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Barrett v. Commissioner of Social Security

United States District Court, Sixth Circuit

May 6, 2013

JOHN BARRETT, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, [1] Defendant.

REPORT AND RECOMMENDATION

KATHLEEN B. BURKE, Magistrate Judge.

On May 2, 2013, the parties filed a Joint Stipulation to Remand to the Commissioner ("Joint Stipulation") wherein they report the terms of an agreement reached to resolve this case and request that the Court enter judgment remanding the case for a hearing before an Administrative Law Judge ("ALJ") on the merits of Plaintiff John Barrett's application for social security disability benefits. Doc. 37. Upon consideration, the undersigned recommends that the Court enter judgment reversing and remanding this case in accordance with the terms of the parties' Joint Stipulation.

I. Procedural History

Plaintiff John Barrett ("Barrett") filed this action on August 17, 2012, alleging a Due Process violation consisting of the dismissal of his claim for benefits by the Social Security Administration ("Agency") without notice or an opportunity for a hearing. Doc. 1. On October 22, 2012, the Commissioner of Social Security ("Commissioner") filed a Motion to Dismiss and supporting brief, asserting that this Court lacked subject matter jurisdiction because the Agency's dismissal of plaintiff's claim was not a "final decision of the Commissioner... made after a hearing" as required for judicial review under 42 U.S.C. § 405(g). Doc. 9. Following briefing by the parties, on December 5, 2012, the undersigned issued a Report and Recommendation ("R & R"), recommending that the Commissioner's Motion to Dismiss be denied. Doc. 22. The Commissioner objected to the R&R. Doc. 23. On April 23, 2013, United States District Judge John R. Adams adopted the R & R in whole and denied the Motion to Dismiss. Doc. 35.

While the objection was pending, the case proceeded on the merits. The Commissioner filed the transcript of administrative proceedings on January 18, 2013 (Doc. 29) and the parties fully briefed whether the Commissioner's dismissal of Plaintiff's claim and denial of his request for an administrative hearing constituted a deprivation of his constitutionally protected property interests without due process of law. Doc. 30, Doc. 33, Doc. 34.

On May 2, 2013, after District Judge Adams denied the Commissioner's Motion to Dismiss, the parties filed their Joint Stipulation to Remand to the Commissioner. Doc. 37.

II. Factual Background

On or about March or April, 2009, Barrett filed his application for social security benefits. Doc. 1, ¶ 6, Tr. 64, 69.[2] On September 4, 2009, the Bureau of Disability Determination of the State of Ohio initially denied Plaintiff's application. Tr. 66. On October 21, 2009, Barrett requested reconsideration of that denial. Tr. 34, 65. In March 2011, Barrett's counsel contacted social security regarding Barrett's request for reconsideration and was informed that it had been denied on January 19, 2010. Tr. 10, 54. Barrett's counsel advised the Agency that he had not received the January 19, 2010, notice of denial. Tr. 10, 54. The Agency then issued a notice of denial of Barrett's request for reconsideration, which was dated March 18, 2011.[3] Tr. 28.

Following receipt of the March 18, 2011, notice of denial, on March 23, 2011, Barrett requested a hearing before an ALJ on the denial. Tr. 31. The ALJ issued an Order of Dismissal of Barrett's claim on or about August 2, 2011. Tr. 43-48. The ALJ's decision stated that Barrett's request for reconsideration had been denied on January 19, 2010, making his March 23, 2011 request for a hearing before an ALJ untimely. Tr. 47. The ALJ stated that Barrett "filed the request for hearing more than 65 days after the date of the notice of reconsideration determination." Tr. 47. Having concluded that the request was untimely, the ALJ then considered whether Barrett had shown "good cause" and concluded that Barrett "ha[d] not established good cause for missing the deadline to request a hearing." Tr. 47-48. In reaching this conclusion, the ALJ stated that "the agency has not heard from the claimant as to why he didn't file at an earlier date, and there is no statement that the claimant did not receive the Notice of Reconsideration."[4] Tr. 47-48. Barrett requested review by the Appeals Council of the ALJ's Order of Dismissal, and the Appeals Council denied review on June 29, 2012. Tr. 3.

In this action, Barrett asserted that neither he nor his counsel received a copy of the alleged January 19, 2010, denial of his request for reconsideration, which was referenced by the ALJ in his Order of Dismissal. Doc. 1, ¶ 12. Barrett alleges that the only denial he or his counsel received was the denial dated March 18, 2011. Doc. 1, ¶ 13. He further alleges that he timely filed a request for a hearing before an ALJ after receiving the March 18, 2011, denial. Doc. 1, ¶ 18. Barrett has supported these allegations with affidavits.

III. Parties' Proposed Joint Stipulation

The parties' Joint Stipulation provides, in part, that:

Given this Court's prior ruling on the Commissioner's motion to dismiss and the newly submitted evidence regarding the allegedly late filing of Plaintiff's request for a hearing before an Administrative Law Judge, the parties believe that a remand is appropriate in this case.
The parties agree that, on remand, having shown good cause for the allegedly late filing of the Plaintiff's request for a hearing before an Administrative Law Judge, Plaintiff will be provided the opportunity for an administrative hearing before an Administrative Law Judge on the ...

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