Coe v. Saul, 19 Civ. 10993 (PED)

Decision Date16 November 2020
Docket Number19 Civ. 10993 (PED)
PartiesSANDRA E. COE, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security Administration Respondent.
CourtU.S. District Court — Southern District of New York

DECISION AND ORDER

PAUL E. DAVISON, U.S.M.J.:

I. INTRODUCTION

Plaintiff Sandra Coe, pro se, brings this action pursuant to 42 U.S.C. § 405(g) challenging the decision of the Commissioner of Social Security ("Commissioner" or "agency") denying Plaintiff's application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). [Dkt. 2.] The matter is before me for all purposes pursuant to a Notice, Consent and Reference of a Civil Action to a Magistrate Judge entered on January 23, 2020. [Dkt. 12.] The Commissioner filed a motion for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c) on the grounds that Plaintiff did not timely seek review of the Administrative Law Judge's ("ALJ") denial of her request for a hearing, and that the Appeals Council's dismissal of her untimely application was supported by substantial evidence. [Dkt. 17, 18.] For the reasons that follow, the Complaint is DISMISSED.

II. BACKGROUND

Plaintiff filed applications for DIB and SSI on November 27, 2015. [R. 90.]1 Theapplications were denied, and Plaintiff timely requested a reconsideration hearing before an ALJ. [R. 146-47, 163-73.] On April 26, 2016, Plaintiff retained attorney Lori Lembeck of the law firm Binder & Binder as her primary representative. [R. 143.] On April 12, 2018, Plaintiff also retained Attorney Gabrielle Muller of the Advocator Group to act as her representative. [R. 80.] On the same day, Attorney Lembeck entered into a fee sharing agreement with Attorney Muller, which Plaintiff also signed.2 [R. 81.]

A hearing was held on April 12, 2018, at which Plaintiff appeared with Attorney Muller. [R. 11-21.] The ALJ observed a significant lack of medical records. [R. 17-21.] Attorney Muller conceded that her office failed to timely request Plaintiff's records from her healthcare providers, and, as a result, Plaintiff's file was largely incomplete. [R. 17, 19.] The ALJ adjourned the hearing and directed Plaintiff to submit the missing medical evidence. [R. 21.]

The ALJ scheduled a second hearing for July 26, 2018. The agency mailed a Notice of Hearing to Plaintiff at her correct home address3 and to Attorney Lembeck on July 12, 2018. [R. 46-48.] The Notice of Hearing stated, "If you do not appear at this hearing, and do not provide a good reason why you did not appear, the administrative law judge (ALJ) will dismiss your request for hearing without further notice." [R. 46.] (emphasis in original). A representative from the Advocator Group mailed a letter dated July 12, 2018 to the ALJ acknowledging the July 26 hearing. [R. 187.] On July 23, 2018, Plaintiff contacted the Agency by telephoneconfirming her intent to appear at the hearing. [R. 186.]

Neither Plaintiff nor her attorneys appeared at the July 26 hearing, and, on August 1, 2018, the ALJ dismissed Plaintiff's hearing request. [R. 6-10.] According to a July 27, 2018 Report of Contact, Plaintiff had called the agency a day after the hearing and stated that she was not allowed into the building because she had had a bottle of liquor in her bag. [R. 184.] According to the Order of Dismissal, another individual associated with Plaintiff's representative's office happened to be present on the day of the hearing. [R. 10.] This individual was not Plaintiff's representative and did not have an executed SSA Form 1696 designating him as Plaintiff's representative. Id. However, this individual attempted to contact Plaintiff on her cell phone but was unable to reach her. Id. In dismissing the hearing request, the ALJ found that Plaintiff had failed to show good cause for her failure to appear, a well as her representative's failure to appear. Id.

Plaintiff's attorneys did not contact the agency until the day after the ALJ's Notice and Order of Dismissal. On August 2, 2018, an unnamed representative4 from the Advocator Group sent a letter to the ALJ asking to reschedule the hearing. [R. 43.] The letter offered no explanation whatsoever for counsel's failure to appear. The letter explained that Plaintiff had been turned away from the building because she had had a bottle of liquor in her purse. Id. Plaintiff had left and allegedly returned several minutes later, but was turned away again. Id. Another unsigned, unnamed letter was sent from the Advocator Group to the ALJ on August 6, 2018. [R. 183.] The letter was identical to the earlier letter, except that the date had been changed. [R. 47, 183.] On the same day, someone named "Denise" from the Advocator Groupcalled the agency and referred to the August 2 letter as a response to a "Show Cause Notice"5 and asked that the hearing be rescheduled. [R. 182.]

The Notice of Dismissal stated that Plaintiff could appeal the ALJ's dismissal by filing a written request with the Appeals Council within 60 days of the date on which she received the Notice and Order of Dismissal. [R. 6-7.] The Notice of Dismissal also explained that the Appeals Council will presume that Plaintiff will have received the Notice and Order of Dismissal five days after the date of dismissal, unless Plaintiff could show otherwise. [R. 7.] Plaintiff, therefore, had until October 5, 2018 to file her application with the Appeals Council. The Notice of Dismissal stated, "The Council will dismiss a late request unless you show you had a good reason for not filing it on time." Id.

At some point, Plaintiff retained Attorney Robert Buckley to represent her in connection with her appeal. [R. 42.] On October 11, 2018, after the expiry of Plaintiff's time to file an application with the Appeals Council, Attorney Buckley withdrew from representation.6 Id. On November 13, 2018, Plaintiff retained Attorney Max Leifer as counsel. [R. 39-40.] On November 15, 2018, Attorney Leifer sent a letter to the Appeals Council asking that Plaintiff's case be remanded for hearing on the basis that Plaintiff experienced mental and emotional problems.7 [R. 31-39.]

On November 28, 2018, the Appeals Council sent written notice to Plaintiff and AttorneyLeifer that Plaintiff's request for review of the ALJ's dismissal had not been timely filed. [R. 26-28.] The November 28 Notice indicated that the Appeals Council had not found good cause for Plaintiff's late filing, but Plaintiff could provide additional information and evidence with instructions for doing so. Id. Plaintiff filed no response to this notice.

The Appeals Council sent Plaintiff and Attorney Leifer an additional notice dated June 11, 2019 further explaining that Plaintiff's application to the Appeals Council had been filed untimely without explanation.8 [R. 22-24.] The Appeals Council gave Plaintiff an additional 60 days to provide information and evidence showing good cause for her late filing. [R. 22.] Attorney Leifer filed a response dated June 19, 2019 explaining that his office had not been retained until after the expiry of Plaintiff's time to file her request with the Appeals Council, but offered no other explanation as to why Plaintiff had not filed her request with the Appeals Council on time. [R. 179.] The response also incorrectly claimed that Plaintiff had not been represented by counsel during that time. Id. He asked that Plaintiff's case be remanded on the basis that the ALJ dismissed her case rather than denying it on the merits. Id. He also claimed that Plaintiff was not allowed in the building at the time of her hearing before the ALJ because she had experienced a "meltdown" in the lobby. Id.

By order dated October 21, 2019, the Appeals Council dismissed Plaintiff's request for review. [R. 1-4.] The Appeals Council found that Plaintiff failed to show good cause as to why her request to review the ALJ's dismissal was untimely and dismissed it pursuant to 20 C.F.R.§§ 404.971 and 416.1471. [R. 3.]

Plaintiff timely filed a pro se form Social Security Complaint, which was made available through this district's pro se office. [Dkt. 2.] Pursuant to this district's Standing Order on Social Security Cases, the Honorable Cathy Seibel issued a scheduling directing, inter alia, that Plaintiff respond to the Commissioner's motion for judgment on the pleadings, if any, within 60 days. [Dkt. 5.] The Standing Order on Social Security Cases was mailed to Plaintiff on December 4, 2019 with a pro se packet. [see Dkt. 3, 7.]

The Commissioner filed the administrative record, which was served on Plaintiff on April 1, 2020. [Dkt. 15, 16.] The Commissioner filed a motion for judgment on the pleadings on June 1, 2020, to which Plaintiff had an additional 60 days to respond through July 31, 2020. [Dkt. 17.] Plaintiff did not file a response, and, by order dated September 9, 2020, I granted Plaintiff an additional 30 days through October 9, 2020 to file a response. [Dkt. 20.] I warned that, if Plaintiff did not oppose the Commissioner's motion, the Court would decide the motion based solely on the Commissioner's submissions. Id. Plaintiff did not file a response. Therefore, the matter has been fully submitted and is ripe for decision.

III. DISCUSSION

A. Legal Framework

This case presents a matter of first impression in this district as to whether a dismissal by the Appeals Council on timeliness grounds after a plaintiff has not received an ALJ hearing on the merits is reviewable by a federal court as a final agency decision under Section 405(g), in light of the Supreme Court's decision in Smith v. Berryhill, 139 S.Ct. 1765 (2019).

The doctrine of sovereign immunity prevents the federal government form being sued "without its consent." United States v. Navajo Nation, 556 U.S. 287, 289 (2009). For thepurposes of Social Security claims, the United States has consented to be sued under the limited circumstances provided by 42 U.S.C. § 405(g). The statute states, in relevant part:

Any individual, after any final decision of the
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