United States District Court, D. New Hampshire
MEMORANDUM AND ORDER
PAUL BARBADORO, District Judge.
Amanda Michelle Langill seeks judicial review of the Social Security Administration's refusal to reopen her previously denied claim for disability insurance benefits. The Commissioner has moved to dismiss Langill's complaint for lack of subject matter jurisdiction. For the reasons that follow, I deny the Commissioner's motion.
In July 2009, Langill, acting without legal counsel, filed a claim for disability insurance benefits and supplemental security income. In that claim, Langill alleged disability due to "[f]ibromyalgia, rapid heartbeat, sinus arrhythmia, and foot problems." Tr. 290. The Social Security Administration denied Langill's claim in October 2009. Langill did not timely seek further review of the Commissioner's denial, rendering the decision final.
On August 2, 2011, Langill filed another claim for disability benefits, this time represented by counsel. In that claim, Langill sought supplemental security income as of her application date. She also asked the Commissioner to reopen her previously denied claim for disability insurance benefits, alleging an onset date of December 31, 2008, her date last insured. Her claim was denied in December 2011, and she requested a hearing before an Administrative Law Judge ("ALJ"). That hearing took place on October 24, 2012.
On October 26, 2012, the ALJ found Langill disabled as of her application date, August 2, 2011, and awarded her supplemental security income benefits as of that date. Tr. 22. The ALJ, however, declined to reopen Langill's prior claim for disability insurance benefits. Tr. 14-15. He found that Langill had not submitted new and material evidence, and he determined that Langill did not lack the mental capacity to understand the procedures for seeking further review of her claim when it was denied in October 2009. Tr. 14-15. Thus, he concluded, Langill had failed to demonstrate good cause to reopen her initial claim. Tr. 14-15.
The Appeals Council affirmed the ALJ's decision in November 2013. On December 9, 2013, Langill filed a complaint in this Court seeking judicial review of the ALJ's refusal to reopen her 2009 application for disability insurance benefits. Doc. No. 1. On May 23, 2014, Langill filed an amended complaint. Doc. No. 13. As is relevant here, the amended complaint alleges that Langill "suffered violation of her due process because the ALJ did not follow SSA regulations to determine if she had good cause for re-opening... [Langill] showed good cause based on mental capacity and new and material evidence." Id. at 1.
The Commissioner now moves to dismiss Langill's amended complaint for lack of subject matter jurisdiction. Doc. No. 15.
As this Court recently explained:
The Social Security Act grants district courts jurisdiction to review only "final decision[s]" of the Commissioner. See 42 U.S.C. § 405(g). Both the Supreme Court and the First Circuit have held that the Commissioner's denial of a request to reopen a prior claim is a discretionary action, not a "final decision, " and therefore is not subject to judicial review. See id.; Califano v. Sanders, 430 U.S. 99, 108 (1977); Dvareckas v. Sec'y of Health and Human Servs., 804 F.2d 770, 772 (1st Cir. 1986)... see also Martin v. Shalala, 927 F.Supp. 536, 543 (D.N.H. 1995). A claimant may avoid the final decision requirement for judicial review only by raising a colorable constitutional claim against the Commissioner's action. See Sanders, 430 U.S. at 108-09; Dvareckas, 804 F.2d at 772.
Nerich v. Colvin, 2014 DNH 239, 14-15.
The amended complaint claims, in relevant part, that Langill "showed good cause based on mental capacity." Doc. No. 13 at 1. In other words, Langill argues both in the amended complaint and in her motion to reverse the Commissioner's decision that she lacked the mental capacity to understand the procedures for requesting further review of her initial claim after the Commissioner denied it in 2009. See Doc. No. 13 at 1; Doc. No. 11-1 at 5. An allegation of past mental impairment that prevented an unrepresented claimant from timely seeking further review of a denied claim can raise a constitutional claim that is subject to judicial review. See Klemm v. Astrue, 543 F.3d 1139, 1144-45 (9th Cir. 2008); Boothby v. Soc. Sec. Admin. Comm'r, No. 97-1245, 1997 WL 727535, at *1 (1st Cir. Nov. 18, 1997) (unpublished); Dupont v. Astrue, 2010 DNH 214, 5. To be amenable to judicial review, however, the constitutional claim must be "colorable." Boothby, 1997 WL 727535, at *1. The colorable constitutional claim requirement "is not an onerous standard." Id . Only "patently frivolous" constitutional claims, or those that are "wholly insubstantial, immaterial, or frivolous, " will fail to satisfy the colorable standard. See id. (internal quotations omitted).
After reviewing the record, I conclude that Langill's constitutional claim that she lacked the mental capacity to understand how to appeal her 2009 denial is colorable. It is undisputed that Langill was not represented by counsel when she filed her initial claim. A doctor who examined Langill at around the time her initial claim was denied determined that she was suffering from depression and noted that she was taking antidepressants. Tr. 280. The doctor also noted that Langill was experiencing "memory changes" and "foggy brain" at that time. Tr. 281. "While this is not overwhelming evidence, it does amount to a claim that is not wholly insubstantial, immaterial, or frivolous.'" Dupont, 2010 DNH 214, 6 (quoting Boothby, 1997 WL ...