JOHN M. WALKER, JR., Chief Judge.
Plaintiff-appellant Jean Byam appeals from the judgment of the United States District Court for the District of Vermont (Jerome J. Niedermeier, Magistrate Judge) granting the motion for summary judgment by the defendant-appellee Commissioner of the Social Security Administration ("the Commissioner") and denying the cross-motion for summary judgment by the plaintiff-appellant Byam. The administrative law judge ("ALJ") granted Supplemental Security Income ("SSI") disability benefits dating back to June 1996, but refused to reopen three previous applications filed in 1993, 1994, and 1995 that had been denied and for which no hearing had been requested. The district court ruled that it lacked the jurisdiction to review the decision to deny Byam's request to reopen her earlier applications for SSI disability benefits, because neither did the ALJ constructively reopen the appellant's previous applications nor did the ALJ's decision not to reopen the appellant's previous applications violate due process.
We conclude that the district court erred in two respects: 1) it misapplied Stieberger v. Apfel, 134 F.3d 37 (2d Cir.1997), by focusing solely on whether Byam could "comprehend" notice of denial of disability benefits, and not whether she could "act upon notice," id. at 40; and 2) it misconstrued the administrative law judge's findings of facts in ruling that there was no violation of due process. Accordingly, we vacate the district court's grant of summary judgment and remand for further proceedings on the question of whether Byam was denied due process in her previous applications for SSI benefits.
We first briefly describe the administrative scheme for SSI applications, and then turn to Byam's medical and psychiatric evaluations as they developed over the course of her four applications.
A. Procedures for SSI Applications
The Social Security Act entitles disabled individuals to receive SSI benefits. See 42 U.S.C. § 1381a. The Act defines disability as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1).
A claimant whose application has been denied may request reconsideration within sixty days of receiving the denial. 20 C.F.R. § 416.1409(a). If the claim has been denied on reconsideration, the claimant may request a hearing before an ALJ within sixty days. § 416.1433(b). Following the ALJ's decision, the claimant may request review by the Appeals Council within sixty days. § 416.1468(a). The Appeals Council renders the agency's determination final, and it is subject to judicial review within sixty days. § 416.1481. The claimant may request that her application be reopened within twelve months of notice of the initial determination for any reason, and within two years of the initial determination for good cause. § 416.1488(a)-(b). An applicant establishes "good cause" by furnishing new and material evidence; demonstrating a clerical error; or offering evidence in the administrative record that "clearly shows on its face that an error was made."
B. Byam's Psychiatric Background and Previous Applications
Byam, who was born in 1950, has been unable to work since June 1, 1969, which she attributes to depression, headaches, and arthritis. According to her psychiatric records, Byam has been hospitalized three times after suicide attempts in 1969, 1974, and 1981.
Byam, unassisted by counsel, first applied for SSI benefits on September 13, 1993. The application included a "Mental Residual Functional Capacity Assessment" ("MRFCA") and a "Psychiatric Review Technique" by Dr. Gayle Frommelt. The MRFCA form begins by explaining, "Each mental activity is to be evaluated within the context of the individual's capacity to sustain that activity over a normal workday and workweek, on an on going basis." Similarly, the Psychiatric Review Technique uses categories established by 20 C.F.R. § 416.925 and 20 C.F.R. § 404, Subpt. P, Appendix 1, which "are so constructed that an individual with an impairment(s) that meets or is equivalent in severity to the criteria of a listing could not reasonably be expected to do any gainful activity." 20 C.F.R. § 404, Subpt. P, Appendix 1, 12.00 Mental Disorders, Introduction. Thus, these evaluations focus specifically on employment.
Dr. Frommelt noted that Byam had an affective disorder, which the regulations characterize as "a disturbance of mood, accompanied by a full or partial manic or depressive syndrome," and a personality disorder, defined as "typical of the individual's long-term functioning." 20 C.F.R. § 404, Subpt. P, Appendix 1, listings 12.04 and 12.08. Dr. Frommelt checked boxes indicating that Byam had "[i]nflexible and maladaptive personality traits which cause either significant impairment in social or occupational functioning or subjective distress," including "[p]ersistent disturbances of mood or affect," "[p]athological dependence [and] aggressivity," and "[i]ntense and unstable interpersonal relationships and impulsive and damaging behavior." Dr. Frommelt also checked boxes indicating that Byam was "moderately limited" in her ability to understand, remember, and carry out detailed instructions, her ability to maintain attention and concentration for extended periods, and her ability to set realistic goals or make plans on her own, in addition to other moderate work-related limitations. Dr. Clifford Rivers, in a separate psychological assessment, also noted that her mood disorder affects her concentration and attention, that she "may be becoming more dependant and coping increasingly poorly," and that she lacks judgment and "insight into many of her problems." On November 19, 1993, the Social Security Administration ("SSA") denied her 1993 application initially and denied it again upon reconsideration on April 6, 1994.
Byam, again unaided by counsel, filed a third application on July 26, 1995. Her 1995 evaluations indicate that her depression and poor concentration continued. Dr. Hurley completed her MRFCA for the 1995 application and found some improvement over the past year, but continued to observe moderate limitations in her ability to carry out detailed instructions. The acting regional commissioner denied her 1995 application initially on September 12, 1995 and on reconsideration on November 29, 1995. As with her previous applications, she did not request a hearing. Even though at any time within a year of the denials of her 1993, 1994, and 1995 applications she could have requested that her applications be reopened, she never did so, despite the denial notices' warnings that she may lose benefits by filing a new application. 20 C.F.R. §§ 416.1487-88.
C. Procedural History of Byam's 1996 Application
On June 21, 1996, Byam filed her fourth application. Her 1996 evaluations for this application noted clarity, coherence, and no delusions, but also suicidal ideation, depression, auditory hallucinations, and social phobia. They also mention that she suffered severe childhood physical and sexual abuse. The acting regional commissioner of the Social Security Administration again denied her application initially and on reconsideration. This time, she requested a hearing, but she submitted the request almost a month past the sixty-day request period, which she attributed to illness. The ALJ found no good cause for her untimeliness and dismissed the request.
In 1996, at about the time of her fourth application, Byam began to see Dr. Judy Nepveu for evaluation and treatment. Based upon previous evaluations and her own observations, Dr. Nepveu found that Byam suffers from "lifelong dysfunction" and is of "borderline retarded intellect," although Dr. Nepveu had not measured her IQ. Dr. Nepveu concluded that Byam suffers from PTSD probably as a result of "family violence." Two years later, in 1998, Dr. Nepveu observed that Byam's coping style is "fixed and dysfunctional —
On January 29, 1998, Byam's counsel wrote to the SSA Office of Hearings and Appeals, enclosing a letter from Dr. Nepveu stating that Byam has a "borderline retarded intellect" and that she is "too disabled to do what it takes to get `disability'" benefits. After receiving this letter, the ALJ found good cause for her untimely request for a hearing, and scheduled a hearing for August 12, 1998. After missing this hearing, Byam appeared with counsel and testified at a rescheduled hearing on March 18, 1999. Byam's counsel "requested reopening of previous applications," because Byam's "mental impairments have prevented her from following through."
On April 21, 1999, the ALJ granted Byam SSI disability benefits dating back to June 21, 1996, the day she filed the fourth application. He found that she had not engaged in substantial gainful activity since 1969, that "her depression and disorders of the back ... cause significant vocationally relevant limitations" and are "severe within the meaning of the regulations[, imposing] significant restrictions in the ability to perform basic work activities," and that her impairments fit the criteria of an affective disorder under the federal regulations. 20 C.F.R. § 404, Subpt. P, Appendix 1, Section 12.04. The ALJ described her psychiatric condition as follows:
The ALJ recognized that "the claimant has suffered from depression, post traumatic stress disorder, and borderline retarded intellect," but found that her condition worsened after June 1997, and that she was disabled "beginning [on] June 21, 1996 but not prior there to [sic]."
On the question of reopening her earlier applications, the ALJ concluded that "[t]here is no medical evidence which can establish disability prior to June 21, 1996. Therefore, I find that there is no new and material evidence or error on the face of the evidence that would establish good cause for reopening" under 20 C.F.R. § 416.1488(b). However, the ALJ did not inquire whether her applications were denied as the result of "fault" (i.e., mental incapacity in Byam's case) under 20 C.F.R. § 416.1488(c), and he did not inquire whether she had any mental or physical conditions that limited her "ability to do things for [her]self," in accordance with SSR 91-5p, 1991 WL 208067, at *2.
Byam requested review of the ALJ's decision before the Appeals Council, which summarily denied her request by a final
Magistrate Judge Jerome Niedermeier, sitting as the district court by consent of the parties pursuant to 28 U.S.C. § 636(c), granted the Commissioner's motion for summary judgment against Byam's claims. The district court ruled, first, that the ALJ had not constructively reopened the applications, and, second, that the denial notices were not constitutionally deficient. Despite noting that Dr. Nepveu's evaluation makes a "strong case for establishing that [Byam] was so severely disabled that she could not comprehend the administrative process," he concluded that her medical history before 1996 "falls short of establishing `sufficient severity to impair comprehension' of the administrative process." Byam v. Massanari, No. 2:00-CV-149, at 16 (D.Vt. July 5, 2001) (citing Stieberger, 134 F.3d at 40). Byam appeals from the district court's grant of summary judgment for the Commissioner.
A. Standard of Review
In appeals from denials of SSI benefits, we review the administrative record de novo to determine whether there is substantial evidence supporting the Commissioner's decision and whether the Commissioner applied the correct legal standard.
As a general rule, federal courts lack jurisdiction to review an administrative decision not to reopen a previous claim for benefits. See Califano v. Sanders, 430 U.S. 99, 107-09, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The Supreme Court explained the purpose underlying the non-reviewability of decisions not to reopen:
Id. at 108, 97 S.Ct. 980 (internal citations omitted). The Commissioner's decision not to reopen a prior determination is not a final decision for the purposes of § 405(g), and thus is generally unreviewable even if there was a hearing in the case. See Latona v. Schweiker, 707 F.2d 79, 81 (2d Cir.1983). Nevertheless, federal courts may review the Commissioner's decision not to reopen a disability application in two circumstances: where the Commissioner has constructively reopened the case and where the claimant has been denied due process.
If the Commissioner "reviews the entire record and renders a decision on the merits, the earlier decision will be deemed to have been reopened, and any claim of administrative res judicata to have been waived" and thus, "the claim is ... subject to judicial review." Malave v. Sullivan, 777 F.Supp. 247, 251-52 (S.D.N.Y.1991) (citing Coup v. Heckler, 834 F.2d 313, 317 (3d Cir.1987) and McGowen v. Harris, 666 F.2d 60, 65-67 (4th Cir.1981)); see also Kasey v. Sullivan, 3 F.3d 75, 77-78 (4th Cir.1993); Brown v. Sullivan, 932 F.2d 1243, 1246-47 (8th Cir.1991); Cherry v. Heckler, 760 F.2d 1186, 1189 (11th Cir. 1985); Taylor for Peck v. Heckler, 738 F.2d 1112, 1115 (10th Cir.1984). Judicial review is also permissible in "rare instances when the Secretary's denial of a petition to reopen is challenged on constitutional grounds." Califano, 430 U.S. at 109, 97 S.Ct. 980; cf. Able v. United States, 88 F.3d 1280, 1288 (2d Cir.1996) (discussing Supreme Court precedent on judicial review of constitutional claims). Thus, in the absence of either constructive reopening or a constitutional claim, the district court lacks jurisdiction to review a decision not to reopen. Latona, 707 F.2d at 81.
C. Constructive Reopening
First, Byam argues that the ALJ constructively reopened the previous applications by reviewing the evidence provided in those earlier applications and making a decision on the merits of that evidence. However, the district court held that the ALJ had not constructively reopened the previous applications, because he had not ruled on their merits but had only assessed whether there was new evidence to establish good cause to reopen them. We agree with the district court.
Byam points to language that, when read in isolation, suggests that the ALJ may have considered the merits of the earlier applications. For example, the ALJ found that "[t]here was no medical evidence which can establish Disability prior to June 21, 1996," and that "[t]he medical evidence supports a continued period of disability beginning June 21, 1996 but not prior there to [sic]."
However, as the district court correctly pointed out, the ALJ made these statements in the context of deciding whether Byam had demonstrated good cause for reopening her earlier applications. The ALJ followed those remarks by stating: "Therefore, I find that there is no new and material evidence or error on the face of the evidence that would establish good cause for reopening the prior decision." Cf. 20 C.F.R. § 416.1489. Byam makes no showing that the ALJ ruled on the merits of the earlier evidence,
D. Due Process
There is more substance to Byam's argument that the Commissioner's refusal to reopen her claim violated due process. Relying chiefly on Stieberger v. Apfel, 134 F.3d 37, she argues that the notice she received of the administrative denials was constitutionally deficient because her mental impairments prevented her from pursuing her administrative remedies while she was unrepresented by counsel. Byam argues that her impaired mental state affected both her comprehension and her ability to "follow through" on review procedures. The district court, in granting summary judgment to the Commissioner, focused on comprehension and not on ability to follow through. We find that the Commissioner and the district court both failed to apply the correct legal standard in evaluating Byam's mental capacity to pursue her benefits applications.
1. The Legal Standard for Deficiency of Notice
This appeal is similar in many respects to Stieberger. Stieberger, suffering from depression with suicidal ideation, schizophrenia, and anxiety, had failed to appeal the denial of her 1974 SSI application. Id. at 38. Two decades later, an ALJ rejected her argument that her mental impairments prevented her from pursuing the appeal and found no good cause to reopen the application. Id. at 38-39. She asserted a deprivation of her right to due process in federal court, on the basis that notice of the denial was constitutionally defective because of her impaired mental state. Reversing the district court's 12(b)(6) dismissal, we relied in part on our opinion in Canales v. Sullivan, 936 F.2d 755, 758 (2d Cir.1991), where we explained:
Id. at 40 (quoting Canales v. Sullivan, 936 F.2d 755, 758 (2d Cir.1991) (quoting Elchediak v. Heckler, 750 F.2d 892, 894 (11th Cir.1985))) (emphasis added). In emphasizing a claimant's "ability ... to act upon notice of available administrative procedures," we relied upon precedents from other circuits which defined mental impairment
The district court in this case interpreted Stieberger to hold that "notice of an adverse benefits determination to an unrepresented claimant who is unable to comprehend it because of mental impairments may be constitutionally deficient," and the court concluded that Byam's claim "falls short of establishing `sufficient severity to impair comprehension' of the administrative process." Byam v. Massanari, No. 2:00-CV-149, at 13, 16 (quoting Stieberger, 134 F.3d at 41). However, the district court failed to make the further inquiry under Stieberger into whether the claimant could "act upon notice." Stieberger, 134 F.3d at 40 (quoting Canales, 936 F.2d at 758).
2. Interpreting the Evidence of Mental Impairment
The district court properly recognized that Byam presented evidence of personality and affective disorders, dissociative presentation, and depression. However, in its due process inquiry, the district court relied upon evaluations that assessed Byam's mental state in the context of her employability, rather than of her ability to act upon legal notice. The district court cited Dr. Hurley's observation that Byam was "not significantly limited" in understanding and carrying out simple instructions and in similar areas, and that she was "moderately limited" in her ability to understand, remember, and carry out detailed instructions. Those observations were contained in Dr. Hurley's MRFCA as a part of Byam's 1994 application. The MRFCA evaluates mental health in the context of the "normal workday and workweek," and the Psychiatric Review Techniques completed by Dr. Frommelt and Dr. Hurley also evaluate the individual in an employment context.
The district court also cited the ALJ's "finding that the claimant was disabled as of June 1996." But the ALJ's decision not to reopen the earlier applications also was based on findings that focused on employability within the framework of the SSI regulations. Although the fault prong of 20 C.F.R. § 416.1488(c) empowers an ALJ to consider reopening past applications by evaluating whether a claimant was too impaired to comprehend notice, the ALJ never engaged in any factfinding or analysis in this area. The ALJ's conclusion that Byam was disabled as of June 21, 1996 reflected the date she filed her application, and not a judgment about her mental state before 1996. Indeed, the
We think that the district court's reliance on Dr. Hurley's evaluation and on the ALJ's findings in rejecting Byam's due process claims was misguided. The question was not whether Byam could understand and act upon instructions in the context of certain jobs, but whether she was impaired in her ability to understand and pursue administrative and legal procedures. "Moderate limitations" in an employment context may be severe ones in understanding legal notice and filing requests for administrative and judicial review. Depression and social phobia might not prevent one from holding certain jobs, but they may impede one's ability to act on notice or go to a hearing. We do not think that employment assessments such as Dr. Hurley's are irrelevant to this question; indeed, they may be helpful to a fact-finder evaluating a due process claim, but they are neither sufficient nor dispositive. Dr. Hurley's findings in 1994 of moderate limitations in all four evaluation categories ("understanding and memory," "sustained concentration and persistence," "social interaction," and "adaptation") leave open questions about Byam's ability to comprehend and act upon notice in her earlier applications.
The district court noted that Dr. Nepveu's 1998 letter "makes a strong case for establishing that the claimant was so severely disabled that she could not comprehend the administrative process," but concluded that Dr. Nepveu's observations in 1998 had "no relevance to the claimant's state of mind from 1993 to 1996." However, we have held that while a treating physician's retrospective diagnosis is not conclusive, it is entitled to controlling weight unless it is contradicted by other medical evidence or "overwhelmingly compelling" non-medical evidence. Rivera v. Sullivan, 923 F.2d 964, 968 (2d Cir.1991); see also Wagner v. Sec'y of Health and Human Servs., 906 F.2d 856, 862 (2d Cir. 1990). Dr. Nepveu's diagnosis bears retrospectively on Byam's condition at earlier times, particularly in her diagnosis of "life[-]long dysfunction," "borderline mental retardation," PTSD, and personality disorders. The earlier contemporaneous evaluations do not appear to contradict Dr. Nepveu's diagnoses, and in fact, in some of their aspects, tend to support them. We do not rule out the possibility that the plaintiff's condition may have degenerated from 1993 to 1997-98, raising a concern about the retrospective accuracy of Dr. Nepveu's evaluation. However, in other cases of degenerative conditions and speculative retrospective diagnoses, plaintiffs have won reversals of adverse decisions. Rivera, 923 F.2d at 968 (citing Wagner, 906 F.2d. at 861). We do not forecast the outcome here in concluding that plaintiff has put forth sufficient evidence to warrant consideration of her due process claim.
Finally, we turn to whether Byam has satisfied Stieberger's requirement of a "particularized allegation of mental impairment plausibly of sufficient severity to impair comprehension," Stieberger, 134 F.3d at 40-41, and easily find that she has. There is record evidence of Byam's long history of depression, suicidal ideation with specific suicide attempts, and numerous evaluations around the dates of her SSI applications documenting specific mental disorders and cognitive, social, and emotional impairments. This evidence is sufficiently particularized and severe to meet Stieberger's threshold allegation requirement and to answer the Commissioner's motion for summary judgment.
We faced a similar situation in Stieberger, where we reviewed the district court's 12(b)(6) dismissal of the claimant's complaint. Rather than remanding that case back to the district court for discovery and trial on the merits of the due process claim, we "conclude[d] that the expertise of the SSA should be enlisted to make an initial determination, subject to traditional judicial review to determine if an adverse decision is supported by substantial evidence." Stieberger, 134 F.3d at 41. Our due process inquiry as to whether a claimant's mental condition impaired comprehension of and the ability to act upon notice is closely related to the agency's "fault" inquiry under 20 C.F.R. § 416.1488(c) and its "good cause" inquiry under SSR 91-5p. In Stieberger, the ALJ and the Appeals Council had reviewed, under SSR 91-5p, whether the claimant had shown good cause for missing a deadline, and so we remanded to the district court for review of the SSA's determination under a substantial evidence standard. Id. at 38-39, 41. Here, the ALJ had engaged in no such inquiry under § 416.1488(c) or 91-5p, and thus, a remand to the SSA for a hearing and fact-finding on these questions of mental impairment is appropriate. Remanding for an agency hearing would also streamline the proceedings, because if the agency determines that it should reopen Byam's applications, it could then rule on the merits of those applications and calculate benefits, if necessary. A federal court might then be able to review both the reopening issue and the substantive merits in a single proceeding.
Both parties acknowledge that the appropriate relief generally would be a remand to the agency for a hearing on whether to reopen the past applications. However, Byam asks for a reversal and a remand to calculate benefits, which would effectively grant summary judgment in her favor that her right to due process was violated and that she is entitled to the benefits that she had applied for beginning in 1993. We decline this invitation. Under Stieberger, the initial determination of whether claimant's mental impairments prevented her from receiving sufficient notice lies with the SSA, and the question of her entitlement to benefits between 1993 and 1996 is not properly before us. She cites a Fourth Circuit precedent, Young v. Bowen, for reversing and remanding for a calculation of benefits, but in that case, the Fourth Circuit found that the Appeals Council, in reviewing the ALJ's decision, had evaluated the merits of the claimant's application and found that the claimant was entitled to benefits. 858 F.2d 951, 955-56 (4th Cir.1988). At this stage of Byam's case, the agency has considered neither the merits of the earlier applications nor the effect of mental impairments in preventing the claimant from following the administrative procedures. From our perspective, we simply are unable to conclude at this point that Byam is entitled to benefits requested in her previous applications.
In accordance with Stieberger, we instruct the district court to remand this case to the agency for a hearing on whether to reopen Byam's previous applications under 20 C.F.R. § 416.1488 or extend their deadlines for review under SSR 91-5p; and if any of the applications should be reopened or reviewed, the agency should determine if she is entitled to benefits and should calculate those benefits. The agency's decision whether to reopen or not may then be reviewed, if necessary, by the district court for substantial evidence. If that should occur, the agency and the district court will have addressed the substance of her due process claim, and further
For the foregoing reasons, the district court's judgment is VACATED, and we REMAND to the district court, with instructions to remand to the agency for an initial determination on whether to reopen Byam's 1993, 1994, and 1995 applications.