UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Pamela Richard,

Plaintiff

v. Civil No. 08-cv-204-SM

Opinion No. 2009 DNH 008

Michael Astrue, Commissioner

Social Security Administration,

Defendant

O R D E R

The government moves to dismiss this suit on grounds that

the court lacks jurisdiction to review claims arising under the

Social Security Act in the absence of a final administrative

decision after a hearing. 42 U.S.C. § 405(g). While that is

generally correct, plaintiff here seeks judicial review under the

“colorable constitutional claim exception” recognized by the

Supreme Court in Califano v. Sanders, 430 U.S. 99 (1977). 

Plaintiff asserts a denial of due process. Taking the

allegations of the complaint as true, and considering the

pleadings and exhibits, filed without objection by both parties,

in the light favorable to the non-moving party, it is apparent

that plaintiff has made a particularized allegation of diminished

capacity that would be sufficient, if true, to qualify for the

tolling relief described in SSR 91-5p, 1991 WL 208067 (S.S.A.)

(mental disability precluding her from understanding or complying

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with the procedural requirements associated with taking an

appeal, at a time when she was not represented by counsel or

other responsible person, etc.). Moreover, she plausibly alleges

that the Administrative Law Judge denied her facially untimely

motion for a hearing with respect to the initial denial of her

benefits claim, without affording her an opportunity to be heard

on her SSR 91-5p claim, without considering evidence in the

record supportive of that claim, and without developing the

record with respect to that issue, all notwithstanding notice

that the claim was being asserted. Under these circumstances,

she has adequately presented a colorable constitutional claim of

denial of due process, which supports this court’s exercise of

jurisdiction. See generally Stieberger v. Apfel, 134 F.3d 37 (2d

Cir. 1997); Ranallo v. Astrue, C.A. No. 08-025, 2008 WL 2397553

(D.R.I. June 12, 2008); Blake v. Social Security Administration,

No. Civ. 02-112-B, 2003 WL 22703220 (D.N.H. Nov. 13, 2003).

There is no motion to remand pending, but that would seem to

be the likely predictable result here. The record suggests that

the agency failed to recognize or respond to what was an obvious

attempt to file a late appeal of the denial of benefits, and did

not consider her SSR 91-5p claim. The memoranda are somewhat

confusing, but the general impression given is that plaintiff’s

counsel made it reasonably clear that he sought not only to

reopen all prior benefits applications filed by plaintiff, but

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also to obtain a “late” hearing on the substantive denial of

benefits, on record-supported grounds, i.e., that the claimant

was suffering from mental impairments at the time benefits were

denied that precluded her from filing a timely appeal. Plaintiff

had sought benefits based upon a claimed mental disability. The

process the SSA itself provides, SSR 91-5p, requires adequate

notice, and recognizes that notice is not adequate when the

recipient is incapable of understanding or complying with the

noticed procedures, and it is specifically designed to avoid

applying res judicata bars to claims under circumstances such as

those pled here. That process also anticipates a hearing and

fact-finding on the issue of diminished capacity when it is

raised. This ought to be a matter capable of resolution by

agreement of the parties at this stage.

Conclusion

The Commissioner’s motion to dismiss for lack of subject

matter jurisdiction (document no. 5) is denied.

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

January 15, 2009

cc: Raymond J. Kelly, Esq.

T. David Plourde, Esq.

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