JAMES E. ATTIA,
Plaintiff,
v.
JO ANNE B. BARNHART,
Commissioner of Social Security,
Defendant.
[2004 DSD 2]
United States District Court
District of South Dakota—Central Division
CIV. 02-3037
REPORT AND RECOMMENDATIONS
FOR DISPOSITION OF
SOCIAL SECURITY CASE
James E. Attia, Pierre, SD
PRO SE
Cheryl Schrempp Dupris, U.S. Attorney's Office, Pierre Office, Pierre, SD
Attorney for Defendant.
Filed Jan 21, 2004
Mark A. Moreno, United States Magistrate Judge
[¶1] The above-captioned Social Security case was referred to this Court by the District Court {fn1} pursuant to 28 USC §636(b) for the purpose of conducting any necessary hearings {fn2} and submitting to it proposed findings of fact and recommendations for disposition of the case. After careful review of the record and based on the totality of the circumstances present, the Court does now make and propose the following findings and recommendations in accordance with the District Court’s referral order.
I.
[¶2] Plaintiff, James E. Attia (Attia), filed this action seeking judicial review from a decision rendered by the Commissioner of Social Security (Commissioner), denying his application for disability insurance benefits under Title II, §§216(i) and 223 of the Social Security Act (the Act), 42 USC §§416(i) and 423. After a hearing was held, an administrative law judge (ALJ) determined that Attia did not meet the insured status requirements of the Act and as such, was not entitled to disability benefits. The Appeals Council declined to review the ALJ’s decision, thereby making the same the final decision of the Commissioner. See 20 CFR §404.981.
[¶3] Attia then filed a Complaint on October 21, 2002, pursuant to §205(g) of the Act, 42 USC §405(g). The Commissioner thereafter answered the Complaint and both parties submitted memoranda detailing their respective arguments.
II.
[¶4] On January 14, 1997, Attia made application for retirement insurance benefits under Title II, §202 of the Act, 42 USC §402. Following an initial denial by the state agency and the Social Security Administration (SSA), Attia requested and was given a hearing before an ALJ. About a year and-a-half later, the ALJ rendered a decision denying Attia’s application. In doing so, the ALJ found that Attia did not meet the eligibility requirements to be “fully insured” under the Act and hence, did not qualify for retirement benefits. A review of the July 13, 1998 decision reveals that the ALJ specifically addressed the claims that Attia was not able to earn the requisite quarters of coverage because he did not enter the United States until 1968 and because a job-related injury that occurred in the early 1970's prevented him from working. The ALJ rejected these claims and found that Attia had earned only 8 of the necessary 20 quarters of coverage between 1970 and 1971 during the 40-quarter time frame prior to the quarter in which his alleged disability began and therefore was not fully insured and able to receive retirement benefits.
[¶5] Attia subsequently applied for disability benefits. His application was denied initially and upon reconsideration. On October 16, 2001, he filed a timely request for a hearing. A hearing was eventually held before an ALJ in the spring of the next year, at which Attia testified. After review of Attia’s application and consideration of the evidence of record, the ALJ concluded that Attia’s prior work activity and the number of quarters of coverage he earned from such work had already been adjudicated, and, based on the doctrine of administrative res judicata, see 20 CFR §404.957(c)(1), would not be relitigated. According to the ALJ, because these issues had already been decided in favor of the Commissioner, Attia was barred from using them again as the gravamen for obtaining disability benefits.
[¶6] The Commissioner asserts that relitigation of Attia’s eligibility for disability benefits is precluded by res judicata and that his September 11, 2001 application should be denied on this basis. She also asserts that the 1998 decision made in Attia’s retirement benefit case should not be reopened.
III.
[¶7] The application of res judicata to administrative proceedings was explicitly sanctioned by the United States Supreme Court more than 35 years ago. See United States v. Utah Construction & Mining Co., 384 US 394, 421-22 (1966); see also Astoria Federal Savings & Loan Assoc. v. Solimino, 501 US 104, 107 (1991). In Utah Construction, the Supreme Court observed that:
When an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose.
384 US at 422. Res judicata, however, may only be applied to preclude a subsequent claim for disability benefits when the claimant has filed a previous application based on the “same” issues and when the decision on the earlier application has become final by virtue of administrative or judicial action. §404.957(c)(1). Nevertheless, even if res judicata is applicable, the Commissioner has discretion to reopen a prior disability benefits application for “good cause” within four years of the date of notice of the initial determination. 20 CFR §§404.988(b), 404.989.
[¶8] As a general matter, federal courts do not have jurisdiction to review the Commissioner’s refusal to consider one or more issues on res judicata grounds or to reopen a prior application because the same is not a “final decision” within that meaning of §205(g). Califano v. Sanders, 430 US 99, 107-09 (1977). There are, however, two exceptions to this general rule. Yeazel v. Apfel, 148 F3d 910, 911-13 (8th Cir. 1998). First, where a colorable constitutional challenge has been made, federal courts have jurisdiction to entertain constitutional questions which are unsuited for resolution in the administrative process. Sanders, 430 US at 109; King v. Chater, 90 F3d 323, 325 (8th Cir. 1996). Second, “where a claim has been reconsidered on the merits, it is properly treated as having been reopened as a matter of administrative discretion and is subject to judicial review.” King, 90 F3d at 325 (citing Jelinek v. Heckler, 764 F2d 507, 508 (8th Cir. 1985)). The latter exception is known as “constructive” reopening.
[¶9] Here, the Court is unable to find any colorable constitutional basis that would provide jurisdiction to review the Commissioner’s refusal to reopen the work activity and quarters of coverage issues that were previously adjudicated in Attia’s retirement benefit case. Attia had a full and fair opportunity to litigate these issues in that case, but simply failed to prevail on them. The ALJ’s refusal to reconsider the merits of these claims and grant Attia disability benefits based on them does not rise to the level of a constitutional violation. See Boock v. Shalala, 48 F3d 348, 352-53 (8th Cir. 1995); Bullyan v. Heckler, 787 F2d 417, 419-20 (8th Cir. 1986).
[¶10] Furthermore, the ALJ, in his review of Attia’s application for disability benefit, did not reconsider the merits of the work activity and quarters of coverage issues that had already been decided. See King, 90 F3d at 325; Hudson v. Bowen, 870 F2d 1392, 1394-95 (8th Cir. 1989). Instead, the ALJ explicitly held that the relitigation of Attia’s work activity and quarters of coverage claims was barred by the doctrine of res judicata, in view of the 1998 decision denying him retirement benefits, entitlement to which necessitates meeting the same earning requirements as those mandated for disability benefits. See §§214(a), 223(c)(1)(A) of the Act, 42 USC §§414(a), 423(c)(1)(A) (with the additional requirement in disability benefit cases that the claimant have not less than 20 quarters of coverage during the 40-quarter period which ends with the quarter in which the disability began – a requirement the ALJ specifically addressed 5 1/2 years ago when he denied Attia retirement benefits). Tr. 71, 188-89. This being the case, no constructive reopening occurred so as to confer jurisdiction on the Court.
[¶11] Moreover, Attia is not now entitled to have his retirement benefit case reopened. He has neither demonstrated the requisite “good cause” to reopen the case, which includes furnishing new and material evidence, see 20 CFR §§404.988(b), 404.989(a)(1), nor pointed to any previously considered evidence that clearly shows on its face that the ALJ’s 1998 decision was erroneously made, see §404.989(a)(3).
IV.
[¶12] In any event, assuming, arguendo, that the Court is not jurisdictionally or otherwise foreclosed from reviewing Attia’s disability claims and the merits of his 2001 application, substantial evidence exists in the record to support the Commissioner’s denial of disability benefits dating back to January 1, 1972. See Krogmeier v. Barnhart, 294 F3d 1019, 1022 (8th Cir. 2002) (standard of review); Howard v. Massanari, 255 F3d 577, 580-81 (8th Cir. 2001) (same).
[¶13] The record indicates that Attia did not have the necessary quarters of coverage to be considered fully insured for purposes of entitlement to disability benefits. The fact that he may have been unable to work at some point in time because of a medical condition does not provide an exception to the insured’s status requirements found in §§216(i)(3) and 223(c)(1). Quite simply, if a person is not employed for whatever reason, that person does not acquire quarters of coverage to be eligible for disability benefits under the Act. While such a result may appear to be unfair, it is for Congress, and not the courts, to change.
V.
[¶14] The Commissioner objects to Attia’s attempt to supplement the administrative record. Section 205(g) spells out the authority of a court to remand a Social Security appeal to the Commissioner for further administrative proceedings and what evidence may be considered by the court in the rendition of its judgment:
The court shall have the power to enter, upon the pleadings and transcript of record, a judgment affirming, modifying, or reversing the decision of the Commissioner . . . with or without remanding the cause for a rehearing.
(emphasis added). The court’s role on appeal is a limited one and is confined to reviewing the administrative record to determine whether there is substantial evidence to support the findings of the Commissioner. Ginter v. Sec’y of Dept. of H.E.W., 621 F2d 313, 313-14 (8th Cir. 1980); Simuel v. Apfel, 21 FSupp2d 941, 942 (E.D. Ark. 1988). In reviewing the Commissioner’s decision, the court cannot try the case de novo or consider additional evidence. Id.; see also Williams v. Bowen, 790 F2d 713, 715 (8th Cir. 1986). If the findings of the Commissioner are supported by substantial evidence of record, when considered as a whole, the court must accept the findings. Richardson v. Perales, 402 US 389, 401 (1971); Williams v. Sullivan, 960 F2d 86, 89 (8th Cir. 1992); Bowen, 790 F2d at 715.
[¶15] The Commissioner here objects to Attia being able to supplement the administrative record with the following documents:
A copying receipt dated August 27, 2003;
An arbitrator’s award, dated August 18, 1973;
A Michigan Worker’s Compensation Appeal Board’s decision, dated
December 9, 1981;
A letter from the Michigan Workmen’s Compensation Appeal Board,
dated October 5, 1973;
A letter from the United States Department of Education, dated July 22,
1998;
Court memoranda, dated December 31, 2002 and January 23, 2003.
Certain medical records, dated between January 21, 1973 and May 14,
2002.
None of these documents were before the Commissioner when the administrative proceedings officially ended. The record indicates that the final administrative action subject to review in this case occurred on August 23, 2002 (when the Appeals Council denied review of the ALJ’s April 30, 2002 decision).
[¶16] As a general rule, a court is precluded from considering a claimant’s after-the-fact submissions on appeal by virtue of the prohibition against de novo review. Id. The court may, however, remand the case to the Commissioner for consideration of new evidence where such evidence is “material” and the claimant demonstrates “good cause” for failing to submit the evidence at the administrative level:
The court ... 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 ... .
§205(g) (emphasis added).
[¶17] In the present case, even if Attia’s submissions all constitute “new” evidence, as the Commissioner maintains, they are nonetheless, not “material”. Evidence is only “material” if it is “non-cumulative, relevant, and probative of the claimant’s condition for the time period for which benefits were denied.” Krogmeier, 294 F3d at 1025. The Department of Education letter concerning a student loan has no relevancy to Attia’s work activity during the time period in question. Similarly, the medical records Attia presents have no bearing on the issue of whether he met the insured status requirements. The same is true with respect to the Court memoranda Attia offers which relate solely to procedural and administrative matters involving his appeal.
[¶18] The arbitrator’s award, Michigan Appeal Board decision and letter are of limited evidentiary value. Indeed, none of these documents establish the additional work and earnings therefrom needed to increase Attia’s quarters of coverage so as to make him eligible for disability benefits. Attia contends that the award he received from the arbitrator granted him back pay. The written award itself, however, does not reflect that this was done. Rather, it merely states that Attia was to be placed on a leave of absence pending final determination of his worker’s compensation claim. Significantly, the award does not indicate whether Attia was to be given a paid leave of absence or whether he was to receive or continue to receive worker’s compensation benefits during this interim time period. Attia relies on Social Security Bd. v. Nierotko, 327 US 358 (1945) and 20 CFR §§404.1242, 404.1267, 404.1408 in support of his contention. These authorities, however, are inapposite and have no applicability to the instant case.
[¶19] Before a remand will be granted, there must be a reasonable likelihood that the evidence alleged to be “new” and “material” would have changed the Commissioner’s determination. Krogmeier, 294 F3d at 1025; see also Buckner v. Apfel, 213 F3d 1006, 1010 (8th Cir. 2000); Woolf v. Shalala, 3 F3d 1210, 1215 (8th Cir. 1993). For the reasons already discussed above, none of the documents Attia has submitted would serve to alter or otherwise affect the Commissioner’s decision to deny disability benefits.
[¶20] Regardless, Attia has not shown “good cause” for failing to incorporate the documents into the record before the Commissioner’s 2002 decision was final. Good cause is lacking because Attia had the opportunity to obtain and submit this evidence prior to the administrative record being closed, but failed to do so without providing a sufficient (or for that matter any) explanation. See Hinchey v. Shalala, 29 F3d 428, 433 (8th Cir. 1994); Smith v. Shalala, 987 F2d 1371, 1375 (8th Cir. 1993); see also Thomas v. Sullivan, 928 F2d 255, 260 (8th Cir. 1991); Delrosa v. Sullivan, 922 F2d 480, 483-84 (8th Cir. 1991); Phalen v. Bowen, 846 F2d 478, 481 (8th Cir. 1988).
[¶21] The Commissioner’s objections, therefore, to Attia supplementing the record with the seven documents enumerated herein, is sustained and the Court declines to consider this evidence and/or remand the case to the Commissioner for further proceedings.
VI.
[¶22] In addition to filing several Motions for leave to supplement the administrative record, Docket Nos. 32, 33, 34, 39, 44, Attia has filed a Motion to Vacate the District Court’s February 26, 2003 Order, Docket No. 22. The Court has considered these Motions and believes that they should all be denied because good cause has not been shown, and/or cannot be found, for granting the same.
VII.
[¶23] Based on the foregoing findings, conclusions and discussion, and in light of the entirety of the record, it is hereby
[¶24] RECOMMENDED that Attia’s Motion to Vacate, Docket No. 22, be denied. It is further
[¶25] RECOMMENDED that Attia’s Motions for Leave to Supplement the Record, Docket Nos. 32, 33, 34, 39, 44, be denied and the Commissioner’s objections to augmenting the administrative record and/or to remanding the case, Docket No. 40 at 4-9, be sustained. It is further
[¶26] RECOMMENDED that Attia’s complaint, Docket No. 1, be dismissed in its entirety and with prejudice. It is further
[¶27] RECOMMENDED that judgment be entered forthwith and in accordance with §205(g) of the Act, 42 USC §405(g), affirming the Commissioner’s denial of disability benefits.
NOTICE
Failure to file written objections to the within and foregoing Report and Recommendations for Disposition within ten (10) days from the date of service shall bar an aggrieved party from attacking such Report and Recommendations before the assigned United States District Judge. See 28 USC §636(b)(1).
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