully or partially unfavorable to a party, but
only to correct clerical error or an error that appears on the face of the evidence
that was considered when the determination or decision was made.” 20 C.F.R.
§ 404.988(c)(8).
Plaintiff argues that the August 9, 2019[] request for review constituted a
request to correct the protective filing date, a mistake akin to a clerical error.
Because the statute allows a party to correct a clerical error at any time, Plaintiff
claims that the August 9, 2019[] request would then be timely.
While the Appeals Council did fail to provide a protective filing date for
the 2017 request for review, it is not clerical error. The failure to provide a
protective filing date constitutes more than just a clerical mistake. Thus,
reopening [Plaintiff’s] case under § 404.988(c)(8) would be improper.
2022 WL 17690153, at *3-5 (simplified); see also Nevin v. Colvin, No. 23-35420, --- F.4th ---- ,
2025 WL 259976, at *2 (9th Cir. Jan. 22, 2025) (explaining that “Califano [did] not govern” the
situation presented in that appeal because “Califano applies to judicial review of a denial of an
untimely motion to reopen”); James L. S. v. O’Malley, No. 1:23-cv-01162-SI, 2024 WL
4275694, at *3 (D. Or. Sept. 24, 2024) (addressing a request to reopen a prior DIB application,
and stating that the agency’s internal policies “do not give the district court jurisdiction to review
the SSA’s discretionary decision to reopen, or not reopen, a prior claim” (citing Califano, 430
U.S. at 107-08)). The Court has reviewed and agrees in all respects with the Kevin M. court’s
well-reasoned decision.
For all of these reasons, the Court concludes that because the parties completed post-
sentence six remand proceedings prior to returning to this district and obtaining a “sentence four
remand, which constitutes a final judgment[,]” this Court is now divested of jurisdiction.
Akopyan, 296 F.3d at 857-58 (citing Melkonyan, 501 U.S. at 102); Thomas, 625 F.3d at 800 n.1
(addressing jurisdiction (citing Schaefer, 509 U.S. at 299)); Garland, 492 F. Supp. 2d at 219
(same). In addition, the Court finds that its sentence six remand was terminated, there are no
issues left to litigate, and it is unnecessary to enter judgment in this permanently closed case.
Accordingly, the Court denies the Commissioner’s motion for judgment.12

///
///

12 The Court also finds that any appeal from this Opinion and Order would be “frivolous”
as that term is used in 28 U.S.C. § 1915(e)(2), and thus would not be taken in “good faith” as that
term is used in the statute. See Coppedge v. United States, 369 U.S. 438, 445 (1962).
CONCLUSION
For the reasons stated, the Court DENIES the Commissioner’s motion for judgment (ECF
No. 14), and REVOKES Plaintiff’s in forma pauperis status because an appeal would not be
taken in good faith.
IT IS SO ORDERED.
DATED this 4th day of February, 2025. —7
Si Tate (oecermar
HON. STACIE F. BECKERMAN _
United States Magistrate Judge

PAGE 27 — OPINION AND ORDER

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10793667. Public record. Not legal advice.