United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Jeffrey T. Gilbert United States Magistrate Judge.
Linda Polli (“Claimant”) is seeking review of a
decision by Nancy A. Berryhill, Acting Commissioner of Social
Security (“the Commissioner”), dismissing
Claimant's request for a hearing on an application for
disability insurance benefits (“DIB”) under Title
II of the Social Security Act. Pursuant to 28 U.S.C. §
636(c) and Local Rule 73.1, the parties have consented to the
jurisdiction of a United States Magistrate Judge for all
proceedings, including entry of final judgment. [ECF No. 7].
This matter is now before the Court on the Commissioner's
Motion for Reversal with Remand for further Administrative
Proceedings (“the Commissioner's Motion”),
[ECF No. 17]. For the reasons stated below, the
Commissioner's Motion [ECF No. 17] is granted.
17, 2010, Claimant filed an application for DIB, alleging an
onset date of March 1, 2009. [ECF No. 1, ¶ 5; ECF No.
1-2 at 3]. The Commissioner denied the application at the
initial level on December 14, 2010. [ECF No. 1, ¶ 5; ECF
No. 1-2 at 3]. Then, on May 13, 2011, the Commissioner denied
the application on reconsideration. [ECF No. 1, ¶ 5; ECF
No. 1-2 at 3]. Claimant did not appeal the denial on
reconsideration. [ECF No. 1, ¶ 5; ECF No. 1-2 at 3].
November 1, 2012, which was more than two years after her
date last insured, Claimant filed a second application for
DIB. [ECF No. 1, ¶ 6; ECF No. 1-2 at 2]. This time,
Claimant alleged a disability onset date of October 1, 2009.
[ECF No. 1, ¶ 6]. On January 30, 2013, the Commissioner
found Claimant not disabled at the initial level.
Id. ¶ 7; [ECF No. 1-2 at 2; ECF No. 1-3 at 17].
On June 11, 2013, the Commissioner found Claimant not
disabled at the reconsideration level. [ECF No. 1, ¶ 7;
ECF No. 1-2 at 2; ECF No. 1-4 at 20]. Unlike with her first
application, Claimant then requested a hearing. [ECF No. 1-2
at 2]. She filed a request for a hearing on July 25, 2013.
Id. On February 10, 2014, the Administrative Law
Judge (“the ALJ”) held the first hearing on
Claimant's second application for DIB. Id.
During the hearing, the ALJ admitted documents in
Claimant's electronic claim file into evidence.
Id. Medical experts and a vocational expert appeared
but did not testify. Id. The ALJ held another
hearing on May 16, 2014 during which he explained the concept
of res judicata and asked Claimant's attorney to
submit a written brief on the issue. Id. 2-3. Again,
medical experts and a vocational expert appeared but did not
testify. Id. at 3. The ALJ held the third and final
hearing on May 6, 2015. Id. at 3. During this
hearing, the ALJ admitted documents in Claimant's
electronic file into evidence, and a medical expert and a
vocational expert testified. Id. After the hearing,
the ALJ held the record open to receive additional medical
records and Claimant's written brief on the res
judicata issue. Id.
September 24, 2015, the ALJ issued a Notice of Dismissal and
an accompanying Order of Dismissal. Id. at 1-21. In
the Order of Dismissal, the ALJ outlined the elements of the
administrative res judicata doctrine and what
Claimant had to show in order to establish that her second
application should not be dismissed on the grounds of res
judicata. Id. at 3-4, 6. Among other things,
the ALJ explained that whether res judicata required
dismissal would depend in part on whether Claimant had
presented any new and material evidence. Id. at 3-4,
6. The ALJ then proceeded to conduct the normal five-step
process for Social Security claims. Id. at 6-20.
Based on this analysis, the ALJ concluded none of the new
evidence submitted by Claimant was material. Id. at
21. The ALJ also addressed the other elements of res
judicata and ultimately concluded the Order by saying,
“Accordingly, the doctrine of res judicata
applies, and the request for hearing dated July 25, 2013 is
dismissed.” Id. On December 13, 2016, the
Appeals Council denied Claimant's request for review of
the ALJ's dismissal. [ECF No. 1-1].
denial on reconsideration of Claimant's application that
was filed in 2010 became a final decision when she did not
request a hearing. 20 C.F.R. § 404.921. Social Security
regulations incorporate an administrative res
judicata doctrine. Keith v. Barnhart, 473 F.3d
782, 784 (7th Cir. 2007). In particular, 20 C.F.R. §
404.957(c)(1) permits an ALJ to dismiss a request for a
hearing when he decides “the doctrine of res
judicata applies” because the Commissioner has
“made a previous determination or decision . . . on the
same facts and on the same issue or issues, and this previous
determination or decision has become final by either
administrative or judicial action.” 20 C.F.R. §
404.957(c)(1). An ALJ's decision “to apply
administrative res judicata is a discretionary one
not subject to judicial review.” Johnson v.
Sullivan, 936 F.2d 974, 976 (7th Cir. 1991).
Commissioner concedes that the ALJ erred in dismissing
Claimant's request for a hearing on res judicata
grounds. [ECF No. 17, ¶ 1; ECF No. 18, at 2-4]. In her
first application, Claimant alleged disability due to, among
other things, stage 2 colon cancer. [ECF No. 1-2 at 7]. On
July 20, 2015, the Commissioner revised the criteria it uses
to evaluate claims involving cancer (malignant neoplastic
diseases). 80 Federal Register 28821-01. That means that, as
the Commissioner again concedes, there was a change in a
relevant regulation between the denial of Claimant's
first application and the ALJ's dismissal of her July 25,
2013 request for a hearing. [ECF No. 18, at 2-4]. The Social
Security Administration's Hearings, Appeals, and
Litigation Law Manual (“HALLEX”) provides that an
ALJ may not dismiss a request for a hearing based on res
judicata “when there has been a change in a
statute, regulation, ruling or legal precedent that was
applied in reaching the final determination or decision on
the prior application” because, in that instance, a
“new adjudicative standard exists and the issues cannot
be considered the same as the issues in the prior
case.” HALLEX I-2-4-40(k). Although the Commissioner
admits the ALJ's decision should be reversed and this
matter remanded for further administrative proceedings [ECF
No. 17, ¶ 1; ECF No. 18, at 3], the parties are not in
complete agreement concerning the scope of the remand, which
is why the Court is issuing this Memorandum Opinion and
The Commissioner Did Not Reopen the Denial of Claimant's
parties first dispute whether the Commissioner is precluded
from dismissing Claimant's request for a hearing on her
second application based on res judicata because the
decision on Claimant's first application was reopened.
Reopening is “a creature of regulation.”
McLachlan v. Astrue, 703 F.Supp.2d 791, 799 (N.D.
Ill. 2010). The Social Security Act does not provide for the
reopening of closed proceedings, and reopening thus is
governed solely by the regulations promulgated by the
Commissioner that permit reopening. See Bolden for Bolden
v. Bowen, 868 F.2d 916, 917 (7th Cir. 1989). The
regulations “dictate when, how, and for what reasons
the Commissioner may reopen a claim.” Gray v.
Colvin, 2015 WL 5092606, at *2 (D. Or. Aug. 27, 2015);
see also Clayton v. Comm'r of Soc. Sec., 2016 WL
8708309, at *5 (E.D. Mich. May 20, 2016), report and
recommendation adopted in part, 2016 WL 5402963 (E.D.
Mich. Sept. 28, 2016). In other words, the Commissioner has
no authority to reopen a decision if the regulatory
requirements are not met. See Glazer v. Comm'r of
Soc. Sec., 92 F. App'x 312, 315 (6th Cir. 2004);
Coates on Behalf of Coates v. Bowen, 875 F.2d 97,
100 (7th Cir. 1989); Downs v. Comm'r of Soc.
Sec., 2016 WL 674851, at *6 (E.D. Mich. Jan. 28, 2016),
report and recommendation adopted, 2016 WL 652354
(E.D. Mich. Feb. 18, 2016); Medvrich v. Colvin, 2015
WL 58925, at *2 (E.D. Mo. Jan. 5, 2015); McLachlan,
703 F.Supp.2d at 799. Although judicial review of whether the
Commissioner should reopen a decision is very limited, a
court may determine if the Commissioner actually has reopened
a decision. Alfreds v. Colvin, 618 F. App'x 289,
290 (7th Cir. 2015); Strietelmeier v. Berryhill,
2017 WL 4250860, at *3 (N.D. Ind. Sept. 25, 2017);
Ritchie v. Berryhill, 2017 WL 3947541, at *4 (N.D.
Ind. Sept. 8, 2017).
already stated, Social Security regulations provide that a
determination or decision that “is otherwise final and
binding may be reopened.” 20 C.F.R. § 404.987. The
Commissioner may reopen the determination or decision
“on [her] own initiative” or a claimant
“may ask that” it be reopened. Id.
Within 12 months of the date of the notice of the initial
determination, the Commissioner may reopen a determination or
decision for any reason. Id. § 404.988(a).
Within four years of the date of the notice of the initial
determination, the Commissioner may reopen a determination or
decision if the Commissioner finds there is “good
cause” for doing so. Id. § 404.988(b).
The Commissioner will find that good cause exists only where
(1) “new and material evidence is furnished, ”
(2) there was a “clerical error in the computation or
recomputation of benefits, ” or (3) “the evidence
that was considered in making the determination or decision
clearly shows on its face that an error was made.”
Id. § 404.989(a). At any time, the Commissioner
may reopen a determination or decision for other reasons,
none of which Claimant argues applies in this case.
Id. § 404.988(c).
says the filing of her second application reopened her first
application because she alleged an onset date that fell
within the period at issue in her first application. In
making this argument, Claimant relies on the Program
Operations Manual System (“POMS”), which is a
non-binding internal guidebook used by the Commissioner that
has no legal force. Jackson v. Colvin, 2016 WL
3087056, at *2 (N.D. Ill. May 31, 2016). In the section of
POMS that Claimant cites, however, the guidebook only
addresses “how reopening issues may arise” and
simply says reopening should be “consider[ed]”
when a denied claimant files a subsequent claim and alleges
an onset of disability in the period adjudicated by the prior
denial determination. POMS DI 27501.005. No provision of the
cited section supports the proposition that the mere filing
of such a subsequent claim automatically reopens a decision
on a prior application. See also POMS DI 27501.001
(discussing the necessary conditions for reopening a final
determination). The wording of the relevant Social Security
Regulation makes it clear that only the Commissioner has the
authority to reopen a prior decision, not a claimant.
See 20 C.F.R. § 404.987. Moreover, the notion
that the filing of an application always reopens a prior
decision when the new application implicates a period of time
at issue in the prior application is inconsistent with the
established principle that reopening can occur only when the
standards set forth in the Social Security regulations are
next asserts the Commissioner reopened the decision on her
first application while considering her second application at
the administrative level (i.e., at the initial and
reconsideration levels). As noted above, at the initial and
reconsideration levels on Claimant's first application,
the Commissioner did not raise res judicata but,
rather, found Claimant was not disabled. Claimant contends
the Commissioner's decision to reach the merits of his
second application at the administrative level precludes the
ALJ from later relying on res judicata to dismiss
the request for a hearing on that application. But courts
have “expressly rejected the argument that a reopening
of a prior final decision can occur at a lower level of staff
agency review and estop the ALJ and in turn the Commissioner