Lind v. Berryhill
Filing
25
DECISION AND ORDER signed by Judge Lynn Adelman on 03/19/2018. IT IS ORDERED that the ALJs decision is affirmed, and this case is dismissed. The Clerk shall enter judgment accordingly. (cc: all counsel)(lls)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
NED LIND
Plaintiff,
v.
Case No. 17-C-367
NANCY A. BERRYHILL,
Acting Commissioner of the Social Security Administration
Defendant.
DECISION AND ORDER
In this action for judicial review, plaintiff Ned Lind argues that an Administrative Law
Judge (“ALJ”) improperly dismissed as untimely his request for a hearing regarding a change
in his social security benefits. For the reasons that follow, I affirm the ALJ’s decision.
I. BACKGROUND
Plaintiff receives social security disability benefits. The Social Security Administration
(“SSA”) suspended his benefits from January 2005 through July 2009, and again from
November 2010 to February 2011, due to the issuance of warrants for his arrest during these
periods. (Tr. at 37.) Pursuant to a court order subsequently issued in a class action lawsuit,
the SSA provided retroactive relief to individuals subject to suspension actions taken on or after
October 24, 2006, which were based on an outstanding arrest warrant related to a violation of
probation or parole. See Clark v. Astrue, 274 F.R.D. 462 (S.D.N.Y. 2011) (order certifying the
class); https://secure.ssa.gov/poms.nsf/lnx/0202615100 (explaining Clark relief).
On June 26, 2013, the agency issued a Notice of Change in Benefits, indicating that it
had reviewed plaintiff’s suspensions pursuant to Clark, denying relief for the 2005-2009 period
but granting relief for the 2010-2011 period. (Tr. at 37.) On July 3, 2013, plaintiff filed a
request for reconsideration. (Tr. at 29.) In an attached letter, plaintiff indicated that on June
28, 2013, his wife called the SSA to ask why he was denied repayment for the earlier period,
and the SSA representative advised that the decision was based on the fact that the “offense
codes” pertaining to the two suspension periods were different.
Plaintiff asked for
reconsideration because the codes were not different; the two periods actually involved the
same code, 5012, which was covered under the Clark case.1 (Tr. at 30.) He also attached to
the request a copy of his NCIC report listing the code. (Tr. at 31-36.)
On December 24, 2013, the SSA issued a Notice of Reconsideration, affirming the
previous determination. (Tr. at 26-27.) The agency explained that the denial regarding the
2005-2009 period was based on the fact that the Clark order applied to determinations made
on or after October 24, 2006, while the decision in plaintiff’s case regarding this period was
made in December 2005. Accordingly, plaintiff was not entitled to relief for that period under
Clark. (Tr. at 26.) The reconsideration notice further explained that, if he felt the decision was
wrong, plaintiff could request a hearing before an ALJ, and that he had 60 days to do so, with
the 60-day period starting the day after he received the notice. (Tr. at 27.)
Nearly two years later, on October 2, 2015, plaintiff filed a request for a hearing before
an ALJ. (Tr. at 17.) In that request, he stated that the reconsideration notice failed to explain
why he did not receive repayment of benefits as a result of Clark. (Tr. at 17.) Plaintiff attached
a copy of the same letter he provided in support of the reconsideration request (Tr. at 19),
1
The National Crime Information Center (“NCIC”) classifies criminal offenses using a 4digit code. For instance, Code 0999 refers to homicide. Code 5012 pertains to probation
violations. See https://secure.ssa.gov/poms.nsf/lnx/0202613900.
2
along with a copy of his NCIC criminal history report (Tr. at 20-25). At the bottom of the letter,
he hand-wrote: “This is original reason for appeal. I am still not satisfied with the denial. Both
of the circumstances were the same, yet only one was paid back, so this is why I am requesting
a hearing.” (Tr. at 19.) Plaintiff did not address the explanation for the different treatment of
the two periods provided in the agency’s reconsideration notice.
Plaintiff also attached a letter explaining why the hearing request came more than 60
days after the previous determination. (Tr. at 17.) In that letter, plaintiff indicated that he was
not aware of the previous denial because he never received the notice. He further indicated
that he and his wife called the SSA on October 8, 2014, and spoke to an employee named
“Kyle.” Plaintiff indicated that he gave permission for Kyle to talk to his wife about the appeal,
and Kyle informed plaintiff’s wife that the appeal was still pending and to check back at a later
date. Plaintiff’s wife asked how soon they should call back, and Kyle said six to twelve months.
They gave it almost a full year and still had not heard, so on September 18, 2015, plaintiff
called and was then informed that reconsideration had been denied on December 24, 2013.
Plaintiff asked how this was possible, since they were told in October 2014 that the matter was
pending. The SSA representative did not know but thought maybe the pending issue Kyle
mentioned pertained to something else. Plaintiff indicated that he had no other pending matter,
and the SSA representative had no reason for how the mistake occurred. Plaintiff asked for
a copy of the reconsideration decision, which he received on September 26, 2015. He claimed
he would have timely requested a hearing had he received the notice. (Tr. at 18.)
On December 23, 2015, the ALJ dismissed plaintiff’s request for a hearing as untimely.
(Tr. at 12.) The ALJ noted that hearing requests must be filed within 60 days of the date the
claimant received notice of the previous determination.
3
(Tr. at 15, citing 20 C.F.R. §
404.933(b)(1).) Such notices are presumed to have been received five days after the date on
the notice, unless the claimant can establish that he did not receive the notice within the fiveday period. (Tr. at 15, citing 20 C.F.R. § 404.901.) The time for requesting a hearing may be
extended if the claimant can establish “good cause” for missing the deadline. (Tr. at 15, citing
20 C.F.R. §§ 404.911 & 404.933(c).)
The ALJ concluded:
The claimant filed the request for hearing more than 17 months after the date of
the notice of reconsideration determination and the claimant has not established
that he did not receive this determination within 5 days of this date. Accordingly,
the request for hearing was not filed within the stated time period.
In terms of extending the time to file the request, the claimant stated that he
missed the deadline to request a hearing because he states he never received
the Notice of Reconsideration. The undersigned has considered this explanation
under the standards set forth in 20 CFR 404.911 and finds that the claimant has
not established good cause for missing the deadline to request a hearing. The
claimant did not file the Request for Hearing for nearly two years after the
reconsideration denial. He was receiving benefits at the time of the
reconsideration decision and the reconsideration notice was sent to the address
provided by the claimant. In the fact, the claimant’s address was last updated in
November 2002. The undersigned is not convinced the claimant did not receive
the reconsideration notice. The undersigned does not find the claimant’s
statements about not receiving the notice to be credible given the evidence
showing the notice was sent to the correct address.
Because the request for hearing was not filed within the stated time period, and
because the claimant has not established good cause for missing the deadline
to request a hearing, the request for hearing dated October 2, 2015 is dismissed
and the reconsideration determination dated December 24, 2013 remains in
effect.
(Tr. at 15-16.)
Plaintiff requested review by the Appeals Council (Tr. at 10), reiterating his claim that
he never received notice of the December 2013 reconsideration decision (Tr. at 11). He
indicated that he had not changed his address and had the same contact information for many
4
years. He further indicated that he called social security and was told the matter was pending
and to check back later, which he did in September 2015, learning only then of the
reconsideration decision of December 24, 2013. He argued that he would have timely
appealed had he received the December 2013 letter. (Tr. at 11.)
On April 20, 2016, the Appeals Council denied plaintiff’s request for review. (Tr. at 6-9.)
The Council subsequently extended the time for plaintiff to seek judicial review (Tr. at 1-5), and
plaintiff filed the instant action.
II. STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), a social security claimant may seek judicial review of
any final decision by the Commissioner of Social Security, including a decision dismissing as
untimely a request for a hearing. See Boley v. Colvin, 761 F.3d 803, 808 (7th Cir. 2014).
Where, as here, the Appeals Council denied review, the court reviews the ALJ’s decision as
the final word from the Commissioner. E.g., Moreno v. Berryhill, 882 F.3d 722, ___ (7th Cir.
2018).
The court reviews an ALJ’s decision to determine whether it applies the correct legal
standard and is supported by substantial evidence. Summers v. Berryhill, 864 F.3d 523, 526
(7th Cir. 2017). Legal conclusions are reviewed de novo, but finding of fact will be upheld if
supported by “substantial evidence.” Casey v. Berryhill, 853 F.3d 322, 326 (7th Cir. 2017).
Substantial evidence means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Summers, 864 F.3d at 526. The court will not, under this
deferential standard, re-weigh the evidence or substitute its judgment for that of the ALJ. Id.
If reasonable minds could differ as to the appropriate outcome, the court must uphold the
decision under review. See, e.g., Shideler v. Astrue, 688 F.3d 306, 310 (7th Cir. 2012).
5
III. DISCUSSION
Plaintiff argues that the ALJ should have found “good cause” for the late filing, and that
the matter should be remanded for a hearing on the merits. The regulations provide various
examples of circumstances in which good cause may exist, see 20 C.F.R. § 404.911(b), but
plaintiff relies solely on § 404.911(b)(7): “You did not receive notice of the determination or
decision.”
Plaintiff first contends that the court should not presume receipt absent proof the agency
mailed the notice. As he seems to acknowledge, however, his argument conflicts with the
regulations. See 20 C.F.R. § 404.901 (“Date you receive notice means 5 days after the date
on the notice, unless you show us that you did not receive it within the 5-day period.”); Solberg
v. Secretary of Dep’t of Health & Human Servs., 583 F. Supp. 1095, 1097-98 (E.D. Wis. 1984)
(explaining that the regulation creates a rebuttable presumption of receipt); see also Grant v.
Berryhill, 695 Fed. Appx. 592, 594-95 (1st Cir. 2017) (rejecting the argument that the
presumption of receipt applies only if the agency presents specific evidence of mailing).
Plaintiff does not challenge the validity of the regulations, nor does he provide any authority
requiring proof of mailing.
Plaintiff next contends that, even if the presumption exists, he made a sufficient showing
of non-receipt. However, the only evidence he cites is his own statement that he did not
receive the notice in December 2013, that “Kyle” failed to tell him about it in October 2014, and
that he learned of the decision only when he called back in September 2015. He produced no
corroborating evidence. Courts have rejected the notion that a claimant’s mere assertion is
sufficient to rebut the presumption of receipt, see, e.g., Grant, 695 Fed. Appx. at 594; Kinash
v. Callahan, 129 F.3d 736, 737 (5th Cir. 1997); Pettway v. Barnhart, 233 F. Supp. 2d 1354,
6
1356-57 (S.D. Ala. 2002); Solberg, 583 F. Supp. at 1098, and plaintiff cites no authority
requiring the ALJ to hold a hearing under such circumstances. As the court explained in
Solberg, the SSA could not function or enforce its deadlines if the presumption could be
overcome with a bare denial of receipt.2 Id.
Plaintiff argues that his alleged telephone contacts with the SSA provide corroboration,
but the only evidence of these contacts comes from plaintiff’s statement. Plaintiff faults the
SSA for failing to produce documentation of the calls, but the burden is on plaintiff to prove
non-receipt;3 he cites no authority requiring the Commissioner to produce a record of these
2
Plaintiff argues in reply that because his request was dismissed without a hearing the
ALJ had no opportunity to assess credibility. However, plaintiff cites no authority requiring the
ALJ to hold a hearing to evaluate the veracity of an unsupported claim of non-receipt. He also
faults the ALJ for failing to make detailed findings and marshal supporting evidence, but plaintiff
presented no evidence for the ALJ to consider aside from his own statement, which the ALJ
did not accept. Cf. United States v. Pietkiewicz, 712 F.3d 1057, 1061 (7th Cir. 2013) (stating
that the amount explanation required from a judge varies with the circumstances, and that
when a matter is simple the judge need not write extensively). Finally, although the parties do
not discuss it, I note that the Seventh Circuit’s recent decision in Casey is inapposite. The error
in that case was the Appeals Council’s arbitrary reversal of its previous grant of a good cause
extension, which the Seventh Circuit deemed “an unfair bureaucratic bait and switch.” 853
F.3d at 323. The original request was based on the statement of the claimant’s counsel that
he never received a copy of the decision and learned of it only after calling, which the court
characterized as a “viable showing of good cause.” Id. at 328. However, the court did not hold
that the Council was required to accept such a claim of non-receipt, only that once it exercised
its discretion to accept a good cause contention it could not arbitrarily change course.
3
He similarly argues in reply that no evidence was provided contradicting his claim of
non-receipt. Because the regulation places the burden on the claimant, the agency need not
submit evidence. Plaintiff further notes in reply that the regulation does not set forth the
standard for proving non-receipt. That the regulation does not require documentary
corroboration does not mean that an ALJ is required to accept a claimant’s bare assertion of
non-receipt, regardless of the other circumstances of the case. Finally, plaintiff indicates that
the agency could solve this problem by sending notices by certified mail. Doing so would
produce a record of receipt (or non-receipt), but plaintiff cites no authority requiring the SSA
to certify the millions of pieces of correspondence it sends every year. As plaintiff notes,
certified mail is used when an action for judicial review is filed in federal court, see Fed. R. Civ.
P. 4(i), but he cites no similar rule for agency communications to individual claimants.
7
alleged contacts with the agency. Plaintiff’s argument that, because the Commissioner failed
to refute the calls, his statements about them must be accepted as credible similarly fails to
acknowledge the burden.
Finally, plaintiff argues that his credibility is bolstered by the fact that he filed for a
hearing two years late; had he simply overlooked the deadline, he likely would have filed
sometime shortly after the period ran. He similarly argues that the fact that he filed the hearing
request soon after learning of the reconsideration decision makes it reasonable to assume that
he did not, in fact, receive timely notice. But these arguments again assume the truth of his
claim that he did not learn of the denial until September 2015. Cf. Grant, 695 Fed. Appx. at
594 (holding that a record showing when the claimant faxed the notice to his lawyer did not
demonstrate the date the claimant received the notice).
IV. CONCLUSION
THEREFORE, IT IS ORDERED that the ALJ’s decision is affirmed, and this case is
dismissed. The Clerk shall enter judgment accordingly.
Dated at Milwaukee, Wisconsin this 19th day of March, 2018.
/s Lynn Adelman
LYNN ADELMAN
District Judge
8
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?