Brooks v. Commissioner of Social Security

Filing 33

ORDER denying 30 Motion for summary judgment. Signed by Magistrate Judge Thomas B. Smith on 4/2/2019. (Smith, Thomas)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
YVONE ETHEDIA BROOKS,
Plaintiff,
v.

Case No: 6:18-cv-54-Orl-TBS

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ORDER 1
This case comes before the Court on the Commissioner’s Motion for Judgment on
the Pleadings (Doc. 30) and Plaintiff Yvone Ethedia Brooks’ response in opposition (Doc.
30). Because the motion incorporates by reference the contemporaneously filed
administrative record, the Court converted it to a motion for summary judgment, gave
Plaintiff until January 25, 2019 to supplement her response with any documents within the
purview of Rule 56, and advised the parties that the Court would take the motion under
advisement on February 9, 2019 (Doc. 32 at 2). For the reasons set forth below the
Commissioner’s motion for summary judgment is DENIED.
Background
Plaintiff receives Supplemental Security Income payments from the Commissioner
(Doc. 1, ¶ 3). At an unknown point in time, the Commissioner concluded that she had
overpaid $17,652 in benefits to Plaintiff and decided to withhold money from Plaintiff’s
future installment payments until the overage was recovered (Doc. 16, ¶ 3; Doc. 16-1 at

On May 30, 2018, both parties consented to the exercise of jurisdiction by a magistrate judge
(Doc. 17). The case was referred to me by an Order of Reference that same day (Doc. 18).
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1). On May 3, 2013 the Commissioner sent Plaintiff a letter stating that she had been
overpaid and that $16,301.80 was due and needed to be repaid (Doc. 16-1 at 1). The
letter advised Plaintiff that she had 60 days to request review of the Commissioner’s
decision (Id., at 2).
On June 24, 2013, Plaintiff’s attorney, Randy C. Bryan, sent a letter to the
Commissioner stating that he had been retained by Plaintiff “to represent her in her
appeal of a purported Notice of Overpayment of her SSI benefits” (Doc. 16-2 at 2).
Included with the letter were a formal Request for Reconsideration signed by Plaintiff,
which identified Mr. Bryan as her representative and included his address (Id., at 1). The
letter also enclosed a Consent for Release of Information signed by Plaintiff (Id., at 2). Mr.
Bryan’s transmittal letter to the Commissioner concluded “[s]hould you have any
questions or concerns, or require additional documentation, please do not hesitate to
contact my office. I look forward to hearing from you soon.” (Id., at 2). The Commissioner
received this letter the next day (Id., at 1-2).
Mr. Bryan sent another letter to the Commissioner on September 6, 2013, stating
that he had not received a response to Plaintiff’s request for reconsideration or her
consent to the release of information (Doc. 16-4 at 3). This letter was sent by certified
mail and Plaintiff has produced a receipt showing that it was received by the
Commissioner on September 9, 2013 (Doc. 20-2 at 2). Still, the Commissioner denies
receipt of this letter.
On October 3, 2013 the Commissioner wrote to Plaintiff, informing her that it had
denied her request for reconsideration (Doc. 16-3). The letter also advised Plaintiff that
she had 60 days to request a hearing (Id., at 1). The letter was not copied to Mr. Bryan
and both he and Plaintiff deny receiving it (Doc. 20 at 2).

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Mr. Bryan sent a third letter to the Commissioner on August 21, 2014, advising that
he had not received responses to either of his first two letters (Id., at 2). Included with this
letter was a Request for Hearing by Administrative Law Judge and a request for
“immediate action” (Id.) (emphasis in original). The Commissioner received this letter on
August 22, 2014 (Doc. 16-4).
On March 26, 2015, an administrative law judge (“ALJ”) denied Plaintiff’s request
for a hearing and entered a Notice of Dismissal (Doc. 16-5). In a separate Order of
Dismissal, the ALJ explained that Plaintiff’s request for a hearing came more than 65
days after the denial of her request for reconsideration and was therefore, untimely (Id., at
4). The Notice and Order were not sent to Mr. Bryan.
Plaintiff sent the Commissioner a handwritten letter on June 19, 2015 in which she
complained that she was being treated unfairly by Mr. Bryan and the Commissioner (Doc.
16-6 at 1). She said she needed an opportunity to “get the record straight,” and asked the
Commissioner to vacate the order dismissing her case (Id., at 2). She also said she had
just learned that Mr. Bryan had not filed papers with the Appeals Council and had not
followed up on her appeal (Id., at 1-2).
Because the ALJ’s Order of Dismissal was not sent to Mr. Bryan, the Appeals
Council found good cause for the late filing of Plaintiff’s request for Appeals Council
review (Doc. 16-2 at 2). Then, the Appeals Council found that the ALJ had not abused his
discretion or committed an error of law and denied Plaintiff’s request for review (Id.). The
Commissioner has not explained why the failure to send notice to Mr. Bryan constituted
good cause for the late filing of the request for Appeals Council review, but not good
cause for the late filing of the request for a hearing.

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On January 11, 2018, Plaintiff filed this action for judicial review of the
Commissioner’s decision to garnish her benefits due to the alleged overpayment (Doc. 1).
She claims that she did not receive due process and therefore, the garnishment is illegal
(Id., at ¶ 12). Plaintiff seeks review of the ALJ’s Order of Dismissal and the Appeals
Council’s decision to deny review. She is asking this Court to reverse the Commissioner’s
administrative decision and “issue an Order compelling defendant to schedule a new
administrative hearing …” (Id., at ¶ 20). Plaintiff maintains that the Court has jurisdiction
under 42 U.S.C. §§ 405(g), 1383(c)(3), and 28 U.S.C. § 1361 to grant her relief (Id., ¶ 3).
On May 30, 2018, the Commissioner moved to dismiss this case on the ground
that the Court lacks subject matter jurisdiction (Doc. 15). After due consideration the
Court concluded that it did not have jurisdiction over Plaintiff’s claim for mandamus relief
and that claim was dismissed (Doc. 21). However, the Court found that it does have
subject matter jurisdiction to “review the ALJ’s decision dismissing the request for hearing
as untimely and the Appeals Council’s denial of the request for review.” (Id., at 7) (quoting
Pizarro v. Comm’r of Soc. Sec., No. 6:12-cv-801-Orl-37DAB, 2013 WL 869389, at *6
(M.D. Fla. Jan. 24, 2013)).
The Commissioner has answered the complaint (Doc. 27), filed an electronic copy
of the administrative record (Docs. 28 and 29) and moved for judgment on the pleadings
(Doc. 30). The Commissioner maintains that the ALJ did not abuse his discretion in
dismissing Plaintiff’s request for a hearing and that the Appeals Council properly denied
Plaintiff’s request for review of the ALJ’s dismissal order (Doc. 30). Plaintiff counters that
the presumption that she received correspondence from the Commissioner is not
supported by the record (Doc. 31). The Court advised the parties that they had until

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February 9, 2019 to supplement the record. Neither party filed any supplemental briefing
and the time to do so has expired.
Legal Standard
Summary judgment is appropriate when the movant can show that there is no
genuine issue of material fact and the movant is entitled to judgment as a matter of law.
FED. R. CIV. P. 56(a); Harrison v. Culliver, 746 F.3d 1288, 1297 -1298 (11th Cir. 2014)
(citing Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60 (11th Cir. 2004)).
Which facts are material depends on the substantive law applicable to the case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party bears the
burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986).
Evidence is reviewed in the light most favorable to the non-moving party.
Anderson, 477 U.S. at 255. A moving party discharges its burden on a motion for
summary judgment by showing or pointing out to the court that there is an absence of
evidence to support the non-moving party's case. Denney v. City of Albany, 247 F.3d
1172, 1181 (11th Cir. 2001) (citation omitted).
When a moving party has discharged its burden, the non-moving party must
designate specific facts (by its own affidavits, depositions, answers to interrogatories, or
admissions on file) that demonstrate there is a genuine issue for trial. Porter v. Ray, 461
F.3d 1315, 1321 (11th Cir. 2006) (citation omitted). The party opposing a motion for
summary judgment must rely on more than conclusory statements or allegations
unsupported by facts. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985)
(“conclusory allegations without specific supporting facts have no probative value.”). If
material issues of fact exist that would not allow the Court to resolve an issue as a matter

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of law, the Court must not decide them, but rather, must deny the motion and proceed to
trial. Herzog v. Castle Rock Entm’t, 193 F.3d 1241, 1246 (11th Cir. 1999).
Discussion
The Commissioner will “reconsider an initial determination if [the claimant] or any
other party to the reconsideration files a written request at one of our offices within 60
days after [a claimant] receive[s] notice of the initial determination.” 20 C.F.R. §
416.1409(a). The Commissioner may extend the time to request reconsideration if the
claimant submits a request in a writing that gives the reasons why the request for
reconsideration was not filed within the required time period. Id. at § 416.1409(b). The
Commissioner will extend the time period if the claimant shows that she “had good cause
for missing the deadline,” under the standard articulated in § 416.1411. In determining
“good cause” the Commissioner considers: (1) what circumstances prevented the
claimant from timely requesting a hearing; (2) whether the Commissioner’s actions were
misleading; (3) whether the claimant failed to understand the requirements of
amendments to the Social Security Act, or other legislation or court decisions; and (4)
whether the claimant had any “physical, mental, educational, or linguistic (including any
lack of facility with the English language)” that prevented her from timely filing a request
for a hearing or prevented her from understanding the need to file a timely request. 20
C.F.R. § 416.1411(b). The ALJ may deny an untimely request for a hearing when there is
no good cause. Gonzalez v. Comm’r Soc. Sec., No. 1:09-CV-1093, 2009 WL 4730593, at
*3-4 (N.D. Ohio Dec. 7, 2009).
Plaintiff argues that there is good cause to excuse her untimely request for a
hearing because she and Mr. Bryan did not receive notice of the Commissioner’s adverse
reconsideration decision (Doc. 20 at 2). Plaintiff maintains that the Commissioner erred

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by failing to acknowledge and/or communicate with Mr. Bryan despite being put on notice
that he was representing her on this matter (Id.). The Commissioner concedes that it
never communicated with Mr. Bryan. Still, the Commissioner argues that regardless of
whether Mr. Bryan received notice, the letter was mailed to Plaintiff at her correct address
and was not returned. This, according to the Commissioner, proves that Plaintiff received
the notice, thereby triggering the 60-day response time (Doc. 30).
Title 42 U. S. C. § 406 establishes a claimant’s statutory right to be represented by
counsel before the Commissioner at the administrative level. See Cowart v. Schweiker,
662 F.2d 731, 733-734 (11th Cir. 1981). If no representative makes an appearance on
behalf of a claimant, then the Commissioner has an affirmative duty to provide claimant
written notice of her options for obtaining an attorney to represent her in presenting her
Social Security case. 42 U.S.C. § 406(c). Except for instances of pending disbarment
and/other disciplinary issues the Commissioner will recognize any attorney in good
standing who is admitted to practice before the highest court of the state as legal
representative of a claimant in a Social Security proceeding. 42 U.S.C. § 406(a)(1). “The
representative of the claimant is entitled to the same notice as the claimant.” Cf. 2 Soc.
Sec. Disab. Claims Prac. & Proc. § 19:5.1 (2nd ed.) (citing 20 C.F.R. § 416-1515(b)).
While the Eleventh Circuit Court of Appeals and its member courts have not
decided the issue, other federal courts have held that when the Commissioner is aware
that a claimant is represented by counsel, “the 60-day clock does not start running until
the attorney is notified” even if the claimant received notice. Burch v. Heckler, No. 84 Civ.
3376 (RLC), 1985 WL 2337, at * 3-4 (S.D.N.Y. Aug. 15, 1985) (“The court turns now to
the merits of plaintiff’s claim that the 60-day period for filing commences with notification
of a claimant’s attorney in cases where the claimant is represented by counsel … The

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regulation does not provide that failure to send such notice to the attorney will negate
notice to the claimant, or that the 60-day clock does not start running until the attorney is
notified. But ‘logic and elementary fairness’ dictate precisely those conclusions.”) (citing
Matter of Bianca v. Frank, 43 N.Y.2d 168, 173 (1977) (“Once a party chooses to be
represented by counsel in an action or proceeding, whether administrative or judicial, the
attorney is deemed to act as his agent in all respects relevant to the proceeding. Thus
any documents, particularly those purporting to have legal effect on the proceeding,
should be served on the attorney the party has chosen to handle the matter on his
behalf.”)); see Bartolomie v. Heckler, 597 F. Supp. 1113, 1114 (N.D.N.Y. 1984); cf.
McKentry v. Sec. of Health and Human Svcs., 655 F.2d 721 (6th Cir. 1981).
The Commissioner maintains that “Plaintiff did not submit any authorization for
SSA to release information about her pending overpayment claim to Mr. Bryan or any
other documentation appointing Mr. Bryan as her representative for the overpayment
claim” because the form she used “attempting to authorize SSA to release records to Mr.
Bryan, did not include Mr. Bryan’s signature” (Doc. 30 at 8 n.1). This argument is belied
by the record evidence.
The Commissioner sent Plaintiff a letter notifying her that it had overpaid her
benefits and that she needed to return the overpayment (Doc. 16-1 at 1). Fifty-two days
later, Mr. Bryan, sent a signed letter to Defendant that plainly stated that he had been
retained by Plaintiff to provide representation in appealing the overpayment determination
(Doc. 16-2 at 2; Doc. 28 at 29). Attached to the letter was a formal request for
reconsideration, signed by the Plaintiff, that identified Mr. Bryan as her legal counsel and
listed his name, telephone number, and mailing address; and a “Consent for Release of
Information,” also signed by Plaintiff, that identified Mr. Bryan as her legal representative

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(Docs. 16-2 at 1-2;16-4 at 6-7; Doc. 28 at 31-32). These documents were received by the
Commissioner’s Lake Mary, Florida field office on June 25, 2013 (Doc. 16-2 at 1-2). The
Commissioner’s contention that despite this communication it had no responsibility to
recognize Mr. Bryan because Plaintiff failed to complete a specific form violates the
tenants of the Social Security Act and is a classic example of elevating form over
substance.
The Commissioner was on actual notice as early as June 2013 that Mr. Bryan was
representing Plaintiff. Therefore, the Commissioner was required to provide notice to Mr.
Bryan but failed to do so. Sending the October 3, 2013 letter to Plaintiff – regardless of
whether she received it – is of no consequence if the Commissioner did not send a copy to
Mr. Bryan as Plaintiff’s lawyer. The Commissioner has not explained why it failed to
respond to Mr. Bryan’s September 6, 2013 and August 21, 2014 letters, but these are the
types of question that should have been asked by the Commissioner at the administrative
level as part of a “good cause” inquiry.
The ALJ’s decision to dismiss Plaintiff’s August 21, 2014 request for hearing (Doc.
28 at 12-13) expressly states that Plaintiff is “unrepresented in this matter,” which was
plainly not true. The Commissioner’s repeated failure to acknowledge Mr. Bryan, despite
Plaintiff’s stated request for him to serve as her attorney was an abuse of discretion.
Accordingly, the Commissioner’s Motion for Summary Judgment (Doc. 30) is DENIED.
DONE and ORDERED in Orlando, Florida on April 2, 2019.

Copies furnished to Counsel of Record

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