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Crystal L. Lucas v. Michael J. Astrue

October 21, 2011


The opinion of the court was delivered by: Judge Nora Barry Fischer



This action involves a Social Security claimant‟s challenge to the Commissioner‟s dismissal of her claim for disability insurance benefits ("DIB") based on her failure to timely file a request for a hearing on her denied claim. Presently before the Court is Defendant Michael J. Astrue, Commissioner of Social Security‟s Motion to Dismiss Plaintiff‟s Complaint for lack of subject matter jurisdiction (Docket Nos. 5, 6) and Plaintiff=s response thereto (Docket No. 8). In his motion, the Commissioner argues that this Court lacks subject matter jurisdiction over Plaintiff=s Complaint because the Commissioner did not issue a "final decision" denying disability benefits in Plaintiff=s case, but dismissed her untimely request for a hearing. (Docket Nos. 5, 6). Plaintiff maintains that the dismissal order is reviewable by this Court. (Docket No. 8). Upon consideration of the parties‟ positions, and for the following reasons, Defendant‟s Motion to Dismiss [5] is granted and this matter is dismissed for lack of subject matter jurisdiction.


Plaintiff=s claim for disability benefits was denied on November 3, 2009. (Docket No. 5-2 at 2). The denial letter set forth standard agency language instructing Plaintiff how to proceed if she disagreed with the agency‟s decision. (Id. at 4). Specifically, under the bold heading "If You Disagree With The Determination," the letter provides:

 You have 60 days to ask for a hearing.  The 60 days start the day after you get this letter. We assume you got this letter 5 days after the date on it unless you show that you did not get it within the 5-day period.  You must have a good reason for waiting more than 60 days to ask for an appeal.  You have to ask for a hearing in writing. We will ask you to complete a form HA-501-U2, called "Request for Hearing". You may contact one of our offices or call 1-800-772-1213 to request this form. Or you may complete this form online at Contact one of our offices if you want help. (Id.). Plaintiff does not dispute that she received this letter at her address in Butler, Pennsylvania listed on the form. (Id.; Docket No. 8 at 1). Based on terms set forth in the letter, Plaintiff had 65 days from November 3, 2009, i.e., until January 7, 2010 to file a request for a hearing. (Id.). But, Plaintiff failed to timely file a request for a hearing within the time allotted.

Instead, after the time period had already expired, on January 14, 2010, she met with her present counsel, Christine Nebel, Esquire to discuss her case. (Id. at 24, ¶ 10). Plaintiff advised Nebel during the meeting that she thought that her disability claim was denied on November 13 or 18, 2009. (Id. at 24, ¶ 11). At that time, she also completed a request for hearing form and Nebel filed the form with the local Social Security Office the following day, January 15, 2010 -- 8 days after the deadline for requesting a hearing had passed. (Id. at 24, ¶ 12). The local office did not advise Nebel that the submission was untimely at that time. (Id. at 24, ¶ 15). However, sometime later, the local office contacted Plaintiff and requested that she fill out and submit a "Statement of Claimant Or Other Person." (Id. at 15, 24, ¶ 13). Nebel was not copied on this correspondence. (Id.). Plaintiff filled out the form without assistance and returned it to the agency. (Id.). In response to the question, "the reason my appeal due to denial of social security benefits was past the 60 day appeal period was," Plaintiff stated that:

The original Attorney I wanted to meet with took [weeks] to get back to me. Then my mother was a victim of a home invasion robbery [and] she almost had a stroke from fear. My nephew who is an attorney found someone who he felt comfortable with, [Christine] Nebel [and] by the time I had my [appointment] -- I thought I had more time I misread the 13th as the 18th. (Docket No. 8 at 15).

On March 10, 2010, Administrative Law Judge David Hatfield ("ALJ") issued an Order of Dismissal wherein he dismissed Plaintiff‟s request for a hearing. (Docket No. 5-1 at 7-8). In his decision, the ALJ found that the request for a hearing was untimely filed but incorrectly stated that the request was made by Plaintiff on March 1, 2010. (Id. at 7). He further considered the reasons Plaintiff provided for the untimely filing but held that those reasons were not sufficient to demonstrate "good cause" for the missed deadline under 20 C.F.R. § 404.911. (Id.). In so holding, the ALJ noted that:

First, the claimant has the responsibility to exercise a certain amount of due diligence in pursuing her claim. She had 60 days to file an appeal. She was aware of this time period, noting that she was looking for representation. Second, the initial denial letter clearly reflects the date of November 3, 2009, not the 13th or the 18th. There is nothing in the record to indicate an educational, linguistic, or mental impairment that would have prevented her from understanding the appeals period or the importance of filing a timely appeal. She could have called the 800 number or visited the local Social Security Office within the 60 day period to indicate that she wanted to file an appeal. (Id. at 8).

Next, on March 19, 2010, Nebel sent a letter to the ALJ on Plaintiff‟s behalf seeking reconsideration of the March 10, 2010 dismissal order. (Docket No. 8 at 17). She pointed out that the dismissal order incorrectly stated that Plaintiff‟s request for a hearing was filed on March 1, 2010 but that it was actually filed on January 15, 2010, providing as evidence of same a copy of the request as an attachment to the letter. (Id.). Nebel also states that she was not copied on the initial correspondence from the agency requesting further information about why the appeal was untimely. (Id.). She then provides further information corroborating the initial reasons which were given by Plaintiff. (Id.). Subsequently, Plaintiff‟s counsel contacted the agency and was advised verbally that the motion for reconsideration was denied. (Id. at 25, ¶ 20).

Plaintiff then submitted a timely request for review of the ALJ‟s decision with the Appeals Council by filing the appropriate form with the agency on May 14, 2010. (Id. at 20). Along with the form, Plaintiff submitted a letter brief from her counsel and an affidavit from the Plaintiff herself. (Id. at 20-26).

The Appeals Council denied Plaintiff=s request for review of the March 10, 2010 dismissal order on April 15, 2011. (Id. at 32-3). Plaintiff then initiated this civil action by filing her motion to proceed in forma pauperis and her Complaint on June 17, 2011. (Docket No. 1). The motion to proceed in forma pauperis was granted and her Complaint was filed on the same day. (Docket Nos. 2, 3).

The Commissioner responded to Plaintiff=s Complaint by filing a Motion to Dismiss and Brief in Support on September 9, 2011. (Docket No. 5). In support of his motion, the Commissioner also filed a declaration of Paul Halse, Acting Chief of Court Case Preparation and Review Branch 2 of the Office of Appellate Operations, Office of Disability Adjudication and Review, Social Security Administration, as well as portions of the administrative record including: the initial denial letter dated November 3, 2009; Plaintiff‟s request for a hearing received by the agency on January 15, 2010; the Order of Dismissal dated March 10, 2010; and the April 15, 2011 Notice of Appeals Council Action. (Docket No. 5-1). Plaintiff filed her brief in opposition on September 30, 2011, along with additional materials she had submitted to the agency, including: a Statement of Claimant or Other Person dated January 31, 2010; a March 19, 2010 Letter from Christine Nebel, Esquire seeking ...

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