Featherly v. Astrue

Filing 8

DECISION AND ORDER denying Plaintiffs application [#1] insofar as it requests an award of interim benefits. The Court reserves decision on the rest of the application. Defendant is directed to provide the Court with a written explanation for the Appeals Councils delay in issuing a decision on Plaintiffs appeal. Defendant shall file and serve such explanation within ten days of the date of this Decision and Order.Signed by Hon. Charles J. Siragusa on 5/3/10. (KAP)

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U N IT E D STATES DISTRICT COURT W E S T E R N DISTRICT OF NEW YORK _ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ _ L A R R Y A. FEATHERLY, P la in t if f D E C IS IO N AND ORDER -vs 1 0 -M C - 6 0 1 0 CJS M IC H A E L J. ASTRUE, C o m m is s io n e r of Social Security, D e fe n d a n t. _ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ _ __ APPEARANCES F o r the Plaintiff: M a rk M. McDonald, Esq. B o n d and McDonald 9 1 Genesee Street G e n e v a , New York 14456 J o h n J. Field, Esq. A s s is ta n t United States Attorney 1 0 0 State Street R o c h e s te r, New York 14614 IN T R O D U C T IO N T h is is an action seeking an order directing the Commissioner of Social Security (" C o m m is s io n e r" or "Defendant") to provide a prompt determination on Larry Featherly's ("P la in tif f ") application for Supplemental Security Income ("SSI") benefits, and to pay P la in t if f interim benefits. PROCEDURAL HISTORY O n January 31, 2005, Plaintiff applied for SSI benefits. On July 19, 2005, D e f e n d a n t denied the application. Plaintiff requested and received an impartial hearing b e f o re an Administrative Law Judge ("ALJ"), and on September 3, 2008, the ALJ issued a decision finding that Plaintiff is not disabled. Specifically, the ALJ found, at step four of F o r the Defendant: 1 th e five-step sequential analysis for evaluating disability claims, that Plaintiff was c a p a b le of performing his past relevant work. (Defendant's Memo of Law, Exhibit 1, A L J 's Decision at 14). On October 30, 2008, Plaintiff appealed to the Appeals Council. On November 10, 2009, Plaintiff wrote to Defendant to ask about the status of his a p p e a l. On November 13, 2009, Defendant responded that the appeal was "pending" in "B r. 17." On January 8, 2010, Plaintiff again wrote to Defendant to ask about the appeal, a n d Defendant responded that the letter had been forwarded to "Chief of Br. 17." To d a t e , the Appeals Council has not issued a decision. On February 23, 2010, Plaintiff commenced this action, citing Sharpe v. Sullivan, 1 9 9 0 W L 4016 (S.D.N.Y. 1990) and Sharpe v. Heckler, 1985 W L 2898 (S.D.N.Y. 1985). On March 24, 2010, Defendant responded, indicating that "Sharpe does not provide ju d ic ia l relief to an individual such as the Plaintiff, who has received a hearing decision, a n d is awaiting Appeals Council review of his decision." (Defendant's Response [#5] at 2 ). Defendant argues that Plaintiff's motion is therefore moot. Defendant further argues th a t the Court cannot award Plaintiff interim benefits, since the Social Security Act does n o t provide for such benefits under the facts of this case. On March 30, 2010, Plaintiff filed a reply [#7]. Plaintiff states that while Defendant m a y be technically correct that Sharpe does not apply in this case, it nevertheless "offers a procedural guide for the Plaintiff's requested relief determination and supports the p r o p o s it io n that the district court may provide the relief requested." (Reply [#7] at 1). Plaintiff further indicates that injunctive relief is appropriate where Defendant is guilty of "u n re a s o n a b le delay." Additionally, Plaintiff's counsel states that on March 9, 2010, he w a s contacted by an employee of "Branch 17 of the Appeals Council," who indicated that 2 "t h e Council had no appeal documentation concerning [Plaintiff's] appeal." (Reply A f f ir m a t io n [#7-2] at 3). The Appeals Council employee further asked Plaintiff to p ro v id e "the legal arguments and additional medical evidence that was submitted on the a p p e a l. " On March 9, 2010, Plaintiff's attorney re-submitted the appeal information to th e Appeals Council. On these facts, Plaintiff argues that but-for his commencement of th is action, he "would have been waiting in vain for a decision from the Appeals Council a s they did not have any of [his] appeal documentation in its possession prior to 3-091 0 ." (Pl. Reply Memo at 3). Plaintiff adds that, "[u]nder the circumstances, it does not a p p e a r that an award of interim benefits would be unreasonable." (Id.). STANDARDS OF LAW 4 2 U.S.C. 1383(c)(1)(A) provides, in pertinent part, that after any unfavorable d e c is io n regarding SSI benefits, the Commissioner shall, upon request, provide "re a s o n a b le notice and opportunity for a hearing with respect to such decision." Such p r o v is io n entitles claimants "to a hearing within a reasonable time." See, Heckler v. Day, 4 6 7 U.S. 104, 108, 104 S.Ct. 2249, 2252 (1984) (Interpreting 42 U.S.C. 405(b), an a n a lo g o u s provision concerning Social Security Disability Insurance ("SSDI") benefits). Injunctive relief, imposing deadlines on the Commissioner, may be appropriate "to r e m e d y individual violations of 405(b)." Id., 467 U.S. at 119, 104 S.Ct. at 2257, n. 33 ("W e make clear that nothing in this opinion precludes the proper use of injunctive relief to remedy individual violations of 405(b)."). A delay is "per se unreasonable [where] it in v o lv e [ s ] years of inaction." Butts v. Barnhart, 416 F.3d 101, 105 (2d Cir. 2005). 3 In this case, at the outset Plaintiff's request for interim benefits must be denied, s in c e he has not demonstrated that he is disabled. See, Butts v. Barnhart, 416 F.3d at 1 0 3 ("[A]bsent a finding that the claimant was actually disabled, delay alone is an in s u f f ic ie n t basis on which to remand for benefits.") (citation omitted). A s for the Commissioner's delay in rendering a final decision, Plaintiff initially a p p lie d for benefits on January 31, 2005, over five years ago. On October 30, 2008, P la in tif f appealed to the Appeals Council, and at present he has been waiting a p p ro x im a te ly eighteen months for a decision. Defendant has not offered any e x p la n a t io n for the Appeals Council's delay, although, according to Plaintiff, it appears th a t it is because the Council lost Plaintiff's paperwork. The Court will direct that D e f e n d a n t provide an explanation for the Appeals Council's delay within ten days of the d a t e of this Decision and Order. C O N C L U S IO N F o r the reasons discussed above, Plaintiff's application [#1] is denied insofar as it re q u e s ts an award of interim benefits. The Court reserves decision on the rest of the a p p lic a tio n . Defendant is directed to provide the Court with a written explanation for the A p p e a ls Council's delay in issuing a decision on Plaintiff's appeal. Defendant shall file a n d serve such explanation within ten days of the date of this Decision and Order. S o Ordered. D a t e d : Rochester, New York May 3, 2010 ENTER: /s / Charles J. Siraugsa CHARLES J. SIRAGUSA U n ite d States District Judge 4

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