Quarles v. Colvin

Filing 19

MEMORANDUM OPINION AND ORDER that this case is REMANDED to the Commissioner under sentence six of 42:405(g) for proceedings consistent with this opinion. Signed by Magistrate Judge Katherine P. Nelson on 8/10/2016. (srr) Modified on 8/10/2016 (srr).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
JENNIFER A. QUARLES,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CIVIL ACTION NO. 15-00572-N

MEMORANDUM OPINION AND ORDER
Social Security Claimant/Plaintiff Jennifer A. Quarles has brought this
action under 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a final
decision of the Defendant Commissioner of Social Security (“the Commissioner”)
denying her applications for a period of disability and disability insurance benefits
(“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 401, et seq., and for
supplemental security income (“SSI”) under Title XVI of the Social Security Act, 42
U.S.C. § 1381, et seq. With the consent of the parties, the Court has designated the
undersigned Magistrate Judge to conduct all proceedings and order the entry of
judgment in this civil action, in accordance with 28 U.S.C. § 636(c), Federal Rule of
Civil Procedure 73, and S.D. Ala. GenLR 73. (See Docs. 16, 17).
Upon consideration of the parties’ briefs (Docs. 11, 12), those portions of the
administrative record (Doc. 10) (hereinafter cited as “(R. [page number(s) in lowerright corner of transcript])”) relevant to the issues raised, and the oral argument of
the parties made May 16, 2016, the Court finds that Quarles’s case is due to be
REMANDED under sentence six of 42 U.S.C. § 405(g).

I.

Background

On February 14, 2013, Quarles filed applications for a period of disability,
DIB, and SSI with the Social Security Administration (“SSA”), 1 both alleging
disability beginning November 1, 2012. 2

After her applications were initially

denied, Quarles requested an administrative hearing, which was held before an
Administrative Law Judge (“ALJ”) for the SSA on July 30, 2014.

Quarles was

represented by an attorney at the hearing. On November 19, 2014, the ALJ issued
an unfavorable decision on Quarles’s applications, finding her “not disabled” under
the Social Security Act and thus not entitled to benefits. (See R. 22 – 41).
What happened next is the primary concern of this action.

The

administrative record indicates that Quarles’s administrative representative
submitted to the Appeals Council for the SSA’s Office of Disability Adjudication and
Review, via facsimile transmission, a request for review of the ALJ’s unfavorable
decision.

Though the request brief was dated January 13, 2015 (R. 18), the

telecopier cover sheet that accompanied it was dated March 13, 2015, and contained
The Social Security Act’s general disability insurance benefits program provides
income to individuals who are forced into involuntary, premature retirement,
provided they are both insured and disabled, regardless of indigence. See 42 U.S.C.
§ 423(a). The Social Security Act’s Supplemental Security Income is a separate and
distinct program. SSI is a general public assistance measure providing an
additional resource to the aged, blind, and disabled to assure that their income does
not fall below the poverty line. Eligibility for SSI is based upon proof of indigence
and disability. See 42 U.S.C. §§ 1382(a), 1382c(a)(3)(A)-(C).

1

“For SSI claims, a claimant becomes eligible in the first month where she is both
disabled and has an SSI application on file. 20 C.F.R. § 416.202–03 (2005). For
DIB claims, a claimant is eligible for benefits where she demonstrates disability on
or before the last date for which she were insured. 42 U.S.C. § 423(a)(1)(A) (2005).”
Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (per curiam).

2

the notation: “Please process with original appeal date of 1/13/15.” (R. 17). On May
15, 2015, the Appeals Council issued a notice stating that Quarles’s request for
review was considered untimely because it was due January 23, 2015, but not filed
until March 13, 2015, and there was “no statement or other information about why
[Quarles] did not file the appeal on time.” (R. 9 – 10).
In response to the Appeals Council’s notice, Quarles’s administrative
representative sent the Appeals Council a letter stating: “I wrote an appeal letter on
January 13, 2015, and faxed it to your office on January 14, 2015.

When my

secretary called to check the status of the claim on March 13, 2015, she was told the
appeal was not on record and she re-submitted the appeal on that date. Please
continue to process the appeal.”

(R. 7).

On September 13, 2015, the Appeals

Council issued an order dismissing Quarles’s request for review. (R. 1 – 5). After
again noting that the request for review faxed March 13, 2015, was untimely, the
Appeals Council stated:
The regulations provide that the Appeals Council may dismiss a
request for review where the claimant has failed to file the request
within the stated period of time and the time for filing has not been
extended (20 CFR 404.971 and 416.1471). The time period will be
extended if good cause is shown for missing the deadline (20 CFR
404.968(b) and 416.1468(b)).
In a statement of good cause for the untimely request for review, the
claimant’s representative indicated that he wrote an appeal letter on
January 13, 2015 and faxed it to the Appeals Council on January 14,
2015. The representative indicated that, when his secretary called to
check the status of the appeal on March 13, 2015, she was told the
appeal was not on record and she re-submitted the appeal on that date.
The Council notes that the representative’s informal request for review
was dated January 13, 2015. However, the representative has not
provided evidence that the informal request for review was actually

submitted to the Council prior to March 13, 2015.
The Appeals Council, therefore, finds that there is no good cause to
extend the time for filing and, accordingly, dismisses the claimant’s
request for review.
(R. 4).
On November 11, 2015, Quarles, represented by new counsel, filed this action
under §§ 405(g) and 1383(c)(3) for judicial review of the Commissioner’s decision.
(Doc. 1).

See 42 U.S.C. § 405(g) (“Any individual, after any final decision of the

Commissioner of Social Security made after a hearing to which he was a party,
irrespective of the amount in controversy, may obtain a review of such decision by a
civil action commenced within sixty days after the mailing to him of notice of such
decision or within such further time as the Commissioner of Social Security may
allow.”); 42 U.S.C. § 1383(c)(3) (“The final determination of the Commissioner of
Social Security after a hearing [for SSI benefits] shall be subject to judicial review
as provided in section 405(g) of this title to the same extent as the Commissioner’s
final determinations under section 405 of this title.”).
II.

Claims on Judicial Review

Quarles claims “the Appeals Council’s dismissal of her request for review as
untimely and without good cause for extending the filing deadline was an abuse of
discretion.” Alternatively, she argues that the dismissal “should be reversed based
upon []new and material evidence submitted” with her brief. (Doc. 11 at 4 – 5).

III.

Standard of Review

The Social Security regulations provide that a party to an ALJ’s hearing
decision “may ask that the time for filing a request for the review be extended. The
request for an extension of time must be in writing. It must be filed with the
Appeals Council, and it must give the reasons why the request for review was not
filed within the stated time period.” 20 C.F.R. §§ 404.968(b), 416.1468(b). The
“time period will be extended” if the requesting party “show[s] that [she] had good
cause for missing the deadline…” Id. The standards for showing such “good cause”
are explained in 20 C.F.R. §§ 404.911 and 416.1411, as follows:
(a) In determining whether you have shown that you have good cause
for missing a deadline to request review we consider—
(1) What circumstances kept you from making the request on
time;
(2) Whether our action misled you;
(3) Whether you did not understand the requirements of the Act
resulting from amendments to the Act, other legislation, or court
decisions; and
(4) Whether you had any physical, mental, educational, or
linguistic limitations (including any lack of facility with the
English language) which prevented you from filing a timely
request or from understanding or knowing about the need to file
a timely request for review.
(b) Examples of circumstances where good cause may exist include, but
are not limited to, the following situations:
(1) You were seriously ill and were prevented from contacting us
in person, in writing, or through a friend, relative, or other
person.
(2) There was a death or serious illness in your immediate
family.

(3) Important records were destroyed or damaged by fire or
other accidental cause.
(4) You were trying very hard to find necessary information to
support your claim but did not find the information within the
stated time periods.
(5) You asked us for additional information explaining our action
within the time limit, and within 60 days of receiving the
explanation you requested reconsideration or a hearing, or
within 30 days of receiving the explanation you requested
Appeals Council review or filed a civil suit.
(6) We gave you incorrect or incomplete information about when
and how to request administrative review or to file a civil suit.
(7) You did not receive notice of the initial determination or
decision.
(8) You sent the request to another Government agency in good
faith within the time limit and the request did not reach us until
after the time period had expired.
(9) Unusual or unavoidable circumstances exist, including the
circumstances described in paragraph (a)(4) of this section,
which show that you could not have known of the need to file
timely, or which prevented you from filing timely.
As the Commissioner concedes (see Doc. 12 at 2 – 3), it has long been the law
of this Circuit that the Appeals Council’s dismissal of a request to review as
untimely is a “final” decision subject to judicial review under § 405(g). See Langford
v. Flemming, 276 F.2d 215, 218 & n.4 (5th Cir. 1960) (“The Appeals Council refused
to extend the time and accordingly refused to review the merits. The propriety of
this administrative decision declining to extend time and review the merits …
certainly is ‘final'…”); Bloodsworth v. Heckler, 703 F.2d 1233, 1238-39 (11th Cir.
1983) (holding that Califano v. Sanders, 430 U.S. 99 (1977), did not overrule

Langford and that judicial review of Appeals Council denials of requests for review
remains available under § 405(g)). See also Stone v. Heckler, 778 F.2d 645, 648 (11th
Cir. 1985) (“Although Bloodsworth has been explicitly or implicitly rejected by other
circuit courts of appeal, it remains binding precedent in this circuit.”); SSA
Acquiescence Ruling 99-4(11), 1999 WL 1137369 (Oct. 26, 1999) (disagreeing with
Bloodsworth but agreeing to provide notice to claimants within the Eleventh Circuit
of their right to request judicial review of Appeals Council dismissals of requests for
review). The parties agree that this Court reviews “the refusal by the Appeals
Council to extend time and review the merits” for “abuse of discretion” (i.e. whether
the refusal was “unreasonable or arbitrary”). The parties also agree that, when the
Appeals Council has dismissed a request for review, this Court may not review the
merits of the underlying decision denying benefits.3 Rather, “[a]ll that this Court
may consider … is whether the Appeals Council abused its discretion in dismissing
Plaintiff’s tardy request for review.” Waters v. Massanari, 184 F. Supp. 2d 1333,
1341 (N.D. Ga. 2001) (Beverly Martin, J.).4
Quarles also argues, in the alternative, that the Court should order a remand
Despite conceding this, Quarles’s brief (Doc. 11) nevertheless contains extensive
substantive discussion of both the ALJ’s decision and Quarles’s administrative
representative’s brief to the Appeals Council requesting review.

3

Waters reached this determination after “canvassing … post-Langford decisions” and
reasoning that “[t]o hold otherwise would essentially read out of the administrative scheme
the requirement that a claimant seek review at the Appeals Council level.” 184 F. Supp. 2d
at 1340-41. The Eleventh Circuit has not indicated otherwise, and other district courts in
this Circuit have agreed with Waters. See Ford v. Astrue, No. 3:06CV366/LAC/MD, 2008
WL 168890, at *1 (N.D. Fla. Jan. 16, 2008); Maxwell v. Comm'r of Soc. Sec., No. 6:12-CV-5ORL-GJK, 2013 WL 298267, at *2 (M.D. Fla. Jan. 25, 2013); Walker v. Comm'r of Soc. Sec.,
No. 6:12-CV-1025-ORL-DAB, 2013 WL 3833199, at *3 (M.D. Fla. July 23, 2013); Vargas v.
Colvin, No. 14-20133-CR, 2014 WL 6384150, at *3 (S.D. Fla. Oct. 28, 2014), report and
recommendation adopted, 2014 WL 6455366 (S.D. Fla. Nov. 13, 2014).

4

under sentence six of § 405(g) for consideration of new evidence.
Sentence six of section 405(g) provides the sole means for a district
court to remand to the Commissioner to consider new evidence
presented for the first time in the district court:
The court may ... at any time order additional evidence to be
taken before the Commissioner of Social Security, but only upon
a showing that there is new evidence which is material and that
there is good cause for the failure to incorporate such evidence
into the record in a prior proceeding ....
42 U.S.C. § 405(g). “The sixth sentence of § 405(g) plainly describes an
entirely different kind of remand [from the fourth sentence],
appropriate when the district court learns of evidence not in existence
or available to the claimant at the time of the administrative
proceeding that might have changed the outcome of that proceeding.”
Sullivan v. Finkelstein, 496 U.S. 617, 626, 110 S. Ct. 2658, 2664, 110 L.
Ed. 2d 563 (1990); see Melkonyan v. Sullivan, 501 U.S. 89, 98, 111 S.
Ct. 2157, 2163, 115 L. Ed. 2d 78 (1991) (The sixth sentence allows the
taking of “new evidence ... that was not available to the claimant at the
time of the administrative proceeding.”). A remand to the
Commissioner is proper under sentence six when new material
evidence that was not incorporated into the administrative record for
good cause comes to the attention of the district court. See Milano v.
Bowen, 809 F.2d 763, 766–67 (11th Cir. 1987) (ordering a sentence six
remand based on evidence first properly submitted to the district
court); Cherry v. Heckler, 760 F.2d 1186, 1193–94 (11th Cir.1985)
(same); Epps v. Harris, 624 F.2d 1267, 1273 (5th Cir.1980) (same);
Johnson v. Harris, 612 F.2d 993, 998–99 (5th Cir.1980) (same); see also
Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir.1999) (new evidence will
not be considered for the first time on appeal in this Court for the
purposes of a sentence six remand).
[S]ettled precedents establish that a sentence six remand is available
when evidence not presented to the Commissioner at any stage of the
administrative process requires further review.
Ingram v. Comm'r of Soc. Sec. Admin., 496 F.3d 1253, 1267 (11th Cir. 2007).
IV.
A.

Analysis

Claim 1 (Abuse of Discretion in Dismissing Review)

In arguing that the Appeals Council abused its discretion in dismissing her
request for review as untimely, Quarles relies almost exclusively on the reasoning
in Vargas v. Colvin, No. 14-20133-CR, 2014 WL 6384150 (S.D. Fla. Oct. 28, 2014)
(Valle, M.J.), report and recommendation adopted, 2014 WL 6455366 (S.D. Fla. Nov.
13, 2014) (Bloom, J.), which she asserts “considered the exact issue as presented
here…”

(Doc. 11 at 6 – 8).

In response to Claim 1, the Commissioner’s brief

essentially restates the reasoning of the Appeals Council’s order of dismissal and
conclusorily suggests, without citation to authority, that the Appeals Council acted
“within its discretion to dismiss Plaintiff’s request for review.” (Doc. 12 at 3). The
Commissioner’s brief does not even acknowledge, much less substantively discuss,
Vargas. The Commissioner also offered little discussion of Vargas at oral argument.
This may, however, have been a strategic decision, as Quarles herself does not
directly address the Appeals Council’s stated reason for denying her an extension of
time to request review: that her “representative ha[d] not provided evidence that
the informal request for review was actually submitted to the Council prior to
March 13, 2015.”
After discussing the “good cause” standard set forth in 20 C.F.R. §§ 404.911
and 416.1411, the Vargas court observed, “[a]s further guidance, the Social Security
Administration’s Hearings, Appeals, and Litigation Law Manual (‘HALLEX’)
provides examples of the types of circumstances constituting good cause for an
extension of time. See HALLEX I–3–0–60(E)(3).

According to HALLEX, for

instance, good cause for an extension of time may exist where ‘[t]he claimant relied

on a representative to timely file a request, and the representative failed to do so.’
Id.” 2014 WL 6384150, at *4 (footnote omitted). The court then determined, “under
the circumstances” of that case, that the Appeals Council had abused its discretion
in not finding good cause to excuse late filing of the claimant’s request for review, as
follows:
In this case, the Appeals Council gave three reasons why it found that
Plaintiff had not shown good cause for extending the deadline for filing
her request for review by two days. First, the Appeals Council noted
that the Notice of Decision was mailed to valid addresses for both
Plaintiff and her counsel on June 8, 2012, the date the ALJ issued his
decision (thus the 65–day filing deadline was August 13, 2012, but
Plaintiff filed her request for review on August 15, 2012). Second, the
Appeals Council found that there was no evidence that those addresses
had been changed before the filing deadline, and Plaintiff had listed
those same addresses on her untimely request for review. Lastly,
although Plaintiff's counsel swore he had received the Notice of
Decision eight days after the date it was issued (and not within the
presumptive 5–day window), the Appeals Council found that there was
no evidence that Plaintiff had failed to receive the Notice of Decision
within the presumptive 5–day window. Thus, the Appeals Council
determined it had no reason to believe that Plaintiff had also received
the Notice of Decision late and, consequently, no good cause existed to
extend the filing deadline.
On appeal to this Court, Plaintiff argues-and the undersigned agreesthat the Appeals Council’s no-good-cause determination was an abuse
of discretion given the facts of this case. To begin with, the record
shows that Plaintiff's request for review was filed only two days late.
The record also shows, moreover, that the Appeals Council's
subsequent actions (and inactions) lulled Plaintiff and her counsel into
believing that her request for review had been accepted as timely and
was being reviewed on the merits. For example, instead of notifying
Plaintiff in a reasonably timely manner that her request for review
(filed on August 15, 2012) was considered late, the Appeals Council
sent Plaintiff a letter dated September 10, 2012 inviting her to submit
new evidence or “a statement about the facts and the law in this case”
within 25 days of the date of the letter. The effect of this letter-sent
less than one month after Plaintiff had filed her request for review-was
twofold. First, it caused Plaintiff to expend even more time and

resources working on the merits of her appeal. Second, it misled
Plaintiff and her counsel into believing that her appeal was being
reviewed on its merits when, in fact, it was not.
In response to the Appeals Council's invitation for more information,
on October 5, 2012, Plaintiff filed a Memorandum in Support of
Request for Review, which began with this opening statement: “This
case is before the Appeals Council pursuant to a timely request for
review.”7 Despite this statement evincing Plaintiff's belief that her
request for review had been filed timely, the Appeals Council still
made no effort at or around that time to inform Plaintiff that it deemed
her request for review to be untimely.
FN7 – Plaintiff's Memorandum goes on to set forth a thoughtful
discussion (which does not appear to have been written
overnight) as to why Plaintiff believed that the ALJ erred. Why
the Appeals Council would ask Plaintiff to continue working on
the substance of her appeal, when it ultimately believed that the
appeal was procedurally deficient, is troubling.
Indeed, it was only after this back-and-forth-and after more than a
year had passed since Plaintiff had filed her request for review-that
the Appeals Council first notified Plaintiff via a letter dated September
25, 2013 that her request for review had been filed two days too late.8
In response to the Appeals Council's invitation for an explanation as to
why her request for review had been filed late, on October 1, 2013,
Plaintiff submitted a Statement of Good Cause for Late Filing to the
Appeals Council. According to the Statement, Plaintiff's request for
review was timely (or good cause for an extension existed) because it
had been filed within 60 days of the date that Plaintiff's counsel had
actually received the Notice of Decision. To corroborate the Statement,
Plaintiff's counsel submitted an affidavit, together with other
documentation, showing that he had not received the Notice of
Decision within 5 days of the date on it, but rather within 8 days, and
that he had filed Plaintiff's request for review within 60 days of the
day he received it. Although the Appeals Council appeared to accept
Plaintiff's counsel's explanation that he had not received the Notice of
Decision within the 5–day presumptive window, it nonetheless
dismissed Plaintiff's request for review as untimely without good cause
because Plaintiff had failed to show that she too had received the
Notice of Decision late.
FN8 – Conspicuously absent from this letter was any mention of
the fact that the Appeals Council had previously invited

Plaintiff to submit new evidence and argument related to the
merits of her appeal, and that Plaintiff had obliged the Appeals
Council's request by preparing and filing an additional
memorandum.
The undersigned finds the Appeals Council's dismissal to be arbitrary
and unreasonable under the circumstances. Not only did the Appeals
Council fail to appreciate the foregoing circumstances surrounding
Plaintiff's filing of her request for review-including its own yearlong
delay in notifying Plaintiff that her request for review was untimely,
during which Plaintiff expended additional time and resources on the
merits of her appeal-but it also overlooked its own policy statements
about when good cause for extending the filing deadline may exist.
Indeed, HALLEX I–3–0–60(E)(3) specifically states that good cause
may exist where “[t]he claimant relied on a representative to timely
file a request, and the representative failed to do so.”
Based on the record before the Court, that is exactly what happened in
this case. Plaintiff relied on her lawyer to file her request for review on
time, but her lawyer failed to do so because of his late receipt of the
Notice of Decision. Defendant's sole response to this point is to
emphasize that HALLEX I–3–0–60(E)(3) merely provides examples of
when good cause “may” exist. Defendant also cites a note to HALLEX
I–3–0–60(E)(3), which states that: “The [Appeals Council] must not
infer good cause for late filing merely because a claimant has a
representative, but must consider a claimant's good cause statement
indicating reliance on a representative.” According to Defendant, the
Appeals Council's dismissal was not arbitrary or unreasonable because
Plaintiff never submitted a personal statement indicating reliance on
her lawyer to file her appeal on time.
Defendant's arguments, however, ring hollow. Although Plaintiff's
Statement of Good Cause for Late Filing did not expressly state that
she had relied on her lawyer to file her request for review on time and
that he failed to do so, it does indicate as much. Tellingly, the
Statement and its supporting documentation, like all the other
relevant papers Plaintiff filed in this case, were all filed by Plaintiff's
counsel on her behalf. To fault Plaintiff for failing to take an additional
and unrequired step of filing her own affidavit or other documentation
expressly stating that she had relied on her lawyer to timely file her
request for review, especially when Plaintiff's Statement already
indicated as much, is arbitrary and unreasonable.

Vargas, 2014 WL 6384150, at *4-6 (record citations and one footnote omitted)
(emphasis added).
For several reasons, the Court does not find Vargas’s reasoning persuasive in
this action.

First, Quarles relies heavily on Vargas’s determination that the

Appeals Council abused its discretion when, among other considerations, it
“overlooked its own policy statements” in the HALLEX regarding reliance on a
representative to timely file a request for review.

However, HALLEX is an SSA

internal manual that “does not carry the authority of law.” E.g., Newton v. Apfel,
209 F.3d 448, 459 (5th Cir. 2000). 5 The undersigned has recently declined to
consider a claim that the Commissioner’s alleged violation of a HALLEX procedure
constituted reversible error because that document does not have the force of law so
as to bind the Commissioner. See Brownlow v. Colvin, Civil Action No. 15-00392-N,
2016 WL 814953, at *5 n.7 (S.D. Ala. Feb. 29, 2016). Though no binding precedent
currently exists on the issue, the undersigned based this determination on “the
greater weight of current circuit authority,” id. (citing, e.g., Davenport v. Astrue, 417
F. App’x 544, 547 (7th Cir. Mar. 30, 2011) (per curiam) (unpublished) (“Circuits are
split over whether the HALLEX creates enforceable rights.” (citing Second, Sixth,
Ninth, and D.C. Circuit authority as holding it does not, with only the Fifth Circuit
As Vargas itself noted, “HALLEX, among other things, ‘defines procedures for carrying out
policy and provides guidance for processing and adjudicating claims at the hearing, Appeals
Council, and civil action levels.’ HALLEX I–1–0–1. ‘It also includes policy statements
resulting from Appeals Council en banc meetings under the authority of the Appeals
Council Chair.’ Id.” Vargas, 2014 WL 6384150, at *4 n.5. “The text of [HALLEX I-1-0-1,
entitled “PURPOSE,”] indicates that HALLEX is strictly an internal guidance tool,
providing policy and procedural guidelines to ALJs and other staff members. As such, it
does not prescribe substantive rules and therefore does not carry the force and effect of
law.” Moore v. Apfel, 216 F.3d 864, 868 (9th Cir. 2000).

5

holding that prejudicial violations of the HALLEX can entitle a claimant to relief)),
and the Eleventh Circuit’s determination, albeit unpublished,6 that another SSA
internal document, the Program Operations Manual System (POMS), “does not
have the force of law, and, therefore, the Commissioner’s alleged failure to adhere to
the POMS does not” create an enforceable right. Wells v. Comm'r of Soc. Sec., 430
F. App'x 785, 786 (11th Cir. 2011) (per curiam) (unpublished).

See also Am.

Trucking Ass'n, Inc. v. United States, 688 F.2d 1337, 1341 (11th Cir. 1982)
(“Nonlegislative rules are those not promulgated pursuant to a power to issue
regulations with binding effect; they are merely an expression of how the agency
interprets and intends to enforce its governing statute, how it intends to exercise
a discretionary function, or the procedure an agency intends to use in exercising
its powers.”), rev'd on other grounds, I.C.C. v. Am. Trucking Ass’ns, Inc., 467
U.S. 354 (1984); Lyng v. Payne, 476 U.S. 926, 937 (1986) (“[N]ot all agency
publications are of binding force…”); Owens v. Heckler, 748 F.2d 1511, 1516 n.5
(11th Cir. 1984) (per curiam) (“The claimant's first argument presumes, of
course, that the judiciary has the power to hold the agency to its own rules. Such
is not always the case. See Schweiker v. Hansen, 450 U.S. 785, 789–90, 101 S.
Ct. 1468, 1471, 67 L. Ed. 2d 685 (1981) (concluding that claims manual rules
promulgated for claims representatives do not bind the SSA). Indeed, were we
faced only with a claim based on a claims manual rule, Hansen would preclude
In this Circuit, “[u]npublished opinions are not considered binding precedent, but they
may be cited as persuasive authority.” 11th Cir. R. 36-2. See also Henry v. Comm'r of Soc.
Sec., 802 F.3d 1264, 1267 n.1 (11th Cir. 2015) (per curiam) (“Cases printed in the Federal
Appendix are cited as persuasive authority.”).

6

us from announcing that the Administration must be bound by it.” (dicta)).
Neither Vargas nor Quarles’s arguments persuade the undersigned to depart
from this previous determination.7 Because the HALLEX is not binding on the
Commissioner, to the extent she deviated from its terms in Quarles’s case, this
does not constitute a reversible abuse of discretion.
Even assuming that the HALLEX is binding on the SSA, 8 the Appeals
Counsel did not violate the provision discussed in Vargas.

Immediately after

Quarles cites, albeit in a footnote and without explanation, to Howard v. Astrue, 505
F. Supp. 2d 1298 (S.D. Ala. 2007) (Cassady, M.J.). In Howard, another judge of this
district, adopting the minority reasoning of the Fifth Circuit without examining the
contrary reasoning of other circuits, found that a prejudicial violation of the HALLEX
constituted reversible error. See 505 F. Supp. 2d at 1301-02 (citing Newton v. Apfel, 209
F.3d 448, 459 (2000) (“While HALLEX does not carry the authority of law, this court has
held that ‘where the rights of individuals are affected, an agency must follow its own
procedures, even where the internal procedures are more rigorous than otherwise would be
required.’ … Should a violation of the HALLEX prejudice the claimant, ‘the result cannot
stand.’ ” (quoting Hall v. Schweiker, 660 F.2d 116, 119 (5th Cir. Sept. 9, 1981) (per
curiam))).
First, the Court is in no way bound to follow Howard’s reasoning. See United States
v. Cerceda, 172 F.3d 806, 812 n.6 (11th Cir. 1999) (en banc) (per curiam) (“The opinion of a
district court carries no precedential weight, even within the same district.”). Second, the
judge in Howard appears to have been particularly swayed by the strong exhortations of
Hall v. Schweiker, which is binding authority in this Circuit, see Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), and would seem to support the
determination that a HALLEX violation can constitute a basis for reversible error, at least
where prejudice is shown. However, since Howard was decided, the Eleventh Circuit has
(1) rejected a similar argument regarding the POMS, another non-binding internal SSA
manual, see Wells, 430 F. App'x at 786-87 (“Wells’s reliance on Hall v. Schweiker, 660 F.2d
116 (5th Cir. 1981), is misplaced, because, unlike the ruling at issue in Hall, the POMS
does not constitute formal rules that bind the SSA. See … Hall, 660 F.2d at 119 n.4
(addressing Social Security Ruling 79–19 and noting that Social Security Rulings ‘are
binding on all components of the Administration’) (quotations omitted).” (footnote omitted));
and (2) expressed skepticism that the Commissioner is bound to follow the HALLEX, see
infra, n.8.

7

The Eleventh Circuit has previously characterized this as “a very big assumption.”
George v. Astrue, 338 F. App'x 803, 805 (11th Cir. 2009) (per curiam) (unpublished) (even if
HALLEX was binding, ALJ did not contravene its procedures).

8

stating that good cause may be shown where “the claimant relied on a
representative to timely file a request, and the representative failed to do so,”
HALLEX further provides: “The AC must not infer good cause for late filing merely
because a claimant has a representative, but must consider a claimant’s good cause
statement indicating reliance on a representative.” HALLEX I–3–0–60(E)(3), 1995
WL 1671770. Quarles herself submitted no good cause statement to the Appeals
Council, and her representative’s good cause statement did not include “reliance on
a representative” as a ground to excuse the tardy filing. Thus, under the plain
terms of the HALLEX, the Appeals Counsel did not err, much less abuse its
discretion, in failing to infer such a reason.9
Moreover, consideration of the HALLEX was only part of the Vargas court’s
reasoning in finding an abuse of discretion. Vargas explicitly found “an abuse of
discretion given the facts of th[at] case[,]” 2014 WL 6384150, at *4 (emphasis
added), which were far more egregious than those present here. In this case, (1) the

Similarly, the Court rejects Quarles’s insinuation, made in a footnote, that, prior to
dismissing her request for review, the Appeals Council was required to scour her
administrative record, take note of evidence therein indicating that she has been diagnosed
with lifelong mental retardation, and thus infer that “mental[ or] educational … limitations
… prevented [Quarles] from filing a timely request or from understanding or knowing about
the need to file a timely request for review.” 20 C.F.R. §§ 404.911(a)(4), 416.1411(a)(4). The
Social Security regulations are clear that a claimant is responsible for stating “the reasons
why the request for review was not filed within the stated time period” in her request for
extension and bears the burden of “show[ing] that [she] had good cause for missing the
deadline.” 20 C.F.R. §§ 404.968(b), 416.1468(b). See also Social Security Ruling (SSR) 915P, 1991 WL 208067, at *2 (July 1, 1991) (“When a claimant presents evidence that
mental incapacity prevented him or her from timely requesting review of an adverse
determination, decision, dismissal, or review by a Federal district court, and the claimant
had no one legally responsible for prosecuting the claim (e.g., a parent of a claimant
who is a minor, legal guardian, attorney, or other legal representative) at the time of the
prior administrative action, SSA will determine whether or not good cause exists for
extending the time to request review.” (emphasis added)).

9

record indicates that Quarles’s request for review was not received by the Appeals
Council until almost two months after the deadline (significantly longer than the
two days’ tardiness in Vargas); (2) the Appeals Council gave reasonably prompt
notice that the request for review was deemed late and allowed Quarles thirty days
to show good cause for the late filing (R. 9 – 10) (unlike the Appeals Council in
Vargas, who initially misled the claimant and her representative into believing that
it was reviewing the merits of the untimely request for review); and (3) Quarles’s
representative submitted no documentation with his brief Statement of Good Cause
to support his representation that he had “faxed [the request for review] to [the
Appeals Council] on January 14, 2015” (R. 7) (unlike the representative in Vargas,
who submitted “an affidavit, together with other documentation,” to support his
Statement of Good Cause). See Waters, 184 F. Supp. 2d at 1341-42 (finding no
abuse of discretion in Appeals Council’s denial of untimely request for review
where, inter alia, the claimant did not submit any affidavits or other evidence
supportive of her alleged attempt to timely request review). Indeed, the notice sent
by the Appeals Council indicating that Quarles’s request for review was deemed
tardy stated that Quarles “should send … any evidence that supports [her]
explanation” of good cause. (R. 9).10

In sending Quarles reasonably prompt notice of her untimely request for review and
granting her an opportunity to show good cause for the untimely request, the Appeals
Council acted much more diligently than in Waters, where the district court nevertheless
found no abuse of discretion in the Council’s dismissal of an untimely request for review.
There, the claimant’s representative filed the request for review, and a request for
extension of time to do so, in July 1998. The Appeals Council did not respond to the
requests until December 28, 1999, when it issued an order denying the request for
extension and dismissing the request for review as untimely. During the intervening 18-

10

Additionally, in Vargas, the tardy filing was due to the representative’s late
receipt of notice of the ALJ’s unfavorable decision, a circumstance seemly beyond
the representative’s control; moreover, it appears the representative diligently
attempted to secure timely review based on the date he received the notice. The
record here does not show similar diligence.

Accepting the representations of

Quarles’s representative that he or his assistant first faxed the request for review
on January 14, 2015, that left the representative nine days to follow up and make
sure the request had been timely received and processed. The representative did
not do so, however, until almost two months after the deadline had passed.
Quarles has failed to convince the Court that the Commissioner abused her
discretion in denying an extension of time to file her request for review.
Accordingly, the Court OVERRULES Quarles’s assertions of error in Claim 1.
B.

Claim 2 (New and Material Evidence)

Quarles argues, in the alternative, the remand should be ordered under
sentence six of § 405(g) for the Appeals Council to consider new and material
evidence bearing on its dismissal.

This evidence consists of an affidavit, dated

November 13, 2015, sworn by the office manager of Quarles’s administrative
representative, which avers: “On January 14, 2015, I faxed an appeal to the Appeals

month period, the claimant’s representative submitted to the Council additional medical
records on six occasions and two letter inquiries as to the status of the appeal, with the
Council issuing no response to any of these submissions. Waters, 184 F. Supp. 2d at 133536, 1342. While finding “such silence disturbing, particularly from an agency which is not
supposed to be in an adversarial role vis-a-vis disability claimants[,]” the Waters court
nevertheless found that “the Appeals Council’s action or, more accurately, inaction, does not
rise to the level of misleading Plaintiff that her request for review was timely or would be
considered as such.” Id. at 1342.

Counsel on behalf of Jennifer Quarles … I inquired with the Appeals Council on
March 13, 2015, and was told there was no record of the appeal. I re-submitted the
appeal by fax on that date.” (Doc. 11-2 at 1). Attached to the affidavit are an
additional copy of the March 13, 2015 telecopier cover sheet (id. at 2) found in the
administrative record accompanying the late-filed request for review; another
telecopier cover sheet dated January 14, 2015, purportedly faxed to the Appeals
Council along with a timely request for review on that same date (id. at 3); and a
letter from Quarles’s administrative representative dated November 13, 2015,
informing her present counsel that he cannot find a “way to replicate the fax
confirmation that is missing in [Quarles’s] file” and submitting the affidavit and
telecopier cover sheets “in the absence of this proof” (id. at 4).
In order to prevail on a claim that [a sentence-six ]remand is
appropriate, a claimant must establish that: “(1) there is new,
noncumulative evidence; (2) the evidence is ‘material,’ that is, relevant
and probative so that there is a reasonable possibility that it would
change the administrative result, and (3) there is good cause for failure
to submit the evidence at the administrative level.” Milano v. Bowen,
809 F.2d 763, 766 (11th Cir. 1987)…
Hyde v. Bowen, 823 F.2d 456, 459 (11th Cir. 1987).
“There is no doubt that [Quarles’s] evidence is new and noncumulative. It is
‘new’ in that it was not previously before the A[ppeals Council].

It is

‘noncumulative’ as it provides … evidence in support of [Quarles’s] allegations of
[good cause to excuse her tardy request for review]— … evidence which the A[ppeal
Council] previously had found to be wanting.” Id. Also, “the evidence is ‘material’
in that there is a reasonable possibility that the new evidence would change the

administrative outcome[,]” id., since a lack of evidence to support her good cause
statement was the sole stated reason given by the Appeals Council for failing to
grant Quarles additional time to request review.

Thus, if Quarles shows “good

cause for failure to submit the evidence” to the Appeals Council, she is due a
sentence-six remand.
Quarles asserts that there is good cause for her failure to submit the office
manager’s affidavit because it “did not exist at the time of the administrative
proceedings…” Id. Accord, e.g., Cannon v. Bowen, 858 F.2d 1541, 1546 (11th Cir.
1988) (“[T]here is good cause for failing to present the evidence because it did not
exist at the time of the administrative hearing or the district court proceedings.”).
Quarles bases this assertion solely on the fact that the affidavit itself post-dates the
Appeals Council’s order of dismissal and was thus “not in existence or available to
the claimant at the time of the administrative proceeding.”
This argument, however, elevates form over substance.

An affidavit is a

“voluntary declaration of facts written down and sworn to by the declarant before
an officer authorized to administer oaths…” Black’s Law Dictionary (8th ed. 2004).
Technically speaking, the “facts written down and sworn to” in the affidavit are
evidence, while the affidavit is simply an instrument for presenting that evidence.11

The cases Quarles cites in support of her Claim 2 argument concerned reports of medical
evaluations occurring after the Commissioner’s final decision was rendered – thus, neither
the reports themselves, nor the information in those reports, was available at the
administrative level. See Jones v. Colvin, No. 1:11CV989-WC, 2013 WL 842704, at *4 (M.D.
Ala. Mar. 6, 2013) (“Plaintiff argues there is good cause for her failure to submit the
evidence at the administrative level because the evidence was not available at that time.
Indeed, the parties agree the evaluation was not performed and Dr. George’s report was not
generated until after the Appeals Council had declined review.”); Mitchell v. Apfel, Civil

11

“Here, … the evidence” – i.e., the office manager’s factual knowledge, as well as the
January 14, 2015 telecopier cover sheet – “was available at the administrative
proceeding; it simply was not considered by the Appeals Council because it was not
timely filed.” Milano, 809 F.2d at 767.
Nevertheless, the fact that evidence may have been available at the time of
the administrative proceedings does not foreclose a finding of “good cause” for
failure to present it there. As the Commissioner points out,
the good cause requirement reflects a congressional determination to
prevent the bad faith manipulation of the administrative process. The
requirement was designed to prevent claimants from attempting to
withhold evidence “with the idea of ‘obtaining another bite of the apple’
if the [Commissioner] decides that the claimant is not disabled.”
Szubak v. Secretary of Health and Human Services, 745 F.2d 831, 834
(3d Cir. 1984) (citation omitted). The good cause requirement was
designed to avoid the danger of “encouraging claimants to seek afteracquired evidence, and then use such evidence as an unsanctioned
‘backdoor’ means of appeal.” Id.
Id.

In Milano, the claimant mailed additional medical evidence to the Appeals

Council one day after the extension that she had been granted to submit additional
evidence had expired. “The supplemental items submitted to the Appeals Council
… were neither included in the administrative record nor mentioned when the
request for review was denied.” Id. at 765. While “recogniz[ing] that good cause for
failing to present evidence may exist where the evidence did not exist at the time of
the administrative proceeding[,]” the Eleventh Circuit determined that the
claimant’s “evidence was available at the administrative proceeding; it simply was

Action No. 98-W-1160-N, 1999 WL 33100499, at *1-2 (M.D. Ala. Sept. 17, 1999) (finding
“good cause” to remand under sentence six based on the report of a psychological evaluation
conducted nearly seven months after the district court action was filed).

not considered by the Appeals Council because it was not timely filed.” Id. at 76667.
The Eleventh Circuit “nonetheless conclude[d] that a filing that was mailed
one day after the extended time period … satisfies the good cause requirement of §
405(g).” Id. at 767. The court explained, inter alia:
[W]e believe that the good cause requirement reflects a congressional
determination to prevent the bad faith manipulation of the
administrative process. The requirement was designed to prevent
claimants from attempting to withhold evidence “with the idea of
‘obtaining another bite of the apple’ if the Secretary decides that the
claimant is not disabled.” Szubak v. Secretary of Health and Human
Services, 745 F.2d 831, 834 (3d Cir. 1984) (citation omitted). The good
cause requirement was designed to avoid the danger of “encouraging
claimants to seek after-acquired evidence, and then use such evidence
as an unsanctioned ‘backdoor’ means of appeal.” Id. Milano’s de
minimus procedural default does not reflect any bad faith attempt to
manipulate the administrative process. Indeed, it suggests an attempt,
though unsuccessful, to fully comply with administrative
requirements.
Id.
The record in this case also does not “reflect any bad faith attempt to
manipulate the administrative process.” Nothing in the Appeals Council’s dismissal
order indicates that there were credibility issues with Quarles’s representative or
the representations in his good cause statement. Rather, the Appeals Council’s sole
given reason for not finding good cause to extend the time to request review was
that the representative had “not provided evidence that the informal request for
review was actually submitted to the Council prior to March 13, 2015.” (R. 4).
However, neither the Appeals Council at the administrative level, nor the
Commissioner here, has cited any authority under which a claimant’s statement of

good cause is required to be supported by contemporaneously submitted evidence. 12
The regulations governing requests for extension of time to request review require
only that such a request “be in writing,” “be filed with the Appeals Council,” and
“give the reasons why the request for review was not filed within the stated time
period.” 20 C.F.R. §§ 404.968(b), 416.1468(b). Quarles’s representative’s good cause
statement clearly meets those requirements. The regulations governing the “good
cause” standard are also silent on any evidentiary requirements.

20 C.F.R. §§

404.911 and 416.1411.13 As with the Milano claimant, the record here “suggests an
attempt, though unsuccessful, to fully comply with administrative requirements.”
In its notice to Quarles that her request for review had been filed late, the
Appeals Council did advise: “You should send us a statement showing the reason(s)
why you did not file the request for review within 60 days. You should send us any
evidence that supports your explanation.” (R. 9). However, this provision does not
clearly indicate that statements of good cause must always be supported by
evidence, such the failure to include evidence, standing alone, would be fatal to a
request for extension.14
The Commissioner’s brief cites no such authority, nor could counsel for the Commissioner
identify any such authority at oral argument when asked.

12

The HALLEX is similarly silent as to requiring a request for extension of time to be
supported by evidence. See HALLEX I-3-0-60(E), 1995 WL 1671770. Under SSR 91-5P, the
Commissioner does require “evidence that mental incapacity may have prevented [a
claimant] from understanding the review process.” 1991 WL 208067, at *2. However,
Quarles did not rely on mental incapacity in her statement of good cause.

13

Indeed, the Appeals Council’s request to be sent “any evidence,” rather than simply
“evidence,” appears to assume that there may be some situations in which there is no
evidence to support an explanation.

14

Because it was not clear at the administrative level that she was required to
support her statement of good cause with evidence, and because that was the
Appeals Council’s sole ground for denying her an extension of time to request
review, the Court finds good cause here for Quarles’s failure to present the office
manager’s testimony and supporting exhibits to the Appeals Council.15 Accordingly,
this case is due to be REMANDED to the Commissioner under sentence six of §
405(g). On remand, the Commissioner shall consider Quarles’s new evidence (Doc.
11-2) in determining whether she is due an extension of time to request review
under 20 C.F.R. §§ 404.968(b), 416.1468(b).16
V.

Conclusion

In accordance with the foregoing analysis, it is ORDERED that Quarles’s
case is REMANDED to the Commissioner under sentence six of 42 U.S.C. §
405(g) for proceedings consistent with this opinion. The Commissioner is reminded
of her obligations to “file with the court any … additional and modified findings of
fact and decision, and, [if] the Commissioner has not made a decision fully favorable
This determination might seem to be inconsistent with the Court’s reasoning in Claim 1.
However, Claim 1 was decided under a deferential “abuse of discretion” standard. Quarles
raised no argument challenging the Appeals Council’s requirement of evidence, and given
that the notice of tardy filing made some mention of presenting supporting evidence,
Quarles failed to meet her burden of showing an abuse of discretion in the Appeals
Council’s stated reason for denying an extension of time. In contrast, “[t]he judicial
determination of whether new evidence renders appropriate a remand to the
[Commissioner] is a de novo proceeding.” Hyde, 823 F.2d at 458-59.

15

As in Milano, this Court finds remand to be appropriate “on the particular facts
presented in this case…” Milano, 809 F.2d at 767. The Court emphasizes that Quarles’s
new evidence is relevant to “the reasons why [her] request for review was not filed within
the stated time period” that she actually presented to the Appeals Council prior to its
dismissal of her request for review. This opinion in no way stands for the proposition that
“sentence six” remands can be used as a matter of course to raise additional “reasons” that
could have been, but were not, presented at the administrative level.

16

to [Quarles], a transcript of the additional record and testimony upon which the
Commissioner’s action in modifying or affirming was based.” 42 U.S.C. § 405(g).17
DONE and ORDERED this the 10th day of August 2016.
/s/ Katherine P. Nelson
KATHERINE P. NELSON
UNITED STATES MAGISTRATE JUDGE

“In a sentence-six remand, the statutory provision itself specifically requires the
Commissioner to return to district court to file additional or modified findings of fact after
the new evidence is heard. Because the parties must return to district court after the
remand proceedings to file the Commissioner’s findings of fact, the district court retains
jurisdiction over the case throughout the remand proceedings. Thus, unlike a sentence-four
remand, a sentence-six remand is not a final judgment under the EAJA, and the window for
filing an EAJA fee application does not open until judgment is entered in the district court
following completion of the remand proceedings.” Jackson v. Chater, 99 F.3d 1086, 1095
(11th Cir. 1996) (citations omitted) (citing Melkonyan v. Sullivan, 501 U.S. 89, 98-99, 102
(1991)).

17