United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION AND ORDER
C. REEVES UNITED STATES DISTRICT JUDGE
Nancy A. Berryhill, Acting Commissioner of Social Security,
has moved to dismiss this case for lack of jurisdiction.
[Record No. 12] The Administrative Law Judge
(“ALJ”) assigned to this matter denied the
plaintiff's request for a hearing on res
judicata grounds. [Id.] Defendant Berryhill
contends that, because the ALJ's decision was made on for
this reason and without a hearing, there has not been a final
decision after a hearing, and this Court lacks jurisdiction.
[Id.] As explained below, the Court agrees with the
position taken by defendant and her motion will be granted.
Social Security Act only provides for judicial review of a
“final decision of the Commissioner of Social Security
made after a hearing.” 42 U.S.C. § 405(g);
Califano v. Sanders, 430 U.S. 99, 108 (1977). The
Sixth Circuit has held that “‘[d]enial of a
request for a hearing on grounds of res judicata
does not satisfy section 405(g)'s jurisdictional
requirement that there be a final decision of the Secretary
made after a hearing in order for the district court to
exercise review.'” Hilmes v. Sec'y of
Health & Human Servs., 983 F.2d 67, 69 (6th Cir.
1993) (quoting Jones v. Sec'y of Health & Human
Servs., No. 89-1603, 1990 WL 172565, *2 (6th Cir. Feb.
27, 1990)); see also Bagby v. Harris, 650 F.2d 836,
838 (6th Cir. 1981) (explaining that when an ALJ denies a
request for a hearing on res judicata grounds there
is “nothing to review by the district court”).
because “[c]onstitutional questions obviously are
unsuited to resolution in administrative hearing procedures,
” Califano, 430 U.S. at 109, there is an
exception to § 405(g)'s jurisdictional requirement
when the plaintiff presents “colorable constitutional
claim.” Cottrell v. Sullivan, 987 F.2d 342,
345 (6th Cir. 1992). In assessing whether the plaintiff's
claims trigger this exception, the Court is mindful that
“the use of constitutional language to ‘dress
up' a claim . . . does not convert the argument into a
colorable constitutional challenge.” Ingram v.
Sec'y of Health & Human Servs., 830 F.2d 67,
67-68 (6th Cir. 1987) (quoting Gosnell v. Sec'y of
Health & Human Servs., 16');">703 F.2d 216 (6th Cir.
case, Collins filed an application for disability benefits
and a period of disability on July 14, 2014. [Record No 12-1,
p. 7] His claim was denied initially and upon
reconsideration, and he filed a request for an administrative
hearing on September 12, 2014. [Id.] The ALJ denied
the request for a hearing on March 9, 2016, reasoning that
the Commissioner had previously reached final and binding
decision involving the same facts and issues on December 3,
1998, and so Collins' request for a hearing was barred by
the doctrine of res judicata. [Id. at p.
8-9] Collins submitted a request for review, which the
Appeals Council denied on March 28, 2017, without providing
for a right of judicial review. [Id. at p. 22-23]
the ALJ's decision denying the plaintiff's request
for a hearing, nor the Appeals Council's decision denying
the plaintiff's request for review, constitutes a
“final decision of the Commissioner of Social Security
made after a hearing.” See Hilmes, 983 F.2d at
69; Bagby, 650 F.2d at 838. Accordingly, the Court
lacks jurisdiction under 42 U.S.C. § 405(g), unless the
plaintiff has presented a colorable constitutional claim.
Complaint does not present a constitutional claim, and he has
not sought leave to amend his Complaint. See Gosnell v.
Califano, 625 F.2d 744, 745 (6th Cir. 1980) (holding
that the district court lacked jurisdiction because there was
not a final decision after a hearing, but should permit the
plaintiff to amend his complaint to assert a constitutional
claim). However, he argues in his response to the
defendant's motion to dismiss that “constitutional
violations have occurred . . . which warrant the retention of
this appeal.” [See Record Nos. 1, 13.] In
particular, Collins contends that he was denied of due
process because: (i) his file does not contain records of the
social security benefits he received; (ii) the ALJ denied his
request for a hearing; (iii) the prior decisions the ALJ
found have preclusive effect are not contained in the exhibit
list or record; and (iv) ALJs have not applied the doctrine
of res judicata when denying some of his claims
filed after December 3, 1998. [Record No. 13]
Collins' constitutional claims are contained in a
response to a motion, and not in his Complaint, they are not
properly before this Court. Although leave to amend a
complaint is to be “freely given when justice so
requires, ” Fed.R.Civ.P. 15(a), it is improper for the
Court to construe a response to a motion as an amended
complaint without any indication that the plaintiff intended
his response is to be so construed. See Carter v.
Colvin, 220 F.Supp.3d 789, 805 (E.D. Ky. 2016). Further,
it would be inappropriate to resolve Collins'
constitutional arguments at this point, because the
Commissioner has not filed “a certified
transcript” of the administrative record, and was not
required to do so. See 42 U.S.C. § 405(g).
Without the administrative record, it is difficult to assess
the factual allegations underlying Collins' due process
claim. However, it is worth noting that, even if Collins'
factual allegations are true, he has not explained why they
would amount to a due process violation, and similar
arguments have been rejected as attempts to dress up abuse of
discretion claims as constitutional issues. See Glazer v.
Commn'r Soc. Sec'y , 92 F. App'x 312, 315
(2003); Gosnell v. Sec'y of Health & Human
Servs., 16');">703 F.2d 216 (6th Cir. 1983); Colvin,
220 F.Supp.3d at 905.
summary, the Commissioner has not made a final decision after
a hearing, and the plaintiff has not presented a colorable
constitutional claim. As a result, this Court lacks
jurisdiction, and this matter must be dismissed. Fed.R.Civ.P.
12(h)(3). Accordingly, it is hereby
that Defendant Nancy A. Berryhill's Motion to Dismiss for
Lack of Jurisdiction [Record No. 12] is
GRANTED. This matter is