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Lind v. Berryhill

United States District Court, E.D. Wisconsin

March 19, 2018

NED LIND Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration Defendant.

          DECISION AND ORDER

          LYNN ADELMAN District Judge.

         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), 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. (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 five-day 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 ...

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