March 29, 1996
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1743
JANET NIEMI,
Plaintiff, Appellant,
v.
DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Morris E. Lasker, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Stahl, Circuit Judges.
Camilla B. Duffy on brief for appellant.
Donald K. Stern, United States Attorney, Arthur J. Fried, General
Counsel, Randolph W. Gaines, Acting Principal Deputy General Counsel,
A. George Lowe, Acting Associate General Counsel, Litigation Division,
and Richard Fox, Attorney, Office of the General Counsel, Social
Security Administration, on brief for appellee.
Per Curiam. Claimant Janet Niemi appeals from a
district court judgment dismissing, on jurisdictional
grounds, her challenge to the denial of her second
application for disability benefits. We affirm.
I.
Claimant's attempts to obtain disability benefits have
ensued long after her insured status expired on June 30,
1980. She filed her first application, without legal
representation, on December 4, 1991, claiming an inability to
work since May 1, 1976 because of multiple sclerosis. Her
claim was denied at the initial level of administrative
review by notice dated January 13, 1992. No further review
was sought, with the result that the agency determination
became final. See 20 C.F.R. 404.905, 404.987(a).
With the assistance of counsel, claimant filed a second
application on November 27, 1992, along with a smattering of
new evidence. The cited medical impairment and the claimed
onset date were the same as those alleged earlier. After her
claim was denied initially and on reconsideration, claimant
sought a hearing before an administrative law judge (ALJ).
In a decision dated January 28, 1994, the ALJ denied the
hearing request on two grounds. First, he determined that
the claim was barred on res judicata grounds, inasmuch as the
earlier application had involved the same facts and issues.
See id. 404.957(c)(1). Alternatively, construing the
second application as a request to reopen the earlier claim,
the ALJ concluded that no new and material evidence had been
submitted so as to provide good cause for reopening. See id.
404.988(b), 404.989(a)(1).
Claimant sought review by the Appeals Council,
supplementing her request with recently acquired medical
evidence. The Appeals Council found that "the additional
reports contain no objective findings for the period before
1982, and no clinical support to demonstrate a severe
impairment existing continuously since at least June 30,
1980." Agreeing with the ALJ that no good cause for
reopening had been presented, it therefore declined the
request for review.
Claimant subsequently filed the instant action in
district court, premising jurisdiction on 42 U.S.C. 405(g).
In response to the Secretary's motion to dismiss, the
district court issued a detailed decision explaining that
subject matter jurisdiction was ordinarily lacking in this
context. Applying Califano v. Sanders, 430 U.S. 99, 107-09
(1977), and Matos v. Secretary of HEW, 581 F.2d 282, 284-87
(1st Cir. 1978), the court observed that judicial review of a
denial reached without a hearing was unavailable--whether
such denial was based on administrative res judicata or
involved a decision not to reopen. Accord, e.g., Colon v.
Secretary of HHS, 877 F.2d 148, 152-53 (1st Cir. 1989) (per
curiam); Torres v. Secretary of HHS, 845 F.2d 1136, 1138 (1st
Cir. 1988) (per curiam) (citing cases); see also Rios v.
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Secretary of HEW, 614 F.2d 25, 26 (1st Cir. 1980) (finding
jurisdiction lacking to review denial on res judicata grounds
and refusal to reopen, even where hearing had been held). As
the district court noted, an exception to this jurisdictional
bar exists in "rare instances" where a colorable
constitutional claim has been presented. Sanders, 430 U.S.
at 109; accord, e.g., Colon, 877 F.2d at 152. Yet claimant's
only allegation to this effect was that invocation of res
judicata violated due process where the first claim had been
dismissed without a hearing--a contention the court properly
deemed meritless. See, e.g., Rogerson v. Secretary of HHS,
872 F.2d 24, 29 (3d Cir. 1989); see also Matos, 581 F.2d at
285-86.
Nonetheless, with a reference to Shrader v. Harris, 631
F.2d 297 (4th Cir. 1980), the court went on to observe that a
separate constitutional claim might be stated were claimant
able to demonstrate that, because of mental incapacity, she
had been unable to understand or pursue the appeal procedures
in connection with her first, pro se application. Although
no such argument had been advanced, the court sua sponte
afforded claimant sixty days within which to attempt such a
showing. In response, claimant advanced a trio of
contentions. First, she argued that a combination of
symptoms--fatigue, depression and a sense of powerlessness--
had in fact prevented her from pursuing her rights in 1992.
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Principal support for this contention came from an MS
counselor who had provided claimant with group therapy at the
time. Second, claimant insisted that the January 1992 denial
notice had been ambiguously worded, particularly by failing
to clarify the necessity of filing an appeal as opposed to
reapplying for benefits. Finally, claimant complained that
many of her medical records had been (and to a large extent
remained) unavailable--a problem exacerbated by the
Secretary's failure to assist her in obtaining them. The
district court, unpersuaded that these contentions amounted
to a colorable due process violation, thereafter summarily
allowed the motion to dismiss. This appeal ensued.
II.
Claimant now acknowledges that the jurisdictional
question hinges on whether a colorable constitutional claim
has been presented. She argues that the factors just cited--
her emotional difficulties; the ambiguously worded notice of
denial; and the incomplete medical record--set forth such a
claim, at least in combination if not individually. We
disagree.
The Shrader case involved an extreme set of facts: e.g.,
psychiatric and other medical reports describing claimant (a
Vietnam War shell-shock victim) as living a "vegetative like
existence," as becoming "schizoid" and "paranoid," and as
"regress[ing] to a psychotic level." 631 F.2d at 299. While
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such dire circumstances are not invariably a prerequisite to
invoking the Shrader exception, the depression and sense of
powerlessness cited by claimant here are, quite obviously, of
a lower order of magnitude. As well, they are uncorroborated
by any medical evidence. The only relevant submission in
this regard comes from a lay person counselor; there is no
indication that claimant has ever received professional
treatment for her emotional maladies. It is also noteworthy
that, in her response to the Secretary's motion to dismiss,
claimant attributed her failure to appeal solely to an
inability to obtain supporting evidence for the period prior
to 1980 (when her insured status expired). As a result, we
agree that claimant has failed to "present prima facie
evidence of incompetency," id. at 302, that can be said to
have prevented her from comprehending or invoking the
administrative appeal process.
Claimant's challenge to the wording of the denial notice
likewise proves unavailing. To be sure, a number of courts
have determined that an earlier version of the notice was
sufficiently misleading as to be constitutionally defective.
See, e.g., Day v. Shalala, 23 F.3d 1052, 1064-66 (6th Cir.
1994); Gonzalez v. Sullivan, 914 F.2d 1197, 1202-03 (9th Cir.
1990). The offending passage involved in those cases had
advised claimants that "[i]f you do not request a hearing of
your case within the prescribed time period, you still have
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the right to file another application at any time." See,
e.g., id. at 1203. The notice received by claimant, however,
did not contain such language; instead, it contained a new
passage, added by the Secretary in 1990, which read as
follows:
You have the right to file a new application at any
time, but filing a new application is not the same
as appealing this decision. You might lose
benefits if you file a new application instead of
filing an appeal. Therefore, if you think this
decision is wrong, you should ask for an appeal
within 60 days.
Claimant's insistence that such revised language proves
equally defective falls short. See, e.g., Day, 23 F.3d at
1065 (suggesting that the 1990 revision "cured the
deficiencies" found in the earlier version); Rooney v.
Shalala, 879 F. Supp. 252, 255 (E.D.N.Y. 1995) (noting that
the revision "explicitly set forth the critical information,
missing from the earlier form, concerning the adverse effect
of failing to appeal").
As to claimant's final contention, even were we to
assume that an obligation to help develop the medical record
might arise at the initial review stage, it is not apparent
that the Secretary failed to make "reasonable effort[s]" to
do so. 20 C.F.R. 404.1512(d). The Disability
Determination Rationale accompanying the denial of claimant's
first application stated that the agency "contacted any
available source" of information. Moreover, we have
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indicated that, while the Secretary "must make an
investigation that is not wholly inadequate under the
circumstances," Miranda v. Secretary of HEW, 514 F.2d 996,
998 (1st Cir. 1975), she need not "go to inordinate lengths
to develop a claimant's case," Thompson v. Califano, 556 F.2d
616, 618 (1st Cir. 1977); accord, e.g., Currier v. Secretary
of HEW, 612 F.2d 594, 598 (1st Cir. 1980) (Secretary's
obligation requires attempt "without undue effort" to fill
evidentiary gaps by, inter alia, ordering "easily obtained"
medical reports). The record of claimant's medical treatment
prior to June 1980 proves to have been anything but easily
obtainable; even with the assistance of counsel, claimant was
unable to procure most of such evidence prior to her request
for Appeals Council review in connection with her second
application.
Accordingly, as no colorable constitutional claim has
been presented, we agree with the district court that subject
matter jurisdiction was lacking.1 See, e.g., Doe v.
1
1 Claimant separately contends that the Appeals Council
1
reappraised her new evidence in a manner that constituted a
de facto reopening, subject to judicial review. This
argument was not advanced below and so is not properly before
us. See, e.g., Evangelista v. Secretary of HHS, 826 F.2d
136, 144 (1st Cir. 1987). We find it without merit in any
event. See, e.g., Hall v. Chater, 52 F.3d 518, 521 (4th Cir.
1995) (rejecting similar argument on ground that "Secretary
must be afforded some leeway in making a decision whether to
reopen"); Torres, 845 F.2d at 1139 (noting that Secretary is
"entitled to make a threshold inquiry and review the evidence
presented ... in order to resolve the reopening issue").
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Secretary of HHS, 744 F.2d 3, 5 (1st Cir. 1984) (per curiam)
(affirming dismissal on jurisdictional grounds after finding
"no tenable constitutional claim"). Whether claimant might
yet be able to persuade the Secretary to reopen her
application, based on new and material evidence uncovered
since the date of the Appeals Council ruling, is a matter we
need not address.2
2
Affirmed.
2 Indeed, such a request might be bolstered by an
2
apparent error in the Secretary's ruling here. Under the
applicable regulations, a final agency decision may be
reopened: (1) within twelve months of the initial
determination "for any reason," (2) within four years thereof
for "good cause" (defined to include "new and material
evidence"), and (3) "at any time" for the purpose, inter
alia, of "correct[ing] clerical error or any error that
appears on the face of the evidence that was considered when
the determination or decision was made." See 20 C.F.R.
404.988, 404.989.
In the instant case, the ALJ rejected claimant's hearing
request on the ground that no "good cause" had been shown,
and the Appeals Council thereafter declined review on the
same basis. Yet claimant's second application was filed
within twelve months of the January 13, 1992 notice of
denial. Construed as a request for reopening, therefore, it
arguably should have been addressed under the "any reason"
standard rather than the "good cause" standard. We express
no view as to the effect of any possible error in this
regard, however, inasmuch as claimant has not raised the
issue either below or on appeal.
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