United States District Court, D. Arizona
S. Willett United States Magistrate Judge.
before the Court is Defendant's Motion to Dismiss (Doc.
8). Defendant asserts that this action must be dismissed for
lack of subject matter jurisdiction. For the reasons set
forth herein, the Motion (Doc. 8) will be
has filed two successive applications for disability
insurance benefits under Title II of the Social Security
Social Security denied Plaintiff's first application on
April 30, 2012. (Doc. 8-1 at 5-7). Plaintiff did not request
review of the denial that application.
March 1, 2013, Plaintiff filed a second disability
application, which alleged a disability onset date of
November 1, 2008. (Doc. 1-2 at 4). On May 26, 2013, Social
Security denied the claim. (Id.). On August 12,
2013, upon Plaintiff's request for reconsideration,
Social Security affirmed the denial of benefits.
(Id.). Plaintiff requested a hearing before an ALJ.
(Id.). On December 4, 2013, the assigned ALJ stated
that she “compared the evidence considered in reaching
the previous determination with that relating to the
claimant's current claim” and “finds that no
new and material evidence has been submitted . . . .”
(Id.). After concluding that Plaintiff's second
disability benefit application involved the same facts and
issues as Plaintiff's first disability benefit
application, the ALJ did not find it appropriate to reopen
Plaintiff's first application. (Id.). The ALJ
dismissed Plaintiff's request for a hearing regarding his
second disability benefit application under the doctrine of
res judicata. On September 26, 2016, the Appeals Council
denied Plaintiff's request for review. (Doc. 1-5 at 1-2).
Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988),
the Ninth Circuit explained that “the principles of res
judicata apply to administrative decisions, ” and
“in order to overcome the presumption of continuing
nondisability arising from the first [ALJ's] findings of
nondisability, ” the claimant must prove
“‘changed circumstances' indicating a greater
disability.” Pursuant to 20 C.F.R. §
404.957(c)(1), an ALJ may dismiss a claimant's request
for a hearing if “[t]he doctrine of res judicata
applies . . . .” An ALJ “may not apply res
judicata where the claimant raises a new issue, such as the
existence of an impairment not considered in the previous
application.” Lester v. Chater, 81 F.3d 821,
827 (9th Cir. 1995) (citation omitted). “Nor is res
judicata to be applied where the claimant was unrepresented
by counsel at the time of the prior claim.”
Id. at 827-28.
Subject Matter Jurisdiction
to Federal Rule of Civil Procedure 12(b)(1), dismissal is
appropriate when the Court lacks subject matter jurisdiction
over a claim. Under the Social Security Act, district courts
have jurisdiction to review “any final decision . . .
made after a hearing.” 42 U.S.C. § 405(g). The
Ninth Circuit has held that Social Security's decision
not to reopen a previously adjudicated disability claim is a
“purely discretionary decision and is therefore not
considered a ‘final' decision within the meaning of
§ 405(g).” Krumpelman v. Heckler, 767
F.2d 586, 588 (9th Cir. 1985) (citing Davis v.
Schweiker, 665 F.2d 934, 935 (9th Cir. 1982)).
“District courts, therefore, have no jurisdiction to
review a refusal to re-open a claim for disability benefits
or a determination that such a claim is res judicata.”
Id. However, a “district court has the
jurisdiction to determine, and should determine, whether the
claim precluded is the same as the claim previously
determined.” Id. (citing McGowen v.
Harris, 666 F.2d 60, 66 (4th Cir. 1981) (“[U]pon a
challenge to its jurisdiction on the basis that
administrative res judicata has been applied in bar of a
claim . . ., the district court has jurisdiction to
determine, as appropriate, whether res judicata has properly
been applied . . . .”).
addition, the Ninth Circuit has recognized that judicial
review is available as to a non-final decision made by Social
Security in “a case in which a claimant raises a
colorable constitutional challenge to the Secretary's
decision.” Panages v. Bowen, 871 F.2d 91, 93
(9th Cir. 1989). Such a constitutional challenge “must
relate to the manner or means by which the Secretary decided
not to reopen the prior decision, rather than to the merits
of the prior decision or the means by which that decision was
reached.” Id. A “mere allegation of a
due process violation” is not a colorable
constitutional claim.” Anderson v. Babbitt,
230 F.3d 1158, 1163 (9th Cir. 2000) (citing Hoye v.
Sullivan, 985 F.2d 990, 992 (9th Cir. 1993)). The claim
must be supported by “facts sufficient to state a
violation of substantive or procedural due process.”
Id. (quoting Hoye, 985 F.2d at 992).
asserts that the ALJ “appropriately dismissed
Plaintiff's request for hearing due to res
judicata.” (Doc. 8 at 4). To support this
assertion, Defendant has provided a Declaration of Nancy
Chung, who is the Chief of Court Case Preparation and Review
Branch 1 of the Office of Appellate Operations at the Social
Security Administration. (Doc. 8-1 at 1-4). Ms. Chung states
that she has custody of Plaintiff's official file
relating to his disability applications. (Id. at 3).
Ms. Chung recounts the general procedural history regarding
Plaintiff's disability insurance benefit applications,
but does not detail whether the applications involved the
same facts and issues. See Trulson v. Com'r, Soc.
Sec. Admin., 319 F. App'x 635 (9th Cir. 2009)
“[A] new issue in a second benefits application will
render res judicata inapplicable . . . .”). The Court
finds that Defendant has failed to provide sufficient
information from which the Court may determine whether the
ALJ properly decided the res judicata issue. See
McGowen, 666 F.2d at 66 (“In order to make this
jurisdictional determination, the district court ...