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Robbins v. Colvin

United States District Court, D. Massachusetts

November 3, 2015

JEFFREY ROBBINS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant

          For Jeffrey Robbins, Plaintiff: Francis M. Jackson, LEAD ATTORNEY, PRO HAC VICE, Jackson & MacNichol, South Portland, ME; Marc D. Pepin, LEAD ATTORNEY, Jackson & MacNichol, South Portland, ME.

         For Carolyn W Colvin, Defendant: Anita Johnson, LEAD ATTORNEY, United States Attorney's Office, Boston, MA.

         For Social Security Administration, Interested Party: Thomas D. Ramsey, LEAD ATTORNEY, Office of the General Counsel, Social Security Administration, Boston, MA.

Page 206

         MEMORANDUM AND ORDER RE: MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION (DOCKET ENTRY # 13)

         MARIANNE B. BOWLER, United States Magistrate Judge.

         Pending before this court is a motion to dismiss this social security disability action for lack of subject matter jurisdiction filed by defendant Carolyn W. Colvin, Acting Commissioner of the Social Security Administration (" Commissioner" ), under Fed.R.Civ.P. 12(b)(1) (" Rule 12(b)(1)" ). (Docket Entry # 13). The Commissioner submits this court lacks jurisdiction to review a decision by the Appeals Council denying plaintiff Jeffrey Robbins (" plaintiff" ) an extension of time to file a request for review of a decision by an administrative law judge (" ALJ" ).

Page 207

          Plaintiff contends that neither he nor his attorney received the ALJ's decision until after the 60 day appeal period expired. In opposing the motion, plaintiff provides affidavits from his attorney and office staff attesting that the office did not receive the ALJ's August 19, 2013 decision until an office case manager retrieved it on November 11, 2013, from an electronic records portal maintained by the Social Security Administration (" SSA" ). Plaintiff promptly filed a motion seeking an extension of time to file an appeal of the ALJ's decision, which the Appeals Council denied. Plaintiff filed this action thereafter under 42 U.S.C. § 405(g) and, notably, " the Due Process Clause of the Fifth Amendment." (Docket Entry # 1).

         BACKGROUND

         On April 14, 2011, plaintiff, at the age of 21, filed an application for child insurance benefits on the basis of a disability and the earnings record of his mother. On the same day, plaintiff filed an application for supplemental security income. (Docket Entry # 14-1, pp. 8, 32).[1] On July 29, 2011, the state agency denied the applications. On August 8, 2011, plaintiff filed a request for reconsideration within the 60 day time period. (Docket Entry # 14-1, pp. 8-9, 30); 20 C.F.R. § § 404.909, 416.1409. On October 19, 2011, the Commissioner denied reconsideration. (Docket Entry # 14-1, pp. 9, 30); 20 C.F.R. § § 404.920, 416.1420. On November 1, 2011, plaintiff filed a timely request for a hearing before the ALJ. (Docket Entry # 14-1, pp. 9, 30); 20 C.F.R. § § 404.933, 416.1433. The ALJ conducted an evidentiary hearing on July 23, 2013. (Docket Entry # 14-1, p. 9). On August 19, 2013, the ALJ issued a written decision and determined that plaintiff was not disabled. (Docket Entry # 14-1, pp. 8-23); 20 C.F.R. § § 404.953, 416.1453.

         Regulations dictate that the ALJ " shall mail a copy of the decision to all the parties at their last known address." 20 C.F.R. § § 404.953(a), 416.1453(a). Where, as here, plaintiff had an attorney, the regulations also require the SSA to send plaintiff's attorney notice of the decision. 20 C.F.R. § 404.1715 (" We shall send your representative--(1) Notice and a copy of any administrative action, determination, or decision" ) (emphasis added); 20 C.F.R. § 416.1515.

         The ALJ's decision is ordinarily binding on the parties unless a party " request[s] a review of the decision by the Appeals Council within the stated time period." 20 C.F.R. § § 404.955, 416.1455; see also 20 C.F.R. § § 404.900(a)(4), 416.1400(a)(4). The stated time period to file a request for review by the Appeals Council is 60 days from receipt of the notice. 20 C.F.R. § § 404.968(a)(1), 416.1468. As stated in the regulations, plaintiff has " 60 days after the date [plaintiff] receive[s] notice of the hearing decision or dismissal" of a request for a hearing to file a written request for Appeals Council review. 20 C.F.R. § § 404.968(a)(1), 416.1468; see 20 C.F.R. § § 404.967, 416.1467. Receipt as opposed to the mailing date of the notice is the operative guideline. 20 C.F.R. § § 404.968(a)(1), 416.1468. Regulations define the date a plaintiff receives notice as " 5 days after the date on the notice, unless you show us that you did not receive it within the 5-day period." [2] 20 C.F.R. § § 404.901, 416.1401. This same presumption

Page 208

applies to receipt of the ALJ's decision bye plaintiff's attorney. 20 C.F.R. § § 404.1703, 416.1503.

         A plaintiff may also request an extension of the 60 day time period to file a request for Appeals Council review. 20 C.F.R. § § 404.968(a)(1), 416.1468. Filed with the Appeals Council, the written request " must give the reasons why the request for review was not filed within the stated time period." 20 C.F.R. § § 404.968, 416.1468. If plaintiff shows " good cause for missing the deadline, the time period will be extended." [3] 20 C.F.R. § § 404.968, 416.1468. The regulations define " good cause." 20 C.F.R. § § 404.911, 416.1411. One of the nine examples of circumstances " where good cause may exist" is that the plaintiff " did not receive notice of the determination or decision." [4] 20 C.F.R. § § 404.911, 416.1411.

         Here, the electronic file maintained by the Office of Disability Adjudication and Review applicable to plaintiff's applications includes the ALJ's August 19, 2013 decision along with a notice of the unfavorable decision dated August 19, 2013. The notice is addressed to plaintiff at 22 Wall Street in Brockton, Massachusetts with a courtesy copy to plaintiff's counsel at his current and correct address in Portland, Maine. Consistent with the regulations, the notice explained that plaintiff must file a written appeal with the Appeals Council " within 60 days of the date you get this notice" and the " Appeals Council assumes you got this notice 5 days after the date of the notice unless you show you did not get it within the 5-day period." (Docket Entry # 14-1, p. 5).

         There is no dispute that the Appeals Council did not receive a request for review within the 65 day time period after the ALJ's August 19, 2013 decision, i.e., October 23, 2013. Rather, by letter dated November 19, 2013, plaintiff's counsel wrote to the Appeals Counsel and requested an extension of time to file an appeal of the ALJ's decision with the Appeals Council. (Docket Entry # 14-1, p. 24). The letter stated the reasons for not filing the request for review in a timely manner, namely, that plaintiff's counsel did not receive the ALJ's decision until November 14, 2013,[5] and that the " decision was not sent to his office at the time it was issued." [6] (Docket Entry # 14-1, p. 24). On November 23, 2013, plaintiff's counsel filed a request for Appeals Council review.[7]

Page 209

          On August 11, 2014, the Appeals Council " dismissed [the] request for review." (Docket Entry # 14-1, pp. 26-27) (emphasis added). The decision stated that, " The request for review filed on November 23, 2013, was not filed within 60 days from the date notice of the decision was received" and the date of receipt " is presumed to be five (5) days after the date of such notice unless a reasonable showing to the contrary is made." (Docket Entry # 14-1, p. 27). The decision found " no good cause to extend the time for filing" because the ALJ's " decision was mailed to the same address listed on the attorney letterhead and the same address listed on the request for review." (Docket Entry # 14-1, p. 27).

         The accompanying cover letter explained that, " Under our rules, the dismissal of a request for review is final and not subject to further review." (Docket Entry # 14-1, p. 26). The applicable regulations confirm that, " The Appeals Council will dismiss your request for review if you did not file your request within the stated period of time and the time for filing has not been extended." 20 C.F.R. § § 404.971, 416.1471. Further, " The dismissal of a request for Appeals Council review is binding and not subject to further review." 20 C.F.R. § § 404.972, 416.1472 (emphasis added).

         The regulations explain that, when presented with a request for review, the Appeals Council has three options. It " may deny or dismiss the request for review, or it may grant the request and either issue a decision or remand the case to an administrative law judge." 20 C.F.R. § § 404.967, 416.1467 (emphasis added). Whereas the regulations dictate that a dismissal of a request for review is " not subject to further review," 20 C.F.R. § § 404.972, 416.1472, a denial of a request for review or a decision by the Appeals Council " is binding unless" the plaintiff " or another party file[s] an action in Federal district court within 60 days after the date you receive notice of the Appeals Council's action." 20 C.F.R. § § 404.981, 416.1481 .

         Plaintiff filed this action within 60 days of receipt of the Appeals Council's August 11, 2014 dismissal. The statute allows a plaintiff judicial review " after any final decision of the Commissioner of Social Security made after a hearing . . .." 42 U.S.C. ยง 405(g) (emphasis added). The corresponding regulations state that, " If you are dissatisfied with our final decision, you may request judicial review by ...


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