TRAYNOR v. COMMISSIONER OF SOCIAL SECURITY

Filing 13

OPINION filed. Signed by Judge Noel L. Hillman on 1/4/2016. (drw)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

GRACE L. TRAYNOR,
Plaintiff,
Civil No. 13-1364(NLH)
v.
OPINION
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

APPEARANCES:
GRACE L. TRAYNOR
P.O. BOX 328
DEEPWATER, NJ 08023
Appearing pro se
MONIKA KATHERINE CRAWFORD
OFFICE OF THE US ATTORNEY
SOCIAL SECURITY ADMINISTRATION
26 FEDERAL PLAZA
ROOM 3904
NEW YORK, NY 10278
On behalf of Defendant
HILLMAN, District Judge
This matter comes before the Court pursuant to Section
205(g) of the Social Security Act, as amended, 42 U.S.C. §
405(g), regarding Plaintiff’s application for Disability
Insurance Benefits (“DIB”) under Title II of the Social Security
Act.

42 U.S.C. § 401, et seq.

Defendant has moved to dismiss

Plaintiff’s complaint for lack of subject matter jurisdiction.

Plaintiff, appearing pro se, has opposed Defendant’s motion. 1
I.

BACKGROUND AND PROCEDURAL HISTORY
Plaintiff filed an application for DIB on November 10,

2010.

Following an initial denial and a subsequent denial on

reconsideration on May 5, 2011, Plaintiff timely filed a request
for a hearing by an Administrative Law Judge (ALJ) on June 8,
2011.

A hearing was scheduled for July 26, 2012.

On August 14,

2012, the ALJ issued a Notice of Dismissal of the request for
hearing because Plaintiff had failed to appear at the scheduled
hearing, and she did not provide good cause for such failure to
appear.

Plaintiff timely filed a request for review of the

ALJ’s dismissal.

On December 4, 2012, the Appeals Council

issued a Notice of Appeals Council Action denying Plaintiff’s
request for review of the ALJ’s dismissal.

Plaintiff filed this

action on March 4, 2013.
II.

DISCUSSION
In claims arising under the Social Security Act, judicial

review is permitted only in accordance with sections 205(g) and
(h) of the Social Security Act, 42 U.S.C. §§ 405(g) and (h).
The first sentence of section 405(g) provides that:

1

Plaintiff has also moved for default judgment against
Defendant. Because Defendant timely responded to Plaintiff’s
complaint, Plaintiff’s motion must be denied.
2

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. § 405(g).

Section 405(h) further states that:

No findings of fact or decision of the Commissioner of
Social Security shall be reviewed by any person, tribunal,
or governmental agency except as herein provided. No action
against the United States, the Commissioner of Social
Security or any officer or employee thereof shall be
brought under section 1331 or 1346 of Title 28 to recover
on any claim arising under this subchapter.
42 U.S.C. § 405(h).

Any judicial review of an action arising

under the Social Security Act is available only to the extent
that the Act allows.

Shalala v. Illinois Council on Long Term

Care, Inc., 529 U.S. 1, 10-15 (2000); Heckler v. Ringer, 466
U.S. 602, 614-16 (1984).
The regulations provide that a claimant must complete a
four-step administrative review process to obtain a judicially
reviewable final decision.

20 C.F.R. § 404.900(a).

First, an

individual claiming entitlement to benefits receives an initial
determination.

20 C.F.R. § 404.902.

Second, if dissatisfied

with this determination, the claimant may ask for
reconsideration.

20 C.F.R. § 404.907.

Third, if dissatisfied

with that review, the claimant may request a hearing before an

3

Administrative Law Judge (ALJ).

20 C.F.R. § 404.929.

Fourth,

if the claimant is dissatisfied with the ALJ’s hearing decision,
the claimant may request that the Appeals Council review the
decision.

20 C.F.R. § 404.967.

At this point, the Appeals Council may deny the request for
review and allow the ALJ’s decision to stand as the final
decision of the Commissioner.

20 C.F.R. § 404.981.

The Appeals

Council may also grant the request for review and issue its own
decision.

Id.

In either event, the claimant may then seek

judicial review of the Commissioner’s final decision by filing
an action in federal district court within sixty days after
receiving notice of the Appeals Council’s action.

Id.; see also

20 C.F.R. § 422.210.
Ordinarily, a claimant must exercise administrative appeal
rights and seek judicial review within a specified time frame.
20 C.F.R. § 404.900(a).

Upon a showing of good cause, however,

the Commissioner will extend the time for seeking review.

See

20 C.F.R. §§ 404.909(b), 404.911, 404.933(c), 404.968(b),
404.982.

Thus, under the regulations, a claimant obtains a

judicially reviewable final decision only if he completes the
four-step administrative process and receives either (1) a
decision by the Appeals Council, or (2) notice from the Appeals

4

Council that it is denying his request for review.

20 C.F.R. §§

404.981, 422.210.
In this case, Plaintiff’s application for benefits was
denied without a hearing.

When Plaintiff’s request for a

hearing before an ALJ was granted, she requested that the
hearing be conducted on the telephone due to her severe panic
disorder, which was the basis for her disability claim.

The ALJ

denied that request because “he wanted to observe the claimant’s
appearance and demeanor at the hearing and because there was
insufficient evidence in the record to support the claimant’s
contention that she was unable to leave her residence.”
No. 8-2 at 8.)
to attend.

(Docket

When the hearing date arrived, Plaintiff failed

The ALJ considered the relevant factors to determine

whether good cause existed for her failure to attend the
hearing, see 20 C.F.R. 404.957(b)(2), 2 and he determined that
there was no good cause for Plaintiff’s failure to appear.

The

ALJ provided Plaintiff with another opportunity to explain to
him why she did not appear by way of a notice to show cause, but
Plaintiff did not respond.

The ALJ therefore dismissed

2

20 C.F.R. 404.957(b)(2) provides, “In determining good cause or
good reason under this paragraph, we will consider any physical,
mental, educational, or linguistic limitations (including any
lack of facility with the English language) which you may have.”
5

Plaintiff’s request for a hearing, and the Appeals Council
denied her appeal of that decision.
Defendant argues that Plaintiff’s case should be dismissed
because she did not obtain a “final decision of the Commissioner
of Social Security made after a hearing,” as required by 42
U.S.C. § 405(g), which would trigger the availability of
judicial review since there was no hearing.

Plaintiff argues

that her condition precludes her from attending a hearing, and
that her inability to have a telephonic hearing allows Defendant
to use her disability against her to deny her benefits.

She

also argues that the ALJ did not properly consider the elements
of 20 C.F.R. 404.957(b)(2) when finding that good cause did not
exist for her failure to appear at the scheduled hearing.
To the extent that Plaintiff asks this Court to consider
whether the ALJ properly dismissed her request for a hearing
pursuant to 20 C.F.R. 404.957(b)(2), the Court lacks
jurisdiction to do so.

A decision as to the propriety of an

ALJ’s decision to dismiss a hearing request is not subject to
judicial review because it does not constitute a “final
decision.”

See Van Williams v. Soc. Sec. Admin., 152 F. App'x

153, 154-55 (3d Cir. 2005) (citing Hoye v. Sullivan, 985 F.2d
990 (9th Cir. 1992)) (“[T]he ALJ dismissed Williams's hearing

6

request after Williams failed to appear at the rescheduled
hearing and showed no good cause for his failure to attend.

No

hearing was conducted, and no final decision has been made.”);
Pallotta v. Barnhart, 144 F. App'x 938, 941 (3d Cir. 2005) (“A
claimant . . . who is properly notified of a scheduled hearing
but fails to appear without good cause has failed to exhaust
administrative remedies and is not entitled to judicial
review.”); Aversa v. Sec'y of Health & Human Servs., 672 F.
Supp. 775, 778 (D.N.J. 1987) (finding that there is authority to
support defendant’s proposition that the Appeals Council
dismissal of a hearing request is not a final decision of the
Secretary); O'Connor v. Sullivan, 1990 WL 164779, at *2 (D.N.J.
July 5, 1990) (distinguishing the dismissal of a request for
review from the denial of a request for review, where a denial
is a “final decision” of the Secretary which is subject to
judicial review and a dismissal is binding and not subject to
further review, and pointing out that “Courts which have
considered the issue of whether the district court may review
the Appeals Council's dismissal of a request for review because
‘good cause’ . . . had not been shown have held that such
decision is not a ‘final decision’ subject to judicial review”);
see also Stevens v. Astrue, 2008 WL 4748178, at *2 (W.D. Pa.

7

Oct. 24, 2008) (“Stevens' request for an administrative hearing-one of the four steps of the administrative remedies process,
see 20 C.F.R. § 416.400(a)(3)--was dismissed due to his failure
to appear at the hearing and to provide good cause for his
absence.

Because no hearing was conducted, no ‘final decision’

has been rendered and this Court therefore lacks
jurisdiction.”); Garza v. Chater, 891 F. Supp. 464, 468 (N.D.
Ill. 1995) (finding that the court did not have subject matter
jurisdiction to review the ALJ's Order dismissing the
plaintiff’s request for hearing because the ALJ did not purport
to make a final decision on the merits of the plaintiff’s claim;
rather, the ALJ only determined that she had not established
good cause for late filing, and the plaintiff's request for a
hearing on the merits had been denied); Scott v. Colvin, 2015 WL
500736, at *4 (D.S.C. Feb. 5, 2015) (citing Hearings, Appeals
and Litigation Law manual (“HALLEX”) § l–2–4–5(F) (“A dismissal
action is not considered a final decision of the Commissioner
for purposes of filing a civil action.”)) (explaining that there
is no provision for further review under the Act when the
Appeals Council denied the plaintiff's request for review of the
ALJ’s dismissal of her request for a hearing when she failed to
appear for either of two scheduled hearings and failed to show

8

good cause for not doing so); Blevins-Moore v. Barnhart, 2003 WL
21919191, at *5 (N.D. Ind. July 30, 2003) (quoting Heisenberg v.
United States District Court for the Southern District of
Illinois, 910 F.2d 374 (7th Cir. 1990)) (“[W]e are somewhat
troubled by the Plaintiff's arguments which appear to challenge
the ALJ's good cause determination [as to why plaintiff failed
to appear at the hearing] as unsupported by the evidence.

Such

arguments distinctly resonate an appellate tone, yet the Seventh
Circuit has ‘reiterate[d], what seems constantly to need
reiteration, clearly established though the proposition is, that
mandamus is not to be allowed to do service for an appeal.

If

broadly useable to obtain appellate review of nonfinal orders,
mandamus would eviscerate the final-decision rule, the
cornerstone of federal appellate jurisdiction.’”).
In this case, Plaintiff’s disability claim is essentially
stalled at the third step in the four-step process.

She

received an initial determination denying her claim, and that
determination was upheld on reconsideration.

Plaintiff

attempted to complete the third step - a hearing before an ALJ –
but the ALJ did not grant Plaintiff’s request to have the
hearing held over the telephone, and Plaintiff did not appear in

9

person. 3

When she failed to appear, she was afforded the

opportunity to show cause for why she did not appear, pursuant
to a notice to show cause issued by the ALJ.

Plaintiff never

responded, and her request for a hearing was dismissed.
Appeals Council upheld the ALJ’s decision.
step decision remains in effect.

The

Thus, the second-

Because no final decision as

to the merits of her disability claim has been rendered by the
Commissioner through the completion of steps three and four, the
Court therefore lacks subject matter jurisdiction to consider
her case.
The Court recognizes that a claimant may be excused from
exhausting her administrative remedies “in certain special

3

The ALJ explained his reasoning for denying Plaintiff’s request
for a telephone hearing:
The claimant signed and returned the Acknowledgment of
Receipt (Notice of Hearing) form. The claimant stated on
the form that she wanted to testify by telephone. The
undersigned Administrative Law Judge denied the request
because he wanted to observe the claimant’s appearance and
demeanor at the hearing and because there was insufficient
evidence in the record to support the claimant’s contention
that she was unable to leave her residence. The
undersigned offered to postpone the hearing so that the
claimant could find a representative, but the claimant was
adamant that she wished to represent herself and that she
would only testify by telephone. The claimant stated that
she would provide further medical evidence of the severity
of her impairments when she received the Show Cause notice.
(Docket No. 8-1 at 8.)
10

cases,” such as where the plaintiff raises a challenge wholly
collateral to her claim for benefits and makes a colorable
showing that her injury could not be remedied by the retroactive
payment of benefits.

Califano v. Sanders, 430 U.S. 99, 109

(1977); see also Heckler v. Ringer, 466 U.S. 602, 618 (1984)
(“We have also recognized that in certain special cases,
deference to the Secretary's conclusion as to the utility of
pursuing the claim through administrative channels is not always
appropriate.”).

In perhaps an attempt to be considered a

“special case” that may be excused from the exhaustion
requirement, Plaintiff argues that Defendant is using her
disability against her to deny her benefits by way of refusing
to hold a telephonic hearing.

Plaintiff contends that Defendant

has therefore effectively precluded her from completing the
four-step administrative process, which constitutes a de facto
exhaustion of her administrative remedies.
Although this Court understands Plaintiff’s position,
Plaintiff’s argument does not qualify as a “special case.”

If

Plaintiff were permitted to bypass the four-step process under
these circumstances, it would incentivize claimants to skip the
hearing and file suit in court every time an ALJ does not find
good cause for a claimant’s failure to appear at the hearing.

11

Courts would then be left to second-guess the ALJ’s assessment
of the good-cause factors, in contravention of the explicit
limits to judicial review under the Social Security Act, as
detailed above. 4
An ALJ’s decision on matters such as whether to grant a
request for a telephonic hearing does not go unchecked.

The

checks and balances to the ALJ’s decision-making on
administrative functions is provided by the Appeals Council.
There have been many cases where the Appeals Council has
reversed the decision of the ALJ dismissing a hearing request.
See, e.g., Johnson v. Comm'r of Soc. Sec., 263 F. App'x 199, 200
(3d Cir. 2008) (Appeals Council vacated and remanded the matter
to the ALJ after ALJ issued an order of dismissal due to the
claimant’s failure to appear at the hearing); Weimer v. Astrue,
2009 WL 699944, at *1 (W.D. Pa. Mar. 11, 2009) (“Plaintiff
requested a hearing before an administrative law judge.

The

hearing request was dismissed because plaintiff failed to appear
for his hearing . . . . [T]he Appeals Council vacated the

4

Cf. Saephan v. Barnhart, 2003 WL 22309450, at *4 (N.D. Cal.
Oct. 1, 2003) (“That the Secretary denied a hearing should not
prevent judicial review where, as here, the Secretary's denial
appears to have failed to consider whether plaintiff had good
cause for missing the hearing.”).

12

dismissal and remanded the case to the ALJ.”); Kellam v. Bowen,
663 F. Supp. 238, 238-39 (E.D. Pa. 1987) (“Because plaintiff
failed to appear at the hearing or reply to a Notice to Show
Cause for Failure to Appear, the Administrative Law Judge (ALJ)
dismissed the hearing request . . . .

Upon plaintiff's request

for review of the ALJ's order of dismissal, the Appeals Council
vacated the ALJ's order and remanded the case for consideration
of whether plaintiff established good cause for his failure to
appear.”).
The dismissal of Plaintiff’s request for a hearing is
binding because it was not vacated by an administrative law
judge or the Appeals Council.

20 C.F.R. § 404.959. 5

Thus, even

if Plaintiff changed her mind and agreed to appear at an inperson hearing before the ALJ, she is currently precluded from
pursuing her original claim for DIB absent further action by
Plaintiff and the Commissioner.

See, e.g., Nicosia v. Barnhart,

160 F. App'x 186, 188 (3d Cir. 2005) (citing Bacon v. Sullivan,
969 F.2d 1517, 1522 (3d Cir. 1992)) (finding that because the
ALJ’s notification provided Nicosia with the opportunity to
exhaust his administrative remedies, and that the constitutional

5

20 C.F.R. § 404.959 provides, “The dismissal of a request for a
hearing is binding, unless it is vacated by an administrative
law judge or the Appeals Council.”
13

violation he alleges was directly related to his entitlement
claim, it does not provide independent grounds for jurisdiction;
Nicosia received all the process due to him, and the dismissal
of his claim was unreviewable).
A claimant who finds herself in the same situation as
Plaintiff is not left without any recourse, however.

Pursuant

to 20 C.F.R. § 404.988 (Conditions for reopening), “A
determination, revised determination, decision, or revised
decision may be reopened—(a) Within 12 months of the date of the
notice of the initial determination, for any reason; (b) Within
four years of the date of the notice of the initial
determination if we find good cause, as defined in § 404.989, to
reopen the case . . . .”
Based on Plaintiff’s papers submitted in opposition to
Defendant’s motion to dismiss, it is unclear whether Plaintiff
attempted to avail herself of this provision to reopen her case. 6

6

Plaintiff may be precluded from filing a new claim for DIB if
it is identical to her first claim because it would be deemed
res judicata. The courts of appeals of several circuits have
held that dismissals of “new” claims that effectively repeat
previously denied claims and which are therefore held by the
Secretary to be res judicata are not reviewable. Stauffer v.
Califano, 693 F.2d 306, 307 (3d Cir. 1982). But, a denial
determination may not be given res judicata effect if a claimant
demonstrates that she failed to appeal “acting in good faith
reliance upon incorrect, incomplete, or misleading information,
relating to the consequences of reapplying for benefits in lieu
14

Plaintiff relates,
Upon receipt of the Notice of Appeals Council Action, which
did not contain any information regarding further appeal,
Plaintiff called the SSA and was advised that no further
appeals were available as she had completed the four-step
process and Plaintiff was referred to the Chief Council in
the New York Region of the Federal Court who in turn
referred Plaintiff to the Federal Court House who in turn
referred her back to the SSA in New Jersey. It was the SSA
in New Jersey who advised Plaintiff to file the Complaint
which is the subject matter today.
(Docket No. 11 at 3-4.)
Plaintiff further relates,
In summary, Plaintiff filed a claim for disability almost
three years ago and has complied with each and every appeal
process afforded to her by the SSA in a timely and
professional manner. As a result of the actions of the SSA,
Plaintiff has been forced to live in poverty, lost her
home, her vehicle and any assets which she had prior to
2010. Plaintiff was denied her right to appear for her
hearing before the ALJ in direct violation of the ADA, the
ALJ used Plaintiff's disability against her by denying her
right to said hearing and is now attempting to claim that
the Plaintiff has not met her burden of proof with regard
to the process which she followed to the letter per SSA
instructions.
(Id. at 4.)

The Court notes that the backlog in the SSA and the court
system, along with the apparent misdirection by various
governmental entities, may have resulted in prejudice to

of seeking review of an adverse determination . . . .”
U.S.C. § 405(b)(3)(A).
15

42

Plaintiff.

The denial of Plaintiff’s reconsideration of her

application for DIB was issued on May 5, 2011, Plaintiff
requested a hearing on June 8, 2011, and she was not provided
with a hearing date until over a year later on July 26, 2012.
This delay prevented the reopening of her application pursuant
to § 404.988(a) even before she had a basis to request such
relief.

Then, after being advised in December 2012 to file suit

in this Court, which Plaintiff did in March 2013, this Court has
now decided it lacks subject matter jurisdiction.

Since that

decision was rendered after May 2015, it appears that the fouryear window to reopen the case for good cause pursuant to §
404.988(b) is not available to Plaintiff.
Even though this Court lacks subject matter jurisdiction to
consider whether Plaintiff is entitled to the award of benefits,
it seems inequitable that the delay in the resolution of
Defendant’s motion should bar Plaintiff from seeking to reopen
her claim under § 404.988(b).

See Bowen v. City of New York,

476 U.S. 467, 482 (1986) (applying equitable tolling principle
in Social Security case, and noting “that by the time this
lawsuit was filed, it was too late for a large number of class
members to exhaust their claims, since expiration of the 60-day
time limits for administrative appeals barred further access to

16

the administrative appeals process”); Cardyn v. Comm'r of Soc.
Sec., 66 F. App'x 394, 397 (3d Cir. 2003) (quoting Oshiver v.
Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir.
1994) (“‘[T]here are three principal situations in which
equitable tolling may be appropriate: “(1) where the defendant
has actively misled the plaintiff respecting the plaintiff's
cause of action; (2) where the plaintiff in some extraordinary
way has been prevented from asserting his or her rights; or (3)
where the plaintiff has timely asserted his or her rights
mistakenly in the wrong forum.’”); Hansen v. Astrue, 2012 WL
1551887, at *4 (W.D. Pa. Apr. 30, 2012) (citing Oshiver, 38 F.3d
at 1387) (finding that “it would be inequitable if it turned out
that Hansen had to suffer the consequences of an error made by a
judicial employee or an electronic malfunction in the Court's
ECF system”).
Accordingly, the Court directs the Commissioner to: (1)
show cause as to why the four-year time limit provided by §
404.988(b) should not be deemed to have been effectively tolled
on the filing date (August 23, 2013) of the Commissioner’s
motion to dismiss Plaintiff’s complaint, and (2) show cause as
to why Plaintiff should not be afforded seventeen months, which
represents the balance of time permitted under the regulations,

17

to seek to reopen her claim pursuant to 20 C.F.R. § 404.988, if
Plaintiff chooses to do so.

The Court provides no opinion as to

whether good cause exists to reopen the decision to dismiss
Plaintiff’s request for a hearing, see 20 C.F.R. § 404.989, 7 or
whether Plaintiff should be granted a hearing by telephone.

The

Court is only directing the Commissioner to express his position
on the Court’s ability to equitably toll the four-year time
limit provided by § 404.988(b) so that Plaintiff can seek to
reopen her DIB claim at the administrative level.

III. Conclusion
For the reasons expressed above, the Court will adjourn the
Commissioner’s motion to dismiss for 30 days so that the
Commissioner may show cause as to why the four-year time limit

7

20 C.F.R. § 404.989 provides,

(a) We will find that there is good cause to reopen a
determination or decision if—
(1) New and material evidence is furnished;
(2) A clerical error in the computation or recomputation of
benefits was made; or
(3) The evidence that was considered in making the
determination or decision clearly shows on its face that an
error was made.
(b) We will not find good cause to reopen your case if the only
reason for reopening is a change of legal interpretation or
administrative ruling upon which the determination or decision
was made.
18

provided by § 404.988(b) should not be deemed to have been
effectively tolled on the filing date (August 23, 2013) of the
Commissioner’s motion to dismiss Plaintiff’s complaint.

An

accompanying Order will be issued.

Date: January 4, 2016
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

19