Brazell v. Berryhill

Filing 24

REPORT AND RECOMMENDATIONS re 3 Complaint filed by David Austin Brazell, CASE NO LONGER REFERRED to Magistrate Judge Richard B. Farrer. Signed by Judge Richard B. Farrer. (mgr)

Case 5:18-cv-00202-OLG Document 24 Filed 01/07/21 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
DAVID AUSTIN BRAZELL,
Plaintiff,
vs.
ANDREW M. SAUL, COMMISSIONER
OF SOCIAL SECURITY1;
Defendant.

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5-18-CV-00202-OLG-RBF

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
To the Honorable Chief United States District Judge Orlando Garcia:
This Report and Recommendation concerns Plaintiff David Austin Brazell’s request for
judicial review of the administrative denial of his request for disability-insurance benefits under
Title II of the Social Security Act. This action was referred for a report and recommendation
pursuant to 28 U.S.C. § 636(b), Rule 1(h) of Appendix C to the Local Rules, and the docket
management order entered on September 29, 2017, in the San Antonio Division of the Western
District of Texas. 2 This Court has jurisdiction to review a final decision of the Social Security
Administration, which in this case is the Appeals Council’s dismissal of Brazell’s request for
review. See 42 U.S.C. § 405(g); Smith v. Berryhill, 139 S. Ct. 1765, 1774 (2019). Authority to
enter this recommendation stems from 28 U.S.C. § 636(b)(1)(B).
1

On June 17, 2019, Andrew Saul was sworn in as the Commissioner of the Social Security
Administration. Accordingly, Commissioner Saul has been substituted as the named Defendant.
See Fed. R. Civ. P. 25(d).
2

The September 29, 2017 Docket Management Order was superseded by the October 8, 2019
Docket Management Order. But the scope of the referral hasn’t been altered.

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For the reasons discussed below, it is recommended that the Commissioner’s decision
should be AFFIRMED, and the case should be DISMISSED.
Factual and Procedural Background
Plaintiff Brazell filed his application for disability-insurance benefits on September 17,
2015, alleging a disability onset date of October 30, 1999. See Tr. 95. He alleged that the
following impairments render him disabled: post-traumatic stress disorder, depression, bipolar
disorder, and sleep apnea. See id. Brazell’s claim was initially denied on December 3, 2015, and
once again on August 15, 2016, after he requested reconsideration. See id. 95-111. Following the
denial of his benefits claim, Brazell requested and received an administrative hearing. Brazell
attended the hearing on March 21, 2017 without the assistance of an attorney or other
representative. See id.3 44-94. Brazell, a medical expert, and a vocational expert testified at the
hearing. See id.
The ALJ denied Brazell’s claim for benefits. See id. 9-22. Included with the ALJ’s
decision was a notice—dated June 22, 2017—outlining the appeals process and Brazell’s right to
request Appeals Council review within 60 days of its receipt. See id. The notice explained that
the Appeals Council will dismiss a late request unless a claimant shows that he had “good reason
for not filing it on time.” Id.
Brazell didn’t timely appeal the ALJ’s decision. Instead, on September 20, 2017—
approximately three weeks past the deadline—Brazell filed a request with the Appeals Council
for review. See Tr. 5-8. In his request, Brazell recognized that the 60-day deadline had expired
but sought an extension because (1) “Recently, [he has] had a severe illness in [his] family and
was needed there and (2) [he was] still gathering evidence for my case.” Id. Accordingly, Brazell
3

At the hearing, the ALJ confirmed that Brazell wanted to proceed without a representative. See
id. 46.

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sought an additional four week extension “in order to acquire the additional evidence.” Id.
Brazell didn’t provide any additional information regarding the grounds for his extension
request.
On October 12, 2017, the Appeals Council dismissed Brazell’s request for review
pursuant to 20 C.F.R. § 404.971. See id. 2-4. In the dismissal order, the Appeals Council
acknowledged receiving and considering Brazell’s September 20, 2017, request but explained
that “such reason does not establish good cause” to extend the 60-day deadline for seeking
review. Id. Brazell, who is proceeding pro se, initiated this action for judicial review on March 1,
2018, alleging that new evidence supports a finding he wasn’t disabled, and that the ALJ erred in
concluding that his disabilities were “minor.” Dkt. No. 1 & 3.
On September 28, 2018, the Commissioner moved to dismiss Brazell’s Complaint
pursuant to Rule 12(b)(1), contending that the Appeals Council’s Dismissal Order was binding
and nonreviewable. See Dkt. No. 8 (citing 20 C.F.R. § 404.972). Shortly thereafter, however, the
Commissioner advised the Court that the United States Solicitor General had filed a brief with
the United States Supreme Court in which the Government took the position that the Appeals
Council’s dismissal of a claimant’s request for review is a final decision of the Commissioner
subject to judicial review under § 405(g). See Dkt. No. 9 (citing Smith v. Berryhill, No. 17-1606,
2018 WL 4586263). Accordingly, on December 12, 2018, the Court stayed the case pending the
Supreme Court’s decision in Smith. See Dkt. No. 10.
On May 28, 2019, the Supreme Court held in Smith that an Appeals Council’s dismissal
on timeliness grounds, after a claimant has received a hearing before an ALJ on the merits,
qualifies as a “final decision . . . made after a hearing” for purposes of judicial review of that
dismissal for untimeliness pursuant to § 405(g). 139 S. Ct. at 1774, 1779-80. Accordingly, this

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Court lifted the stay in this case and ordered the parties to brief their respective positions, see
Dkt. Nos. 13-16; Jul. 3, 2019 text order.
Pursuant to Smith, the Commissioner withdrew its motion to dismiss for lack of subject
matter jurisdiction. See Dkt. No. 14. The Commissioner, however, contends that the Appeals
Council’s decision should be affirmed because Brazell failed to demonstrate the requisite good
cause to excuse his untimely appeal. See id.; see also Dkt. No. 23.
Brazell, for his part, argues that the reasons he previously provided to the Appeals
Council were “legitimate and reasonable requests for time extension based on 20 CFR
416.1433(b) and (c) and 20 CFR 416.1411.” Dkt. No. 22. Brazell also attributes “[p]art of the
problem” to the fact that he didn’t have an attorney to “explain the complexity of the case.” Id.
Accordingly, Brazell urges the Court to address the merits of his claims, arguing that the ALJ
committed three separate errors, each requiring remand. See id.
Analysis
Substantial evidence supports the Appeals Council’s determination that Brazell’s request
for review was untimely, and the Appeals Council didn’t abuse its discretion in dismissing
Brazell’s belated request for review for failing to show good cause. Accordingly, the dismissal
should be affirmed, and Brazell’s other points of error concerning the merits of the ALJ’s
decision shouldn’t be considered. See Smith, 139 S. Ct. at 1779-80 (noting that reversal of a
procedural dismissal warrants remand for consideration of merits arguments at the agency level).
The Appeals Process and Judicial Review. A claimant such as Brazell who is dissatisfied
with an ALJ’s decision may request review by the Appeals Council on the merits. See 20 C.F.R.
§§ 404.967; 404.970. To do so, a claimant must file a written request—accompanied by evidence
for consideration—within 60 days of the date the claimant receives notice of the hearing decision

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or dismissal, unless the Appeals Council extends the deadline for good cause. See id. § 404.968.
A claimant is presumed to receive notice of the ALJ’s decision five days after the date it is
issued, unless the claimant can show that he did not receive it within the five-day period. See id.
404.901. If a claimant misses the deadline and cannot show good cause, the Appeals Council will
dismiss a claimant’s request for review. See id. § 404.971.
For some time, the circuits were split regarding whether an Appeals Council’s dismissal
of an untimely request for review (as opposed to a denial on the merits) was subject to judicial
review, with the Fifth Circuit taking the position—consistent with the Commissioner’s
regulation, see id. § 404.972—that no subject matter jurisdiction exists under such
circumstances. See Harper by Harper v. Bowen, 813 F.2d 737, 739 (5th Cir. 1987). As
mentioned, however, the Supreme Court recently resolved this split in authority, holding that the
Appeals Council’s dismissal of a claimant’s untimely request for review of an ALJ’s decision is
a “final decision . . . made after a hearing” as defined by § 405(g). Smith 139 S. Ct. at 1780.
Judicial review under these circumstances, however, is generally limited to the propriety of the
administrative decision to dismiss the request for review on procedural grounds. See id. at 177980. In other words, although Brazell attempts to challenge the substance of the ALJ’s
unfavorable decision, the sole issue for the Court to determine is whether the Appeals Council
reversibly erred in determining that Brazell’s untimely request for review should be dismissed.
The standards that apply to that review are substantial-evidence review as to any fact and abuse
of discretion as to the overall conclusion of the Appeals Council’s as to the procedural dismissal.
See id. at 1779 n.19.
Substantial Evidence Supports the Appeals Council’s Timeliness Decision. There’s no
dispute with respect to the fact that Brazell’s request for review was untimely. The notice of the

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ALJ’s unfavorable decision is dated June 22, 2017. See Tr. 9. Accordingly, the agency presumes
that Brazell would’ve received a copy of the notice by June 27, 2017, and Brazell hasn’t
presented any evidence to the contrary or otherwise suggested that he didn’t receive a copy of the
notice within the five-day presumed period.4 Accordingly, Brazell’s deadline to seek review was
August 28, 2017.5 Brazell, however, didn’t seek review of the ALJ’s decision until
approximately three weeks later, on September 20, 2017. Substantial evidence supports the
Appeals Council’s factual conclusion that Brazell’s request for review was untimely.
The Appeals Council Didn’t Abuse Its Discretion in Determining No Good Cause
Existed. In determining whether a claimant such as Brazell has shown good cause for missing a
deadline to request review, the agency considers: (1) the circumstances that kept the claimant
from making the request on time; (2) whether the agency misled the claimant; (3) whether the
claimant didn’t understand the requirements of the Act resulting from amendments to the Act,
other legislation, or court decisions; and (4) whether a claimant had any physical, mental,
educational, or linguistic limitations that would’ve prevented him from filing a timely request or
from understanding or knowing about the need to file a timely request for review. 20 C.F.R.
§ 404.911(a). Examples of circumstances where good cause “may exist include, but are not
limited to the following situations: . . . (2) There was a death or serious illness in [the claimant’s]
immediate family . . . [and] (4) [The claimant was] trying very hard to find necessary
information to support [his] claim but did not find the information within the stated time periods
In his Complaint, Brazell alleges that he never received a copy of the Appeals Council’s
Dismissal Order and had to request “results of [the] decision and copies.” Dkt. No. 3. But Brazell
never claimed—either to the Appeals Council or this Court—that he never received notice of the
ALJ’s June 22, 2017, unfavorable decision.
4

5

Sixty-five days from June 22, 2017, landed on Saturday August 26, 2017. Accordingly, the
time period for requesting review would’ve been extended to the next full workday, Monday,
August 28, 2017. See HALLEX I-3-1-1(D)

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. . .” Id.(b) (emphasis added).

6

In other words, the Commissioner’s regulations provide the

Appeals Council with considerable discretion in determining whether a claimant such as Brazell
has presented good cause for an extension. See, e.g., United States v. Rodgers, 461 U.S. 677, 706
(1983) (“The word ‘may,’ when used in a statute, usually implies some degree of discretion.”).7
Brazell contends he presented “legitimate and reasonable” requests for an extension but
his request was unfairly denied. But at issue here isn’t whether the Court believes Brazell
should’ve received an extension. “Courts cannot properly direct or compel an extension of time
by the [the agency] absent an abuse of discretion or arbitrary or unreasonable action.” Gardner v.
Moon, 360 F.2d 556, 559 (8th Cir. 1966). Accordingly, the Court must determine whether the
Appeals Council abused its discretion in denying Brazell’s belated request for review for failing
to demonstrate good cause. As mentioned, good cause in this context necessarily implies the
exercise of a considerable amount of discretion in making the determination:
Good cause by its very nature calls for the evaluation of many subtle factors. Here
Congress has given the task to the administrative agency experienced in dealing with
claims to decide this in the first instance. And in the absence of an abuse of discretion, we
must be bound by the administrative determination even though the court would
justifiably have made a different choice had the matter been before it de novo.
Langford v. Flemming, 276 F.2d 215, 219 (5th Cir. 1960) (quotations and asterisks omitted).8 A

6

Although Brazell references the examples of good cause set forth in 20 C.F.R. § 416.1411, this
regulation governs applications for supplemental social security income, which aren’t at issue
here. Nevertheless, § 404.911(b) provides an identical list of circumstances where good cause
may exist.
7

See also Burbage v. Schweiker, 559 F. Supp. 1371, 1375 (N.D. Cal. 1983) overruled on other
grounds by Smith, 139 S. Ct. at 1765 (“Although the Secretary’s regulations do list the factors
which should be considered in determining whether there is good cause for late filing, the
decision is discretionary.”).
8

Although Langford was subsequently overruled by Harper, 813 F.3d at 743, the basis for the
overruling was Harper’s holding that an Appeals Council’s dismissal of an appeal as untimely
isn’t subject to judicial review. As mentioned, Harper has been overruled by Smith, 139 S. Ct. at
1765.

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decisionmaker abuses its discretion where it “base[s] its ruling on an erroneous view of the law
or on a clearly erroneous assessment of the evidence.” Dawson v. United States, 68 F.3d 886,
895-96 (5th Cir. 1995) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990)).
“Generally, an abuse of discretion only occurs where no reasonable person could take the view
adopted by the [decision maker]. If reasonable persons could differ, no abuse of discretion can be
found.” Id.
Under the circumstances presented here, there’s no basis to conclude that the Appeals
Council abused its discretion in concluding Brazell failed to show good cause for his extension
request. In his statement to the Appeals Council, Brazell claimed in cursory fashion that a severe
illness in his family necessitated an extension and that he needed additional time to gather
evidence. But Brazell didn’t submit any evidence to support this contention; nor did he provide
details that might’ve justified or bolstered his request.9 For example, Brazell didn’t identify
which member of his family was ill or explain how that illness would’ve impacted his ability to
request review. In fact, Brazell’s brief makes clear that the ill family member wasn’t a member
of his immediate family. Cf. 20 C.F.R. § 404.911(b)(2). Nor did Brazell provide any detail
regarding the efforts he made to timely find the necessary information to support his claim. He
also didn’t identify the type of information he was seeking or explain the basis for his belief that
it would’ve been necessary to support his claim. Cf. id.(b)(4). Moreover, Brazell didn’t request
an extension of time until nearly three weeks after the deadline to seek review had expired. Even
though Brazell wasn’t represented by counsel, there’s no basis to conclude on this record that he

9

See, e.g., Waters v. Massanari, 184 F. Supp. 2d 1333, 1341 (N.D. Ga. 2001) (no abuse of
discretion in dismissing plaintiff’s request for review where plaintiff didn’t submit an affidavit or
other documentation in support); Woods v. Saul, No. 4:19CV00921 BRW-PSH, 2020 WL
5825761, at *1 (E.D. Ark. Sept. 30, 2020), report and recommendation adopted, 2020 WL
6120200 (E.D. Ark. Oct. 16, 2020) (similar).

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wasn’t able to understand his obligation to timely seek review. Cf. id. § 404.911(a)(4). Brazell
hasn’t presented any evidence to this effect, and he didn’t raise this point to the Appeals Council
as a basis for his extension request. See Smith, 139 S. Ct. at 1779 (“[A] federal court generally
goes astray if it decides a question that has been delegated to an agency if that agency has not
first had a chance to address the question.”).
The Appeals Council could’ve been more lenient here. It could’ve requested more
information before denying Brazell’s extension request or even explained the basis for its
determination in more detail. But the Court can’t say that the Appeals Council’s bright-line
approach here constituted an abuse of discretion. “The Appeals Council’s review is
discretionary: It may deny even a timely request without issuing a decision.” Id. at 1772. “The
scope of this Court’s review is very limited. It cannot put itself in the decision maker’s place. It
cannot conclude that the Appeals Council abused its discretion just because the Court might have
ruled differently on the same set of facts.” Waters, 184 F. Supp. 2d at 1341 (citing Langford, 276
F.2d at 219). In dismissing Brazell’s request for an extension of time, the Appeals Council noted
that it had reviewed and considered Brazell’s statement explaining the reasons for failing to
timely request appeal but determined that the reasons presented didn’t establish good cause. See
Tr. 3. That is sufficient under these circumstances to show no abuse of discretion.10
The Appeals Council was not acting arbitrarily or unreasonably in concluding that
Brazell hadn’t satisfied his burden to provide good cause for failing to timely file a request for
review. The Appeals Council’s dismissal therefore shouldn’t be disturbed.

10

See, e.g., Hallex I-3-5-15 (explaining that denial notices must (1) acknowledge receipt of, and
exhibit, legal arguments or contentions submitted in connection with the request for review;
(2) state that the Appeals Council considered the arguments presented; and (3) conclude that the
information doesn’t provide a basis for changing the ALJ’s decision).

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Conclusion and Recommendation
For the reasons discussed above, it is recommended that Commissioner’s final decision
dismissing Brazell’s request for review as untimely and denying his application for disability
insurance benefits should be AFFIRMED, and the case should be DISMISSED.
Having considered and acted upon all matters for which the above-entitled and numbered
case was referred, it is ORDERED that the above-entitled and numbered case is RETURNED
to the District Court for all purposes.
Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on
all parties by either (1) electronic transmittal to all parties represented by attorneys registered as
a “filing user” with the clerk of court, or (2) by mailing a copy by certified mail, return receipt
requested, to those not registered. Written objections to this report and recommendation must be
filed within fourteen (14) days after being served with a copy of same, unless this time period is
modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The objecting party
shall file the objections with the clerk of the court, and serve the objections on all other parties. A
party

filing

objections

must

specifically

identify

those

findings,

conclusions,

or

recommendations to which objections are being made and the basis for such objections; the
district court need not consider frivolous, conclusory, or general objections. A party’s failure to
file written objections to the proposed findings, conclusions, and recommendations contained in
this report shall bar the party from a de novo determination by the district court. Thomas v. Arn,
474 U.S. 140, 149-52 (1985); Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000).
Additionally, failure to timely file written objections to the proposed findings, conclusions, and
recommendations contained in this report and recommendation shall bar the aggrieved party,

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except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto.
Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).
IT IS SO ORDERED.
SIGNED this 7th day of January, 2021.

RICHARD B. FARRER
UNITED STATES MAGISTRATE JUDGE

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