Cotton v. Social Security Administration

Filing 18

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that the motion of Carolyn W. Colvin, the Acting Commissioner of Social Security, to dismiss the complaint is GRANTED. [Doc. 16 ] An appropriate Order shall accompany this Memorandum and Order. Signed by Magistrate Judge Thomas C. Mummert, III on 06/03/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ELNORA COTTON, on behalf of
Tessie Cotton,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case number 4:13cv2412 TCM

MEMORANDUM AND ORDER
Elnora Cotton brings this action on behalf of her deceased daughter, Tessie Cotton,
seeking judicial review of the denial of Tessie Cotton's application for disability insurance
benefits (DIB) under Title II of the Social Security Act (the Act), 42 U.S.C. § 401-433.
Defendant, Carolyn W. Colvin, the Acting Commissioner of Social Security, moves to dismiss
the complaint for failure to exhaust administrative remedies.1 Her motion is unopposed.
Background
Tessie Cotton (Plaintiff) applied for Title II benefits in October 2011, alleging a
disability onset date in June 2003 caused by hot flashes, black-outs, and extreme difficulty
walking. (Nicoll Decl. ¶ 3(a), ECF No. 16-1; Def.'s Ex. 1 at 1, ECF No. 16-2; Def.'s Ex. 3
at 1, ECF No. 16-4.) She was last insured on December 31, 2004. (Def.'s Ex. 1 at 2.) There
was no medical evidence submitted in support of her application. (Def.'s Ex 1 at 2; Def.'s Ex.
3 at 1.)

The case is before the undersigned United States Magistrate Judge by written consent of the
parties. See 28 U.S.C. § 636(c).
1

Plaintiff died on February 22, 2012. (Def.'s Ex. 2; ECF No. 16-3.) The listed causes
of death were septic shock, pneumonia, emphysema, and acute respiratory disease syndrome.
(Id.)
On April 25, 2012, Plaintiff's application was denied. (Def.'s Ex. 1 at 1.) A letter
confirming the decision was sent the next day to Plaintiff at an address on Newby Street in
St. Louis, Missouri. (Def.'s Ex. 3 at 1-3.)
The Newby Street address was listed on a Request for Hearing by Administrative Law
Judge (ALJ) dated August 29, 2012. (Id. at 4.) This request is signed by a representative for
Plaintiff and enclosed with a letter from the representative, Christopher O'Connor, explaining
that Plaintiff's mother wished to proceed to the hearing level and that an appeal had been filed
in May 2012 but "[did] not appear to have been processed." (Id.; Def.'s Ex. 3 at 5.) Also
enclosed was a copy of a letter dated May 22, 2012, requesting a hearing and stating that an
online appeal would "be completed shortly." (Id. at 6.) This letter referred only to Plaintiff
and stated that Mr. O'Connor had recently been contacted by her about her DIB claim. (Id.)
It also states that it was transmitted by fax. (Id.)
By decision dated October 22, 2012, an ALJ dismissed the request for a hearing.
(Def.'s Ex. 4, ECF No. 16-5.) The ALJ noted that a request must be filed within sixty days
of the date the claimant received notice of the adverse decision or, if an extension has been
granted, within the extended period. (Id. at 4.) The request at issue had been filed more than
four months after the decision. (Id.) The ALJ further noted Mr. O'Connor's explanation that
a request had been made within one month of the decision, but found this explanation did not
establish the necessary good cause for missing the deadline. (Id. at 4-5.) The ALJ found the
May 2012 letter could not be accurate because Plaintiff had died three months earlier and,
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therefore, could not have contacted Mr. O'Connor as represented. (Id.) And, no May 2012
letter was received by the field office and no online appeal was filed. (Id.) Elnora Cotton did
not sign a substitution of party until July 2012, which was after the period for requesting a
hearing had passed. (Id.) The ALJ also noted that Mr. O'Connor had "admitted that the May
22, 2012 letter was just a generic statement in his letters and that he would provide a more
colorful good cause letter later. However, the letter dated August 29, 2012 did not provide
any information explaining how the deceased claimant contacted him in May 2012 to file an
appeal." (Id.)
By letter dated December 13, 2012, Mr. O'Connor filed a request for review of the
ALJ's decision. (Def.'s Ex. 5 at 1, ECF No. 16-6.) This timely request was accompanied by
a letter explaining the delay in requesting a hearing as follows.
On 6/6/2012 our appeal specialist attempted to contact [Plaintiff] to complete
this appeal so that it would be filed within the 65 day appeal window. We were
then notified by [Plaintiff's] mother that unfortunately [Plaintiff] passed away
on 2/17/2012. Thereafter [Plaintiff's] mother wished to pursue the claim in
[Plaintiff's] behalf. Because of [Plaintiff's] passing and the length of time it
took for all substitute party paperwork to be signed and returned to our office
this appeal was filed beyond the 65 day appeal window.
(Id. at 2.) There is no reference to a May 2012 letter in the explanation. (Id. at 2-3.)
On December 26, 2012, Elnora Cotton's current counsel sent an Appointment of
Representative Form, a Request for Hearing by ALJ, and an Attorney's Employment Contract
to the Social Security Administration. (Id. at 7-12.) The enclosed completed forms were all
dated August 18, 2011.2 (Id. at 8-12.) The cover letter states they were originally faxed on

No explanation has been offered for how a request for a hearing could be made two months
before the DIB application was filed.
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August 22, 2011. (Id. at 7.) The Request for Hearing form appears to be signed by Plaintiff
and states, "I am unable to work due to back pain [and] depression." (Id. at 11.)
The Appeals Council denied Plaintiff's request for review on September 24, 2013. (Id.
at 4-6.) Notably, the letter did not include any instructions on how to seek judicial review.
(Id.) It was addressed to Ms. Cotton with a copy sent to her current counsel. (Id.)
In her motion, Defendant argues that the case must be dismissed because Ms. Cotton
did not exhaust her administrative remedies when she failed to timely request a hearing before
the ALJ and has not established any basis for a waiver of the exhaustion requirement.
Discussion
"Section 405(g) specifies the following requirements for judicial review: (1) a final
decision of the [Commissioner] made after a hearing; (2) commencement of a civil action
within 60 days after the mailing of notice of such decision (or within such further time as the
[Commissioner] may allow); and (3) filing of the action in an appropriate district court, in
general that of the plaintiff's residence . . . ." Weinberger v. Salfi, 422 U.S. 749, 763-64
(1975). "The second and third of these requirements specify, respectively, a statute of
limitations and appropriate venue. As such they are waivable by the parties . . . ." Id. at 764.
The first requirement is "central to the requisite grant of subject-matter jurisdiction – the
statute empowers district courts to review a particular type of decision by the [Commissioner],
that type being those which are 'final' and 'made after a hearing.'" Id. at 764. See also
Califano v. Sanders, 430 U.S. 99, 108, 109 (1977) (absent a constitutional challenge, judicial
review is limited "to a particular type of agency action, a 'final decision of the [Commissioner]
made after a hearing'") (quoting 42 U.S.C. § 405(g)). The meaning of the term "final

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decision" "is left to the [Commissioner] to flesh out by regulation." Weinberger, 422 U.S.
at 766.
The Commissioner has done so. When explaining in the regulations the administrative
review process, the Commissioner added an explanation of a "[claimant's] right to judicial
review after [the claimant] ha[s] taken all the necessary administrative steps." 20 C.F.R.
§ 404.900(a). It is noted that the administrative review process includes several steps, "which
usually must be requested within certain time periods" and in a specific order. Id.
The first step is the initial determination. 20 C.F.R. § 404.900(a)(1). A determination
whether a claimant is entitled to DIB is an initial determination. 20 C.F.R. § 404.902(a). In
Missouri, the next step is to request a hearing before an ALJ. 20 C.F.R. § 404.900(a)(3),
404.906, 404.929. The request must be in writing and must include the name and social
security number of the wage earner; the reasons for the disagreement with the adverse
decision, a statement of additional evidence to be submitted and the date by which the
evidence will be submitted, and the name and address of any designated representative. 20
C.F.R. § 404.933(a). The request must be made within 60 days after the claimant receives
notice of the adverse decision3 or, if a written request for an extension is made and granted,
within the extended time allowed 20 C.F.R. § 404.933(b), (c). A request for an extension
must explain why the request for a hearing was not made within the stated time period and
must show good cause for the extension request. 20 C.F.R. § 404.933(c).

It is presumed that the date the claimant received notice of the initial determination is five
days after the date of the notice, "unless there is a reasonable showing to the contrary." 20 C.F.R.
§ 422.210.
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In the instant case, the initial determination was made on April 25, 2012. A Request
for Hearing by Administrative Law Judge (ALJ) was dated August 29, 2012 – 125 days later.
It is undisputed that an extension of time was not requested.
Under the Commissioner's regulations, an ALJ may dismiss a request for a hearing if
not made within the 60-day time period or within a granted extended period. 20 C.F.R.
§ 404.957(c)(3). The dismissal of a request for a hearing is binding unless it is vacated by an
ALJ or by the Appeals Council. 20 C.F.R. § 404.959. The ALJ dismissed Plaintiff's request
as untimely filed, finding Mr. O'Connor's explanation unavailing and the May 2012 letter
cited by Mr. O'Connor to be of dubious worth.
The Commissioner's regulations further provide that a claimant may request that the
Appeals Council review a decision by an ALJ. 20 C.F.R. §§ 404.900(a)(4), 404.967. If the
decision is one to dismiss a request for a hearing, the Appeals Council may vacate the
dismissal. 20 C.F.R. § 404.960(a). The request for review must be made within 60 days after
the date the claimant receives notice of the ALJ's decision or within an extended period if one
has been requested and granted. 20 C.F.R. §§ 404.968(a)(1), 404.960(a). If neither the
Appeals Council nor an ALJ vacate the dismissal of a request for review, the dismissal is
binding. 20 C.F.R. § 404.959. The Appeals Council denied Ms. Cotton's request for review.
Judicial review may be sought only when all administrative steps have been taken,
including a hearing before an ALJ. 20 C.F.R. § 404.960(a). The Appeals Council's denial
of a request for review of a decision dismissing a request for a hearing is not subject to
judicial review. 20 C.F.R. § 422.205(c). See Haynes v. Apfel, 2000 WL 84500, *1 (8th Cir.
Jan. 18, 2000) (per curiam) (affirming dismissal for lack of jurisdiction action seeking review
of denial of supplemental security income benefits after ALJ dismissed request for a hearing;
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jurisdiction was lacking because there had been no hearing); Wild v. Astrue, 2008 WL
698483, 3 (D. Minn. Mar. 13, 2008) ("The Court does not find the ALJ's dismissal of
plaintiff's untimely request for a hearing to be a 'final decision made after a hearing' meriting
judicial review under 405(g). Not only was there no hearing, the ALJ's dismissal of plaintiff's
untimely request for a hearing does not constitute a final decision. Therefore, plaintiff did not
receive a 'final decision' from the Commissioner within the meaning of 405(g).").
The Court notes that "the exhaustion requirement may be waived if a [claimant]
establishes (1) a colorable constitutional claim collateral to the substantive claim; (2)
irreparable injury by enforcement of the exhaustion requirement; and (3) that the purpose of
exhaustion would not be served by requiring further administrative procedures." Rodabaugh
v. Sullivan, 943 F.2d 855, 857 (8th Cir. 1991) (emphasis added). There has been no
constitutional claim alleged in the instant case. Rather, the evidence before the Court
establishes that a request for a hearing was simply made too late.
Accordingly,
IT IS HEREBY ORDERED that the motion of Carolyn W. Colvin, the Acting
Commissioner of Social Security, to dismiss the complaint is GRANTED. [Doc. 16]
An appropriate Order shall accompany this Memorandum and Order.

/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 3rd day of June, 2014.

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