Dealy v. Heckler

• Decision Date: 16 October 1984
• Docket Number: No. 83-1269-CV-W-0-5.,83-1269-CV-W-0-5.
• Parties: Lolita B. DEALY, Plaintiff, v. Margaret M. HECKLER, Secretary of the Department of Health and Human Services, Defendant.
• Court: U.S. District Court — Western District of Missouri

616 F. Supp. 880

Lolita B. DEALY, Plaintiff, v. Margaret M. HECKLER, Secretary of the Department of Health and Human Services, Defendant.

No. 83-1269-CV-W-0-5.

United States District Court, W.D. Missouri, W.D.

October 16, 1984.

James Marshall Smith, Kansas City, Mo., for plaintiff.

Judith M. Strong, Asst. U.S. Atty., Kansas City, Mo., William Raffel, Disability Litigation Branch, Baltimore, Md., for defendant.

ORDER

SCOTT O. WRIGHT, Chief Judge.

Plaintiff Lolita Dealy, an unsuccessful Social Security disability applicant, has brought this action seeking relief from an order of the Social Security Administration dismissing her request for a hearing on the basis of res judicata. Proceeding without counsel, the plaintiff filed an application for Social Security benefits on January 11, 1980. This claim was denied by the Secretary, without a hearing, both initially and on reconsideration. On October 26, 1980, the Social Security Administration sent the plaintiff notice of the denial of her request for reconsideration. This notice contained the following language:

If you believe that the reconsideration determination is not correct, you may request a hearing before the Administrative Law Judge of the Bureau of Hearings and Appeals. If you want a hearing, you must request it not later than 60 days from the date you receive this notice. Read the enclosed leaflet BHA-1 for a full explanation of your right to appeal.

If you do not request a hearing within the prescribed time period, you still have the right to file another application at any time.

On the basis of this notice advising her that she could file a new application, the plaintiff decided not to request a hearing and did not seek further review of her initial application.

On October 14, 1982, the plaintiff filed a second application for Social Security benefits, claiming disability due to mental confusion, chronic back pain and cardiovascular and respiratory problems. By notice dated January 30, 1983, the Social Security Administration denied the plaintiff's second claim for disability benefits. On March 12, 1983, the plaintiff requested an administrative hearing and provided the Administration with additional evidence of her medical problems. On May 9, 1983, the Office of Hearings and Appeals dismissed the plaintiff's request for a hearing. The Administrative Law Judge (ALJ) found that the reconsideration denial of October, 1980, was binding, that there were no grounds for reopening the case, and that the doctrine of res judicata required dismissal of the case.

In support of her instant request for judicial relief, the plaintiff contends that the notice she received on October 27, 1983 was misleading and violative of due process, because the notice gave the plaintiff the impression that she did not need to request a hearing on her first application as she could file a second application and receive legitimate review of such an application on the merits. In addition, the plaintiff contends that the doctrine of administrative res judicata should not apply where no hearing is held on the initial determination. The Court is in agreement with the plaintiff, and concludes that a remand for the purposes of a hearing on the merits of plaintiff's application is warranted under each of plaintiff's alternative theories.

I. Factual Background

The plaintiff applied for Social Security disability benefits on January 11, 1980. The plaintiff complained of having "down days" at least twice a week, leg weakness, nerves, poor circulation, back problems and high blood pressure. Her application was denied, and she requested reconsideration of the denial on May 9, 1980. By letter dated October 27, 1980, the plaintiff's request for reconsideration was denied. Ms. Dealy did not seek further review.

On October 14, 1982, the plaintiff filed another application for Social Security disability benefits. She stated that she was prevented from working because of allergies, swelling, colon problems, and bloating. She stated that she had been disabled since November 16, 1980. In a disability report dated October 12, 1982, the plaintiff complained of mental confusion, muscle coordination problems, sinus problems, facial swelling, nasal drainage headaches, inability to concentrate, dizziness, loss of balance, chronic low back pain, extreme gas, chronic hypertension, emotional distress, coughing, ringing in her ears, blurred vision, itching of the eyes, numbness, circulatory problems, irregular heart beat, weakness, back pain, breathing difficulty, and allergy problems. She alleged that her problems first began May 8, 1970. She noted that she had been forced to resign from several jobs because of health problems. The plaintiff last attempted to work from August through November, 1980, but again had to resign due to health reasons.

In the report of October 12, 1982, the plaintiff noted that she was able to do household activities only on a very limited basis, and that some days she was unable to perform any household activities. She had not had any regular recreational activities or social contacts.

In a vocational report dated October 12, 1982, the plaintiff listed her past jobs. These included nurse's aide, food service work, and salesclerk activities. The jobs listed required constant walking or standing, with the exception of the salesclerk job, which allowed one hour per day of sitting.

The plaintiff's claim for disability benefits was denied and she requested reconsideration on November 29, 1982. In the reconsideration request, she noted that her disability onset date should have been June 15, 1978. In a reconsideration disability report dated November 24, 1982, the plaintiff stated that she had been unable to work after her surgery of June 20, 1978. She stated that after being denied Social Security benefits based upon her application of January 11, 1980, she attempted to return to work. She worked from August 27, 1980 through November 16, 1980 when she left her work because of health reasons. The plaintiff described her work in a work activity report dated November 24, 1982. On November 30, 1982, a Social Security reviewer noted that the work activity constituted an "unsuccessful work attempt."

By notice dated January 10, 1983, the Social Security Administration denied the plaintiff's claim for disability benefits. On March 12, 1983, the plaintiff requested an administrative hearing. She provided the Administration with a description of her medical treatment and problems, as well as a list of her medications.

On March 24, 1983, the Office of Hearings and Appeals acknowledged the plaintiff's request for hearing and indicated that she would be notified of the time and place of her hearing. On May 9, 1983, an Administrative Law Judge of the Office of Hearings and Appeals dismissed the plaintiff's request for hearing. The ALJ found that the reconsideration decision dated October, 1980, was binding on the Secretary. The ALJ found no grounds for reopening the case and dismissed the case based upon the doctrine of res judicata.

After receiving the notice of dismissal, the plaintiff requested representation by Legal Aid of Western Missouri. On July 12, 1983, the plaintiff, by counsel, requested review of the ALJ's dismissal. By order dated October 5, 1983, the Appeals Council denied the plaintiff's request for review. The Appeals Council "considered" the statements submitted in connection with the request for review, but concluded that the statements were not relevant to the issue. Plaintiff thereafter sought judicial review in this Court.

II. Opinion

A. Jurisdiction

The plaintiff contends that subject matter jurisdiction lies in this Court pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g); mandamus jurisdiction pursuant to 28 U.S.C. § 1361; and federal question jurisdiction pursuant to 28 U.S.C. § 1331.

(1) 42 U.S.C. § 405(g).

Section 405(g) allows district court review of "final decisions" of the Secretary. The Secretary contends that her decision not to reopen this instant case is not a "final decision," and, therefore, the Court has no jurisdiction to review this action. See Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). In Califano, however, the Supreme Court noted that when constitutional questions are in issue, judicial review pursuant to § 405(g) will be presumed. Id. 97 S.Ct. at 986. Similarly, in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), the Supreme Court held that § 405(g) provides a jurisdictional basis when the claimant's constitutional challenge is collateral to his substantive claim and there is a possibility of irreparable harm. The Eighth Circuit "has followed Eldridge in holding that a federal court has jurisdiction to hear a challenge to a Social Security regulation under § 405(g) as long as the challenge is collateral to the substantive claim and presents a colorable constitutional claim." Jensen v. Schweiker, 709 F.2d 1227, 1229 (8th Cir. 1983). A due process claim, such as the one raised by the plaintiff in this case, is a colorable constitutional claim on a collateral issue and, therefore, this Court has jurisdiction pursuant to § 405(g). See Jensen, supra, 709 F.2d at 1230 (due process claim in connection with Social Security benefits subject to Court's jurisdiction under § 405(g).

(2) Mandamus Jurisdiction under 28 U.S.C. § 1361

In Heckler v. Ringer, 466 U.S. 602, 104 S.Ct. 2013, 2023, 80 L.Ed.2d 622 (1984). The Supreme Court assumed without deciding that 42 U.S.C. § 405(g) "does not foreclose mandamus jurisdiction in all Social Security cases...." Id. The Eighth Circuit has determined that a procedural claim against the Secretary is appropriate for the assertion of mandamus jurisdiction. Mental Health Ass'n of Minnesota v. Heckler, 720 F.2d 965, 971 n. 17 (8th Cir.1983). See also Ellis v. Blum, 643 F.2d 68, 78-82 (2nd Cir.1981) (mandamus jurisdiction to review...