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Everman v. Commissioner of Social Security

United States District Court, E.D. Michigan, Southern Division

August 22, 2016

MELODY LYNN EVERMAN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Stephanie Dawkins Davis Defendant.

          Melody Lynn Everman, Plaintiff, represented by John C. Chowning, Vigiletti, Chowing.

          Commissioner of Social Security, Defendant, represented by Lynn Marie Dodge, U.S. Attorney's Office & Niranjan Emani, Social Security Administration.

          REPORT AND RECOMMENDATION CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkt. 25, 27)

          STEPHANIE DAWKINS DAVIS, Magistrate Judge.

         I. PROCEDURAL HISTORY

         A. Proceedings in this Court

         On June 24, 2013, plaintiff filed the instant suit seeking judicial review of the Commissioner's unfavorable decision disallowing benefits. (Dkt. 1). Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), District Judge Denise Page Hood referred this matter to Magistrate Judge Michael Hluchaniuk for the purpose of reviewing the Commissioner's decision denying plaintiff's claim. (Dkt. 4). Previously, defendant filed a motion to dismiss for lack of subject matter jurisdiction. (Dkt. 9). On June 25, 2014 Judge Hluchaniuk recommended denial of that motion, concluding that plaintiff had stated a colorable constitutional claim and that a decision on the merits of that claim could not be made until the record was filed with the Court. (Dkt. 15). That recommendation was adopted by Judge Hood on September 29, 2015. (Dkt. 18). On April 14, 2016, this matter was reassigned to the undersigned. See Text-Only Order dated 4/14/16. The Court ordered defendant to file an answer and transcript by May 27, 2016. (Dkt. 19). After requesting and receiving an extension of time, the transcript was filed by the Commissioner on June 10, 2016. (Dkt. 22). Plaintiff filed her motion for summary judgment on July 12, 2016. (Dkt. 25). The Commissioner filed her motion for summary judgment on August 5, 2016. (Dkt. 27). On August 12, 2016, plaintiff filed a reply. (Dkt. 28). This matter is now ready for report and recommendation.

         B. Administrative Proceedings

         Plaintiff first filed an application for disability insurance and supplemental security income benefits on August 17, 2011. (Dkt. 22, Pg ID 110-113). Plaintiff's application was denied initially on November 2, 2011. (Dkt. 22, Pg ID 168). On April 25, 2012, plaintiff filed a written request for a hearing. (Dkt. 22, Pg ID 168; Dkt. 22, Pg ID 158-159). On May 10, 2012, an administrative law judge dismissed plaintiff's request for a hearing because it was not timely filed and plaintiff failed to establish good cause for the late filing. (Dkt. 22, Pg ID 168-169). The ALJ noted that plaintiff stated that she missed the deadline to request a hearing because of the nature of her disability, which includes severe and longstanding headaches and a "psychiatric situation." Id. Plaintiff claimed that she was unable to concentrate long enough to file her appeal. Id.

         After considering plaintiff's explanation, the ALJ determined that plaintiff did not establish good cause for missing the deadline. The ALJ relied on recent at the time mental health treatment notes which indicated that plaintiff had the ability to make and keep doctor appointments. The ALJ also relied on emergency room records from the period between her denial and her request for a hearing, indicating that plaintiff did not complain of any headaches, as well as a mental status examination indicating normal mood and affect. Id. Based on the foregoing, the ALJ denied plaintiff's untimely request for a hearing, finding no good cause for the delay. Id. Plaintiff requested review of the ALJ's order of dismissal and on April 25, 2013, the Appeals Council denied her request for review. (Dkt. 22, Pg ID 170-173).

         For the reasons set forth herein, the undersigned RECOMMENDS that plaintiff's motion for summary judgment be DENIED, that the Commissioner's motion for summary judgement be GRANTED, and that the findings of the Commission be AFFIRMED.

         II. DISCUSSION

         A. Legal Standards

         It is well-settled that a "court may not review a refusal to reopen an application for benefits absent a constitutional challenge." Blacha v. Sec'y of Health & Human Servs., 927 F.2d 228, 231 (6th Cir. 1990), citing Gosnell v. Califano, 625 F.2d 744, 745 (6th Cir. 1980); Ingram v. Sec'y of Health & Human Servs., 830 F.2d 67, 67 (6th Cir. 1987), citing Califano v. Sanders, 430 U.S. 99 (1977). As noted in Parker v. Califano, 644 F.2d 1199 (6th Cir. 1981):

[The Supreme Court in Sanders ] noted that the clear language of Section 205(g) indicated that the federal courts' jurisdiction under the [Social Security] Act is limited to review of a final decision of the Secretary made after a hearing.' [ Sanders, 430 U.S.] at 108. The Court held that because a petition to reopen may be denied without a hearing Congress did not intend Section 205(g) to provide the jurisdictional ...

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