United States District Court, D. Massachusetts
KAREN M. MCELRATH, Individually and as Representative Payee for N.M.M., D.S.M., and S.M.M., Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner, Social Security Administration, Defendant.
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS U.S. DISTRICT COURT JUDGE
McElrath brought this suit against Carolyn Colvin, Acting
Commissioner of the Social Security Administration (the
“Commissioner”), requesting judicial review of a
final decision of the Commissioner, pursuant to 42 U.S.C.
§ 405(g). Ms. McElrath contends that in 2011, her
husband, Scott McElrath, was erroneously appointed
representative payee for their three children, and that
during this time, Mr. McElrath misused funds intended for
their children. On two separate occasions, the Social
Security Administration (“SSA”) investigated the
alleged misuse, and each time, it concluded that there had
not been any misconduct. Ms. McElrath’s Complaint,
filed on May 29, 2015, alleges that the SSA was negligent in
its appointment of Mr. McElrath, its payment of benefits to
Mr. McElrath, and its investigation into Mr. McElrath’s
alleged misuse use of funds. [ECF No. 1].
pending is the Commissioner’s Motion to Dismiss, which
was filed on November 20, 2015. [ECF No. 14]. In the Motion
to Dismiss, the Commissioner argues that the Court lacks
subject matter jurisdiction over the Complaint and further,
that the Complaint is barred by the statute of limitations.
Ms. McElrath filed her opposition to the motion to dismiss on
May 19, 2016. [ECF No. 21]. On May 31, 2016, the Court
granted the Commissioner leave to file a reply brief, but no
reply has been filed at this time. [ECF No. 23]. For the
reasons stated herein, the Motion to Dismiss is
to Ms. McElrath,  she first learned that Mr. McElrath had
been approved to receive Social Security Disability Benefits
on April 8, 2011, at a court hearing in Middlesex County
Probate and Family Court. [ECF No. 1 ¶ 4]. Later that
month, she learned that on or about March 15, 2011, Mr.
McElrath had been appointed representative payee for their
three children, and had received retroactive benefits for the
children in the amount of $20, 853. Id. ¶ 5.
Ms. McElrath alleges that the SSA did not timely inform her
or her children that Mr. McElrath had been appointed
representative payee or that he had received payments for the
children. Id. Ms. McElrath subsequently submitted
paperwork to become the representative payee (she is
currently their representative payee), as well as a Statement
of Claimant or Other Person to the fraud investigative unit
of the SSA, in which she alleged that Mr. McElrath had
impermissibly retained benefits intended for their children.
Id. ¶ 6, Ex. B.
about June 26, 2012, Ms. McElrath received a letter from the
SSA stating that they had not found any misuse of funds, and
that all of the funds distributed to Mr. McElrath had been
used for the benefit of the children. Id. ¶ 11.
Soon thereafter, Ms. McElrath filed a request for
reconsideration, and on September 19, 2012, she received an
additional letter from the SSA stating that her Request for
Reconsideration had been denied and that no misuse of funds
had been found. Id. ¶ 14. The Notice of
Reconsideration stated that if Ms. McElrath disagreed with
the decision, she could appeal it to an Administrative Law
Judge (“ALJ”), which she did. Id.
¶¶ 14-15. On October 15, 2012, Ms. McElrath filed a
request for hearing, and on January 15, 2013, she received a
Notice of Hearing from the SSA, stating that a hearing before
an ALJ had been scheduled for March 28, 2013. Id.
¶¶ 15, 18.
March 26, 2013, two days before the hearing was scheduled to
take place, Ms. McElrath received a Notice of Dismissal from
the ALJ stating that her request for a hearing had been
dismissed. Id. ¶ 21. The Commissioner filed a
copy of the ALJ’s decision with the motion to dismiss.
[ECF No. 15-4]. In the decision, the ALJ found that
“[a] misuse of funds determination is not an initial
determination with appeal rights, ” and that it was
therefore “appropriate . . . to dismiss the request for
hearing because the claimant and his representative do not
have a right to a hearing.” Id. at 10 (citing
20 C.F.R. §§ 405.305 and 405.380(d)). He noted that
Ms. McElrath had not previously raised the issue of the
SSA’s negligence or failure to investigate the possible
misuse of funds; she had only challenged the
investigators’ conclusion that there was no
misuse of funds, which is not an initial determination
subject to administrative review. Id. at 10-11. On
April 9, 2013, Ms. McElrath appealed the ALJ’s
decision, and on June 3, 2014, she received a Notice of
Appeals Counsel denying her request for review. [ECF No. 1
¶¶ 23-24]. The Notice stated that:
We found no reason under our rules to review the
Administrative Law Judge’s Dismissal. The regulatory
provisions under 20 CFR 202.902(x) is not applicable to your
case because the agency did not issue a determination under
agency policy finding the former representative payee misused
your funds. Under agency policy POMS GN 03101.080 appeals for
representative actions are administrative actions that are
not initial determinations and are not subject to
administrative or judicial review.
Id. ¶ 24. On July 15, 2014, Ms. McElrath sent
the Appeals Counsel a written request for an extension of
time to file a civil action for judicial review. Id.
¶ 27. In a letter dated October 24, 2014, the Appeals
Counsel denied her request. [ECF No. 15-6].
24, 2014, Ms. McElrath sent a formal request for
investigation to the Lowell, Massachusetts SSA office,
regarding the SSA’s alleged failure to follow procedure
when appointing a representative payee, failure to verify
custody of the children, failure to notify beneficiaries that
a representative payee had been appointed, and failure to
properly investigate an individual requesting to be appointed
representative payee. [ECF No. 1 ¶ 29]. She has not
received a response to her request for investigation.
Id. ¶ 33-34.
Commissioner has moved to dismiss Ms. McElrath’s
Complaint for lack of subject matter jurisdiction and for
failure to file this lawsuit within the applicable statute of
limitations. Both of the Commissioner’s arguments arise
from Section 405(g) of the Social Security Act (the
“Act”), 42 U.S.C. § 405(g), which sets forth
the procedures and conditions for judicial review of the
Commissioner’s decisions. Ms. McElrath purports to
bring this action under Section 405(g) of the Act. [ECF No. 1
¶ 3]. Section 405(g) provides, in relevant part, that:
Any individual, after any final decision of the Commissioner
of Social Security 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 of
Social Security may allow.
42 U.S.C. § 405(g). The Commissioner argues that the
Court lacks subject matter jurisdiction because there was
never a “final decision of the Commissioner . . . made
after a hearing, ” and that Ms. McElrath’s filing
is untimely because it was not “commenced within sixty
days after the mailing to h[er] of notice.” As
explained further below, the Court agrees with ...