HUDAK v. COLVIN
Filing
14
OPINION re 7 MOTION to Dismiss re 1 Complaint filed by CAROLYN W. COLVIN, indicating that said motion is granted. Signed by Judge Maurice B. Cohill on 11/20/2013. (rtw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
STEPHEN E. HUDAK,
)
)
Plaintiff,
)
)
)
)
CAROLYN W. COLVIN,
Acting Commissioner ofSocial Security,
Civ. No. 13-837
)
)
)
Defendant.
)
OPINION
I. Introduction
This case is before us following a final decision by the defendant, Commissioner of
Social Security ("the Commissioner"), denying Stephen E. Hudak's claim for a period of
disability and for disability insurance benefits under Title II of the Social Security Act. Plaintiff
has styled his Complaint as a Writ of Mandamus and seeks a remand for reconsideration and a
remand for a new hearing regarding reopening his denied disability application.
The Defendant has filed a motion to dismiss Plaintiff's Complaint as an untimely filed
appeal of the final decision of the Commissioner. Plaintiff has filed a Response to the motion to
dismiss, to which the Government has filed a Reply. For the reasons stated below, we will grant
Defendant's motion and dismiss the Complaint.
II. Procedural History
Stephen Hudak applied for a period of Disability and for Disability Insurance Benefits on
December 18, 2010, alleging a disability due to chronic back pain, shoulder pain, Post Traumatic
Stress Disorder, Anxiety, Depression, Bipolar Disorder, Obsessive Compulsive Disorder, sleep
apnea, neck pain, cyclic vomiting, chronic nausea, weight loss, right hip pain, hearing loss,
chronic insomnia, and mild COPD. Plaintiffs claim was initially denied on September 9, 2011.
A timely request for a hearing was filed by Plaintiff. A hearing was held before an
Administrative Law Judge ("ALl") on December 20, 20 II, at which Plaintiff and a vocational
expert testified.
The Notice of Hearing sent to Mr. Hudak included information regarding his right to
representation and a list of sources of representation. Mr. Hudak was not represented by counsel
when he appeared at the hearing. He was then given a written advisory explaining his right to
representation and also given a list of sources of representation. Mr. Hudak acknowledged that
he had received the information about his right to representation and a list of sources of
representation with the Notice of Hearing. He signed a waiver of his right to representation and
chose to proceed without representation.
On February 12,2012, the ALJ issued a Decision denying Mr. Hudak's application for a
period of disability and disability insurance benefits. Mr. Hudak filed a timely review of the
ALJ's determination, which was denied by the Appeals Council on June 5,2012. The denial
notice was mailed to Mr. Hudak at his address and informed him of his right to commence a civil
action within sixty days.
However, on June 12, 2012, the Appeal Counsel notified Mr. Hudak that it was setting
aside its June 5, 2012 denial in order to consider additional evidence submitted by Mr. Hudak.
In the same June 12, 2012 Notice the Appeals Council informed Mr. Hudak that upon review of
the additional evidence the Appeals Council was again denying his request for review. The June
12,2012 denial notice was mailed to Mr. Hudak at his address and again informed him of his
right to commence a civil action within sixty days.
2
Mr. Hudak's counsel Suzanne J. Hayden signed an appointment of representation on
August 10, 2012, indicating that Mr. Hudak had appointed her as his counsel. The appointment
of representation form was received by the Social Security Administration on August 15, 2012.
Mr. Hudak then filed this action on June 19,2013.
Mr. Hudak also filed a second application for disability insurance benefits on August 10,
2012. The August 10, 2012 application was denied on October 2, 2012.
Counsel sent a letter dated October 2, 2012 to the Social Security Administration in
which she requested a hearing and argued that the denial ofMr. Hudak's December 18,2010
application should be reopened and a new hearing be held. By letter dated May 2, 2013 the
Social Security Administration informed counsel that he saw no reason to grant the request to
reopen Mr. Hudak's case. The May 2, 2013 letter noted that the Appeals Council denied Mr.
Hudak's request for review on June 12,2012.
On June 19, 2013, Mr. Hudak filed the instant Complaint. In his Complaint, he alleges
three Counts. In Count One, titled "ALJ Under Heightened Duty," Mr. Hudak requests in part
that the matter be remanded and reconsidered due to the failure of the ALJ to perform a
heightened duty to an unrepresented claimant who has a mental disorder. In Count Two, titled
"Application to Reopen Decision," he requests in part a remand for a hearing on the issue of
whether his case should be reopened following the May 2, 2013 denial of the August 10, 2012
request for reopening. Finally, in Count Three, titled "Violation of Administrative Procedure
Act," in which Mr. Hudak asserts that his rights to due process under the Fifth Amendment to the
United States Constitution have been violated he requests that we order the Commissioner to
3
afford Mr. Hudak a new hearing on the reopening issue and order the Commissioner to
determine if his prior application may be reopened.
III. Discussion
The Congress of the United States provides for judicial review of the Commissioner's
denial ofa claimant's benefits. 42 U.S.C. ยง 405(g). Section 405(g) explains the time frame for
filing a civil action as follows:
Any individual, after any final decision of the Commissioner 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 may allow.
In this case, the final decision was issued and mailed on June 12,2012. Allowing five additional
days for mailing, a civil action must have been filed no later than August 16, 2012. The instant
action was not filed until June 19, 2013, well beyond the applicable statute oflimitations.
Accordingly, we will dismiss this action as untimely.
We understand that Mr. Hudak has styled his action as a Writ of Mandamus and states
that he is not asking the Court to make a determination on the merits of his claim for disability
benefits. In addition, we understand that Mr. Hudak also claims that he seeks a remand for a
hearing on the merits of the May 2, 2013 denial of his request to reopen his case. However, it is
clear that Mr. Hudak's Complaint does in fact seek review of the denial of his December 18,
2010 application for benefits. Because he failed to timely file a civil action seeking review of
that denial the Complaint must be dismissed.
In addition, we agree with Defendant that there appears to be no reason to toll the statute
of limitations on equitable grounds. While unrepresented Mr. Hudak was able to properly and
4
timely request review of the ALl's February 23, 2012 denial of his application. Furthermore, he
appointed his present counsel as his representative no later than August 10,2012, six days before
the last day to file a civil action or seek an extension of time to file a civil action. No such action
was filed. It appears that counsel and Mr. Hudak instead chose to file a new application for
benefits while simultaneously seeking to reopen the prior denial. Finally, we also agree with
Defendant that we do not have jurisdiction to review the May 2, 2013 denial ofMr. Hudak's
request to reopen.
V. Conclusion
For the foregoing reasons, we will grant Defendant's motion to dismiss this action as
untimely filed. An appropriate order will be entered.
tf-v.1b, J./J IJ
ate
1M~ t. ~ Jg:.u ctr
r
aunce B. Cohill, Jr.
Senior United States District Court Judge
5
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?