Simmons v. Commissioner of Social Security

Filing 22

ORDER REVERSING AND REMANDING FOR ADMINISTRATIVE PROCEEDINGS signed by Hon. Brian A Tsuchida. (AQ)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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LOUIS S.,
Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY,

CASE NO. C23-5519-BAT
ORDER REVERSING AND
REMANDING FOR
ADMINISTRATIVE PROCEEDINGS

Defendant.

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Plaintiff appeals the ALJ’s decision under 42 U.S.C. §405(g), contending the ALJ’s

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denial of his request for an administrative hearing violates his right to due process because he did

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not receive notice that reconsideration of his applications for benefits had been denied. Dkt. 1, 8.

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The Court agrees and REVERSES and REMANDS the case for an administrative hearing that

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addresses Plaintiff’s disability claim.

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The ALJ found Plaintiff applied for disability benefits in August 2020; his application

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was denied initially on June 15, 2021, and upon reconsideration on November 16, 2021; and

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Plaintiff filed an untimely written request for hearing before an ALJ on April 21, 2022. Tr. 20.

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The ALJ’s decision notes Plaintiff’s counsel stated good cause exists to grant a hearing

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because counsel’s office never received a copy of the reconsideration decision notice. Tr. 21.

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The ALJ acknowledged Plaintiff’s counsel also submitted a separate statement from the

ORDER REVERSING AND REMANDING FOR ADMINISTRATIVE
PROCEEDINGS - 1

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Paralegal in the office who receives and logs in all denials at the reconsideration level, that avers

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the paralegal did not receive a denial notice for Plaintiff’s deadline to request an administrative

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hearing. Id.

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The ALJ found Plaintiff failed to establish good cause on the grounds the record shows

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the Division of Disability Determination Services (DDS) issued a letter addressed to Plaintiff’s

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counsel advising Plaintiff that reconsideration had been denied and that a copy of the

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reconsideration decision notice was being forwarded. Tr. 21. The ALJ found:

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Due to the fact that the representative is listed on the notice as an
addressee, and that there is a separate letter from the
reconsideration adjudicator addressed directly to the representative
stating that they are forwarding a copy of the reconsideration
decision notice, and since there is no returned mail in the file, it is
assumed the reconsideration notice was delivered.

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Id.

Plaintiff contends the ALJ’s finding violates his right to due process. As an initial matter,

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the Court has jurisdiction to review only a final decision of the Commissioner. Dexter v. Colvin,

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731 F.3d 977, 980 (9th Cir. 2013) (quoting Califano v. Sanders, 430 U.S. 99, 109 (1977)); 42

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U.S.C. § 405(g). An ALJ’s decision whether good cause has been shown to entertain an untimely

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hearing request is discretionary not final, and thus is generally unreviewable by a district court.

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Id.

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However, the Court may address a discretionary and nonfinal decision of the

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Commissioner when it “is challenged on constitutional grounds.” Evans v. Chater, 110 F.3d

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1480, 1482 (9th Cir. 1997) (citing Sanders, 430 U.S. at 109); 42 U.S.C. § 405(g). This

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“exception applies to any colorable constitutional claim of due process violation that implicates a

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due process right either to a meaningful opportunity to be heard or to seek reconsideration of an

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adverse benefits determination.” Udd v. Massanari, 245 F.3d 1096, 1099 (9th Cir. 2001)

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(internal quotation marks and citation omitted). A “mere allegation of a due process violation is

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not a colorable constitutional claim.” Klemm v. Astrue, 543 F.3d 1139, 1144 (9th Cir. 2008)

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(internal quotation marks and citation omitted). “Rather, the claim must be supported by facts

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sufficient to state a violation of substantive or procedural due process.” Id. (internal quotation

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marks and citation omitted).

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The Court finds Plaintiff states a colorable constitutional claim. He contends and the

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record shows, he has maintained at both the administrative level and in this Court, that he did not

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receive notice that reconsideration of his disability application was denied. In support, the record

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contains statements from both his lawyer and the paralegal who receives and logs all denials of

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reconsideration that counsel’s office never received the reconsideration denial. The Court

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accordingly concludes it has jurisdiction to address Plaintiff’s request for review.

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The Commissioner argues notwithstanding Plaintiff’s counsel’s statements that he did not

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receive notice of the denial of reconsideration, “the ALJ reasonably pointed out that the record

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undercut Plaintiff’s claims that his representative never received the November 2021

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reconsideration denial notice,” Dkt. 20 at 6, and even if counsel did not receive notice, “the ALJ

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reasonably found Plaintiff failed to show good cause for his untimely hearing request when there

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is no dispute that Plaintiff himself received the agency’s November 2021 reconsideration denial

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notice.” Dkt. 20 at 5.

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The record does not support the Commissioner’s arguments. As to the Commissioner’s

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first argument, the ALJ found, Plaintiff did not establish good cause because the record contains

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correspondence prepared by DDS that was addressed to counsel and “since there is no returned

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mail in the file it is assumed the reconsideration notice was delivered.” Tr. 21. While the record

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shows correspondence was prepared, there is nothing showing it was actually mailed.

ORDER REVERSING AND REMANDING FOR ADMINISTRATIVE
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The Court finds any “assumption” or presumption the notice was mailed is rebutted by

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the uncontested statements of Plaintiff’s counsel and counsel’s paralegal averring they did not

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receive the notice. See Ashe v. Saul, 983 F.3d 1104, 1108 (9th Cir. 2020) (unrebutted statement

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of counsel he had not received the notice, where the face of the notice indicates, they were

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supposed to have been mailed is sufficient to rebut the presumption and shift the burden of

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proving actual receipt to the government.).

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As to the Commissioner’s second argument, if Plaintiff’s counsel did not receive copies

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of the notices, it is unreasonable to simply assume or conclude that Plaintiff himself received the

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notices. The Commissioner contends the record establishes there is no dispute that Plaintiff did

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in fact receive the notices. But the record does not establish this as there is no affirmative

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admission from Plaintiff that he in fact received the notices. The record only shows that notices

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were generated and addressed to counsel and Plaintiff. But beyond, that there is nothing showing

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Plaintiff received the notices, and there is affirmative evidence that Plaintiff’s counsel did not.

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Moreover, the ALJ denied Plaintiff a hearing on the sole ground that correspondence

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addressed to counsel was in the record and that it can be assumed counsel received it because

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that correspondence was not returned. The ALJ did not deny a hearing based upon a finding that

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Plaintiff himself had received the notice. The Commissioner’s argument the ALJ reasonable

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found Plaintiff failed to show good cause because Plaintiff, himself, received the notice thus

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does not reflect the ALJ’s findings or decision, and the Court declines to affirm the ALJ’s

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decision based upon findings not made by or relied upon by the ALJ.

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The Commissioner argues Plaintiff’s counsel’s claim Plaintiff “has severe physical and

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mental impairments which makes it extremely difficult for him to follow through with Social

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Security’s request. He relies on our office to follow through for his Social Security Disability

ORDER REVERSING AND REMANDING FOR ADMINISTRATIVE
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claim,” does not constitute good cause. Dkt. 20 at 6. Again, the ALJ never addressed whether

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this claim constituted good cause and did not deny Plaintiff a hearing for this reason in any

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event. The Court according declines to resolve this case based upon issues the ALJ never

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addressed or findings the ALJ never made.

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Because the Court finds the sole ground upon which the ALJ relied in denying a hearing

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is rebutted, and the failure to receive notice violates Plaintiff’s right to due process, the Court

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concludes the case should be remanded for further administrative proceedings.

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CONCLUSION

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For the foregoing reasons, the Commissioner’s decision is REVERSED, and this case is

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REMANDED for further administrative proceedings under sentence four of 42 U.S.C. § 405(g)

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On remand, the ALJ shall conduct a hearing addressing the merits of Plaintiff’s disability
claim utilizing the five-step disability determination process.
DATED this 5th day of February, 2024.

A

BRIAN A. TSUCHIDA
United States Magistrate Judge

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