Howard v. Apfel

• Decision Date: 10 August 1998
• Docket Number: No. 97-0812-CV-W-BC-SSA.,97-0812-CV-W-BC-SSA.
• Parties: Sue HOWARD, SSN: [488-48-5514], Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Western District of Missouri

17 F.Supp.2d 955

Sue HOWARD, SSN: [488-48-5514], Plaintiff, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant.

No. 97-0812-CV-W-BC-SSA.

United States District Court, W.D. Missouri, Western Division.

August 10, 1998.

COPYRIGHT MATERIAL OMITTED

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND REVERSING THE DECISION OF THE COMMISSIONER OF SOCIAL SECURITY

LARSEN, United States Magistrate Judge.

Plaintiff Sue Howard seeks review of the final decision of the Commissioner of Social Security denying plaintiff's application for a period of disability under Title II of the Social Security Act ("the Act"), 42 U.S.C. § 401, et seq., from the period of January 21, 1991 (the onset date) through April 21, 1993 (the date her disability benefits began pursuant to a second application). Plaintiff argues that the Commissioner's decision not to reopen and revise the first denial is not supported by substantial evidence and that plaintiff's due process rights have been denied. I find that (1) ALJ Cohen did not implicitly reopen the first application; (2) ALJ Mansfield's denial of plaintiff's request for a hearing does not amount to administrative res judicata; (3) plaintiff was denied due process since she was not given an opportunity to present her argument on why the request for hearing was timely and was not given an opportunity to present evidence on the issue of good cause; (4) plaintiff was denied due process since the SSA made a finding that her request for hearing was untimely which was contrary to the regulations and interpretations adopted by the SSA; and (5) because ALJ Cohen found plaintiff disabled as of the day after the denial on reconsideration of her first application (April 21, 1993) and the evidence in the record establishes that plaintiff's condition was substantially the same in 1991 as it was in 1993, remand is not warranted and plaintiff is entitled to an award of benefits covering the period January 21, 1991, to April 20, 1993. Therefore, plaintiff's motion for summary judgment will be granted and this case will be remanded for an award of benefits from January 21, 1991, through April 20, 1993.

I. BACKGROUND

There are two applications for social security benefits involved in this case: (1) an application for disability benefits and supplemental security income dated July 31, 1992 (hereinafter referred to as the first application) (Tr. at 77-80, 85-88), and (2) an application for disability benefits and supplemental security income dated January 4, 1994, (hereinafter referred to as the second application) filed after the first application was denied by the Appeals Council on December 10, 1993 (Tr. at 132-133, 134-137, 144-147). Plaintiff did not pursue an appeal to the district court following the denial of her first application, but instead filed the second application with the agency. The second application resulted in the award of benefits to plaintiff; however, the benefits were ordered paid from the day after plaintiff's first application was denied on reconsideration by the agency, that is, April 21, 1993.

The issue is whether plaintiff is entitled to recover benefits going back to the original date of disability onset, that is, January 21, 1991. Plaintiff argues that the agency's decision not to reopen and revise the denial of benefits from the first application is not supported by substantial evidence and should be reversed. Defendant argues that the agency's decision to deny reopening the first application was based on administrative res judicata and is not subject to review by the district court and that plaintiff has waived any alleged right to recover benefits for the period in question (January 21, 1991, to April 20, 1993) because she did not appeal the agency's denial of her first application to the district court but instead filed her second application with the agency. In reply, plaintiff argues that her constitutional rights under the due process clause have been violated by the agency's denial of these benefits.

A. THE FIRST APPLICATION

Plaintiff filed her first application for disability insurance and supplemental income on July 31, 1992 (Tr. at 77-80, 85-88). In her application, plaintiff stated that she had been unable to work since January 21, 1991 (Tr. at 77). Prior to applying for social security benefits, plaintiff had been receiving other disability benefits which ended on June 30, 1992 (Tr. at 77).

On January 7, 1993, the agency denied plaintiff's application finding that she was not disabled (Tr. at 81-82). The agency listed plaintiff's primary diagnosis as osteoarthrosis and allied disorders, and her secondary diagnosis as sprains and strains (Tr. at 81). In the disability determination and transmittal form, the agency stated:

The following reports were used in deciding your claim: Harry G. Miller, M.D., 3/9/92 and 3/16/92; [ex:B22] Bothwell Regional Health Center; [ex:21] 9/27/91-12/3/91; Golden Valley Memorial Hospital; [ex:25] 11/3/92-12/28/92; F. Wendell Pence, M.D., 9/9/92 [ex:23].¹

We have determined that your condition is not severe enough to keep you from working. We considered the medical and other information, your age, education, training, and work experience in determining how your condition affects your ability to work.

You said you are disabled because of high blood pressure, rib and leg problems. The medical evidence shows that you are under treatment for these impairment(s) and that your activities are somewhat restricted by your condition.

In spite of these restrictions the evidence shows that your are able to return to your past work as a Moulding Machine Operator.

(Tr. at 82).

In the Social Security Notice send to plaintiff on January 7, 1993, she was advised of the following concerning her right to appeal the denial of her disability benefits and supplemental income security payments:

YOUR RIGHT TO APPEAL

If you think we are wrong, you can ask that the determination be looked at by a different person. This is called a reconsideration. IF YOU WANT A RECONSIDERATION, YOU MUST ASK FOR IT WITHIN 60 DAYS FROM THE DATE YOU RECEIVE THIS NOTICE.² IF YOU WAIT MORE THAN 60 DAYS, YOU MUST GIVE U.S. A GOOD REASON FOR THE DELAY. Your request must be made in writing through any Social Security office. Be sure to tell us your name, Social Security number and why you think we are wrong. If you cannot write to us, call a Social Security office or come in and someone will help you. You can give us more facts to add to your file. However, if you do not have the evidence yet, you should not wait for it before asking for a reconsideration. You may send the evidence in later. We will then decide your case again. You will not meet with the person who will decide your case. Please read the enclosed leaflet for a full explanation of your right to appeal.

(Tr. at 83, 90).³

On March 9, 1993, plaintiff signed and submitted a request for reconsideration to the agency (Tr. at 93). Plaintiff's request for reconsideration was denied on April 20, 1993 (Tr. at 93, 99). In the disability determination rationale section, the agency indicated it had considered the following medical and vocational reports in denying plaintiff's request:

Dr. B. Townsend, records 10/28/92 to 1/05/93, [ex:26] Henry County Division of Family Services, record of 10/05/92 [ex:24].⁴

Plaintiff and her then-attorney, Mr. Dan K. Purdy, were sent notices of the decision (Tr. at 97, 100). In the notice, the agency advised plaintiff and her attorney:

If you believe that the reconsideration determination is not correct, you may request a hearing before an administrative law judge of the Office of Hearings and Appeals. If you want a hearing, you must request it not later than 60 days from the date you receive this notice. You may make your request through any Social Security office. Read the enclosed leaflet and the reverse side of this notice for a full explanation of your right to appeal.⁵

YOUR RIGHT TO APPEAL

If you still are not satisfied with the decision, you may request a hearing of this decision by the Office of Hearings and Appeals. YOU MUST REQUEST THE HEARING IN WRITING WITHIN 60 DAYS FROM THE DATE YOU RECEIVE THIS NOTICE. If you cannot send us a written request for a hearing within 60 days, be sure to contact us by phone. If you wait longer than 60 days, we will not conduct a hearing review of our decision unless you have a good reason for the delay.⁶

(Tr. at 100-101).

On June 24, 1993, plaintiff and her attorney signed a request for hearing by administrative law judge (Tr. at 103-104). The form instructs the claimant to "[t]ake or mail original and all copies to your local Social Security Office" (Tr. at 103). In the acknowledgment of request section of the form, an agency employee (Arlissa Johnson) noted that the request was received on June 28, 1993, and that the request was "timely filed" (Tr. at 103).

On July 6, 1993, someone wrote a memorandum to the file noting that the request for a hearing was dated June 28, 1993; the agency denied reconsideration on April 20, 1993; and therefore plaintiff's request was four days late; and that no "good cause" had been provided (Tr. at 105). The memorandum was initialed by ALJ Frank C. Mansfield. The next day, an agency employee from the Office of Hearings and Appeals, L. Holloway, contacted Arlissa Johnson, the claims representative in Nevada, Missouri, to find out "why she marked the Request for Hearing as timely filed" (Tr. at 106). Ms. Johnson stated that "she considered the date claimant and her attorney signed the Request for Hearing which would be timely filed (6/24/93)" (Tr. at 106). On July 15, 1993, just eight days after the agency employee told the Office of Hearings and Appeals that she believed the request was timely, the ALJ dismissed plaintiff's appeal without affording plaintiff a hearing or any other opportunity to explain the alleged untimely request for a hearing (Tr. at 109-110). In that decision, the...