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Vertullo v. Colvin

United States District Court, W.D. Pennsylvania

February 27, 2015

JILL VERTULLO, Plaintiff,
v.
CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant

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[Copyrighted Material Omitted]

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For JILL VERTULLO Plaintiff: Kenneth R. Hiller, LEAD ATTORNEY, Evan W. Wolfson, Law Offices of Kenneth Hiller, PLLC, Amherst, NY.

For CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant: Colin Callahan, LEAD ATTORNEY, U.S. Attorney's Office, Pittsburgh, PA.

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MEMORANDUM OPINION

LISA PUPO LENIHAN, United States Magistrate Judge.

I. Introduction

Plaintiff Jill A. Vertullo (" Vertullo" ) brings this action pursuant to 42 U.S.C. § 405(g), purportedly seeking judicial review of a final decision of the Commissioner of Social Security (" Commissioner" ) which denied her application for disability insurance benefits (" DIB" ) under Title II of the Social Security Act (" Act" ), 42 U.S.C. § § 401-434. The matter is presently before the Court on a motion to dismiss filed by the Commissioner pursuant to Federal Rule of Civil Procedure 12(b)(1). (ECF No. 5). For the reasons that follow, the Commissioner's motion to dismiss will be granted, and this matter will be dismissed.

II. Procedural History

Vertullo first applied for DIB on March 27, 2007 (" first application" ), alleging that she had become " disabled" on January 1, 1998. (ECF Nos. 11-4, at p. 1; 15-5, at p. 19). Her date of last insurance for DIB purposes was December 31, 2001. Id. This application alleged disability based on multiple sclerosis and resulting panic attacks and anxiety. (ECF No. 15-5, at p. 32). Vertullo's first application was denied in a determination dated May 24, 2007, (ECF Nos. 5-3, at p. 5, 15-2, at p. 35), which became binding when she failed to request reconsideration within the stated time period, (ECF Nos. 5-3, at p. 5); 20 C.F.R. § 404.905. Over five years later, Vertullo filed a second application for DIB on October 11, 2012 (" second application" ), asserting the same date of disability onset as in her first application. (ECF Nos. 5-3, at p. 5; 15-6, at p. 2). Her second application cited the " continued disabilities" of multiple sclerosis and depression. (ECF No. 15-2, at p. 29) This application was initially denied on October 27, 2012. (ECF Nos. 12, at p. 1; 15-7, at p. 4). After Vertullo filed a request for reconsideration, the initial determination was upheld on January 29, 2013. (ECF Nos. 12, at p. 1; 15-7, at p. 8). Vertullo, represented by counsel, responded by filing a written request for a hearing by an Administrative Law Judge (" ALJ" ) on March 11, 2013. (ECF Nos. 5-3, at p. 5; 15-7, at p. 10).

On March 27, 2014, ALJ Natalie Appetta (" ALJ Appetta" ) " convened a hearing for the limited purpose of allowing counsel to present legal argument on the applicability of res judicata." (ECF Nos. 5-3, at p. 5; 15-2, at pp. 14-23). On April 18, 2014, ALJ Appetta issued an order dismissing Vertullo's request for a hearing based on the res judicata effect of the 2007 determination. (ECF No. 5-3, at p. 8) Vertullo requested Appeals Council review of this decision, which was denied on July 31, 2014. (ECF No. 5-2, at p. 3). She then commenced the instant action on September 19, 2014, seeking judicial review of the Commissioner's decision. (ECF No. 2). The Commissioner filed a Motion to

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Dismiss[1] and supporting brief on November 24, 2014, arguing that the Court lacks subject matter jurisdiction in this case. (ECF Nos. 5, 6). After the parties each gave consent to the adjudication of this matter by a United States Magistrate Judge in accordance with 28 U.S.C. ยง 636(c)(1), (ECF No. 8), Vertullo filed her Brief in Opposition to the Commissioner's motion on January 14, 2015, (ECF No. 12). The ...


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