Amicus Curiae Brief — Smith v. Berryhill, 139 S. Ct. 1285 (2019) (No. 17-1606)

No. 17-1606

ee - - ———~

Iu The

Supreme Court of the United States

=

RICKY LEE SMITH,

Petitioner,

Vv.

NANCY A. BERRYHILL,

Acting Commissioner, Social Security Administration,

Respondent.

z

Se ne roe

United States Court

For The Sixth Circale

TABLE OF CONTENTS

Page

TABLE, OF CONTENTS .00000000cccseccsscssscsscsesseeseeseees i

TABLE OF AUTHORITIES .......0............64.6666 ii

INTEREST OF AMICUS CURIAE.......................... |

SUMMARY OF THE ARGUMENT ........................ l

Ee 3

|. The disability claims process is long, compli-

cated, and can be confusing to claimants.... 3

Il. Prior decisions of this court resolve the is-

BUS Of juriadiction. .........00s00srcesessssseseseeseeees 14

Ill. The Appeals Council's wrongful dismissals

cause harm to claimants.................000000 17

8B. Appeals Council dismissals entail less

peals Council dispositions..................... 20

D. Appeals Council denials on the merits

are often erroneous, resulting in fre-

quent federal court reversals................ 23

IV. Allowing review of Appeals Council dismis-

i ccrtecscstiecesntvenrenictrertzenmenensess 26

ss

TABLE OF AUTHORITIES

Page

CASES

Aguiniga v. Colvin, 833 F.3d 896 (8th Cir. 2016)....... 29

Barnes v. Astrue, No. 08-2294, 2010 WL 1416884

EE eee 20

Barnhart v. Thomas, 540 U.S. 20 (2003) ...................... 5

Barrett v. Berryhill, 906 F.3d 340 (5th Cir. 2018) ......26

Bastien v. Califano, 572 F.2d 908 (2d Cir. 1978).......... 7

Biestek v. Berryhill, No. 17-1184 (sub judice) .............. 6

Bloodsworth v. Heckler ,'703 F.2d 1233 (11th Cir.

Sa nihnsiccsnpiricininiiientadnttenieitaiidinsdaieniniainidibiantilmmsatgeeetenstan 2

Bowen v. City of New York, 476 U.S. 467

Suet iccnccantoniibedanbistequsletnceionntetmiensinisesiigdianddneen 1, 3, 12, 16

Draper v. Sullivan, 899 F.2d 1127 (11th Cir.

SEED cctoncsincinneinisonennacltiabeninsisimpiaigslanpstnetibeiiimiadabaanenet: 29

Dugan v. Sullivan, 957 F.2d 1384 (7th Cir. 1992)......... 29

Hart v. U.S. Com’r Social Sec. Admin., Civ. No.

09-cv-1401, 2011 WL 1211548 (W_D. La., Mar.

SEE, SEINE inndilienenniuininninanntgdemnieitnticpianbiadigiimenasnanetnesin 18

Heckler v. Campbell, 461 U.S. 458 (1983)..................... 6

Hopgood ex rel. L.G. v. Astrue, 578 F.3d 696 (7th

SE TITY eesecininnintinsandiniemiithiaadanineaicenmsaiiiatindnineinass 25

Howard v. Apfel, No. 97-0812-CV-W-BC-SSA, 17

F.Supp.2d 955 (W.D. Mo. 1998) ....................cccce0000+- 20

Jones v. Astrue, 526 F.Supp.2d 455 (S.D.NLY.

SIT csconsinsntinindebicmmntndtnenainibabinsieieiaiianiaphidinmapintei 17, 18

sas

TABLE OF AUTHORITIES — Continued

Page

Jones v. Astrue, No. 09 Civ. 5577 (DAB) (FM),

2011 WL 3423771 (S.D.N_Y., Jul. 15, 2011)............ 18

Lively v. Secretary of Health and Human Ser-

vices, 820 F.2d 1391 (4th Cir. 1987)........................ 29

Mathews v. Eldridge, 424 U.S. 319 (1976)........ 1, 15, 16

Matsibekker v. Heckler, 738 F.2d 79 (4 Cir.

REESE EPR Re a eR oe RE nee A 13

Nguyen v. Colvin, No. 16-cv-1535-JAH-AGS, 2018

WL 1510460 (S.D. Cal., Mar. 27, 2018)................... 13

Oberg v. Astrue, 472 Fed. Appx. 488 (9th Cir.

Stl cinitaditdinsensicdintindniabiansconmmeddindiediitieemiaitissittiansiiente 29

Quarles v. Colvin, No. 15-00572-N, 2016 WL

4250399 (S.D. Ala., Aug. 10, 2016).......................... 28

Richards v. Apfel, No. C-98-4132-CAL, 1999 WL

252477 (N.D. Cal., Apr. 14, 1999).................00.0+..2+++ 20

Ritchie v. Apfel, No. 98-226-B, 1999 WL 1995198

ee ls IE Seis SIE ciecniediideedececteviseensenssennsenesnenesss 13

Sims v. Apfel, 530 U.S. 103 (2000) ...............cccccceceeeeeeee 5

Sullivan v. Zebley, 593 U.S. 521 (1990)........................ 4

Vargas v. Colvin, No. 14-20133-CR, 2014 WL

6384150 (S.D. Fla., Oct. 28, 2014), report and

recommendation adopted, 2014 WL 6455366

ee ee 28

Walker v. Commissioner of Social Sec., 2013 WL

3833199 No. 6:12-cv-1025-Orl-DAB (MLD. Fia.,

ee ee Gcincncicectectniiencnetadernisleniditaitididieseaianerseneed 28

iv

TABLE OF AUTHORITIES — Continued

Page

Wallschlaeger v. Schweiker, 705 F.2d 191 (7th

arn a iiciiendesecwinhsdaneedinienionascnasmmiatgiainiatsimnibiniadnenensnsed 4

Washington State Dept. of Social and Health

Services v. Guardianship Estate of Keffeler,

a ee a I dicitoiicsnentrmncietnlnciiéiniasteditansinenneente 3

Weinberger v. Salfi, 422 U.S. 749 (1975) .... 1, 14, 15, 16

Yenik v. Commissioner of Social Sec., 522 Fed.

a ee an ctennsniccnsintinitetiotinttiicamenciectess 8

STATUTES

I I cos itanilincaleenibeindiaiateabetiaamneabannin 18

IED nnrccnseninnisigtinteininitenninnniinmpimeeinibel 6

TT ainicsinrcicnertinansincenitetaniitniendinenesianst passim

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Oe iciiiennnceusecessenituentndaneavuneidniaaiiiahisitinnd 9

RULES

asin tsintnstineatshltiatinmpeimmenpenaneieans 7

ET eC eT 7

SD CF GG BE irccccccccccscncsccccrersccsveccccossesensse 29

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TABLE OF AUTHORITIES — Continued

Page

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I ind a nenistiepnieniatnsdgiidsemmnennsentiniian 11

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es Ce si cticesccscitessciuniicninesnemenontonssisins 10

inca tarrieneendgtetitpalepdinninicinentibinli 5

nen 5

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oii sonerersnnsenpsmnescemiananepeicenseesianel 6

I .ciesiscensetipnemaianiinesiaincemabis 7

i a ricencmntinenineinltibiiadiiiaihe 7

sas cosaeesnatemnsnnnneninabieoeoniatii 7

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I oi rcrseniinirsiscaitanngeieiiennieniiatian 19

I cictiiincsdenssienseanennnianssienicienasmuianceni 9, 20

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a sesiioniboateais 25

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ices sapere ptciansiantnatainiti’ 6

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TABLE OF AUTHORITIES — Continued

Page

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ET I ae Re Ree MAE 6

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EER Tene eae Re SEER 5

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vii

TABLE OF AUTHORITIES — Continued

Page

20 C.F-R. Part 404, Subpart P, Appendix 2.................. 6

Sis TN IIIT TT rises eleeen sigan etinationpiaennioetedenestel 6

OTHER AUTHORITIES

Administrative Conference of the United States,

Improving Consistency in Social Security Dis-

ability Adjudications, https://www.acus.gov/

recommendation/mproving-consistency-social-

security-disability-adjudications#_ftnref18........... 25

Charles H. Koch, Jr. & David A. Koplow, The

Fourth Bite at the Apple: A Study of the Oper-

ation and Utility of the Social Security Admin-

istration’s Appeals Council, 17 Fla. St. U. L.

ESTE Re a 22

EE ID nsiiiiicinssnceosmennersesenenmnnenvinemncseeces 29

Office of the Inspector General, Request for Re-

view Workloads at the Appeals Council, Report

Number A-12-13-13039, March 7, 2014 ........... 21, 22

et | ee 5

POMS GN 03101.010(A)(1) ............cccccceceeeeeeeeeeeeneeenees 11

Soc. Sec. Admin., Annual Data for Average Pro-

cessing Time of Appeals Council Requests for

Soc. Sec. Admin., Appeals Council Request for

Review, https-//secure.ssa.gov/iAppINMD/oao ....... 23

ese

TABLE OF AUTHORITIES — Continued

Soc. Sec. Admin., Appeals to Court as a Percent-

age of. ‘Appealable AC Dispositions, https-//www.

ssa.gov/appeals/DataSets/AC04_ NCC _ Filed_

De ceecsantensccsseresicnessseminccsieanienen 26

Soc. Sec. Admin., Appointed Representative Guide

to Requesting Appeals Council Review, https://

www.ssa.gov/appeals/reps/Appt_Rep Guide_

Req AC_Review_Submit_Evidence.pdf................... 8

Soc. Sec. Admin., Brief History and Current In-

formation About the Appeals Council, https://

www.ssa.gov/appeals/about_ac.html ................ 10, 22

Soc. Sec. Admin., Court Remands as a Percent-

age of New Court Cases Filed, https://www.ssa.

Soc. Sec. Admin., Fiscal Year 2017 Congressional

Justification, https:/Awww.ssa.gov/budget/FY 17

Soc. Sec. Admin., Fiscal Year 2018 Congressional

Justification, https//www.ssa.gov/budget/FY 18

Files/2018.JEAC. pdf .............cccccccceeeeeeeeeeeeeeeeeeeeees 9, 24

Soc. Sec. Admin., Fiscal Year 2019 Congressional

Justification, https://www.ssa.gov/budget/Files/

Se ececssnnsenscesesescsensinssesessmanmininannnain 11, 24, 28

Soc. Sec. Admin., Hearing Office Average Pro-

cessing Time Ranking Report FY 2019, https-//

www.ssa.gov/appeals/DataSets/05_ Average _

Processing Time Report.html ............................... 12

TABLE OF AUTHORITIES — Continued

Page

Soc. Sec. Admin., What is FICA?, https//www.ssa.

gov/thirdparty/materials/pdfx/educatorw What

is-FICA-Infographic-EN-05-10297 pdf ........0.0.000......8

U.S. District Courts, Civil Cases Commenced, by

Nature of Suit and District, During the 12-

Month Period Ending September 30, 2017,

http//www.uscourts.gov/sites/default/files/data

INTEREST OF AMICUS CURIAE'

The National Organization of Social Security Claim-

ants’ Representatives (NOSSCR) is a national mem-

bership organization comprising approximately 2,900

individuals, mostly attorneys, who represent individ-

uals applying and appealing claims for Social Secu-

rity and Supplemental Security Income (SSI) benefits.

NOSSCR members include employees of legal services

organizations, educational institutions, and other non-

profits; employees of for-profit law firms and other

businesses; and individuals in private practice.

°

SUMMARY OF THE ARGUMENT

The Social Security Administration's policy disal-

lowing judicial review of Appeals Council dismissals

is unfair, harmful to claimants, and contrary to this

Court’s precedent.

City of New York, 476 U.S. 467 (1986), Mathews v.

Eldridge, 424 U.S. 319 (1976), and Weinberger v. Saifi,

422 U.S. 749 (1975), this Court recognized the rights of

2

claimants to seek judicial review despite failure to ex-

haust administrative remedies. The Eleventh Circuit's

decision in Bloodsworth v. Heckler, 703 F.2d 1233, 1239

(11th Cir. 1983) is consistent with this Court’s prece-

dent.

The Social Security Administration makes errors

in reviewing claims, and its policy deprives claimants

of an opportunity to correct those errors. Claimants

who cannot seek judicial review of Appeals Council dis-

miseals lose any opportunity to collect benefits to

which they may be entitled. Several factors suggest

that some Appeals Council dismissals are incorrect

and should be reversed. The Appeals Council is under-

staffed and overwhelmed, and therefore prone to error.

The Appeals Council devotes fewer resources to dis-

missals than other dispositions, as they require review

of only a single adjudicator, while other dispositions re-

quire the review of two or three adjudicators. There is

a high rate of error in Appeals Council determinations,

as half of the cases denied by the Appeals Council on

the merits which are appealed to federal court are re-

versed.

The Social Security Administration acknowledges

the possibility of error in the dismissal of claims, as it

permits review to claimants whose cases are dismissed

at earlier stages of the application process. However,

the Administration precludes review of dismissals at

the Appeals Council stage, without explaining why it

does not permit correction of errors by the Appeals

Council. Cases from within the Eleventh Circuit, and

more recently the Seventh Circuit, demonstrate that

3

the Appeals Council does in fact make errors, and judi-

cial review is necessary to correct those errors. Claim-

ants who do not live within the Seventh or Eleventh

Circuits are foreclosed from seeking review of errone-

ous Appeals Council dismissals. Permitting judicial

review of Appeals Council denials would result in a

miniscule increase in the federal court caseload, but

would prevent a significant loss of benefits to claim-

anta.

*

ARGUMENT

lL. The disability claims process is long, com-

plicated, and can be confusing to claimants.

The federal disability program is comprised of two

programs. The first, Social Security Disability Insur-

ance Benefits (SSDIB), are paid to disabled persons

who have contributed to the Disability Insurance Pro-

gram through FICA? withholding, and to their depend-

ents. 42 U.S.C. § 423(a)(1); City of New York, 476 U.S.

at 470. The amount of the monthly benefit is based

upon the amount the individual has paid into the pro-

gram through FICA withholding. The second, Supple-

mental Security Income (SSI), is paid to financially

needy disabled persons, including children, whose in-

come and assets fall below specified levels. 42 U.S.C.

§ 1382(a); Washington State Dept. of Social and Health

* FICA, the Federal Insurance Contributions Act, is a payroll!

eee ey = etter me mY

materiale/pdfWeducatorW hat is FICA Infographic EN 06. 10297

A

Services v. Guardianship Estate of Keffeler, 537 US.

371, 375 (2003). The amount of the monthly benefit is

set by federal law, although each State has an option

of supplementing the federal benefit amount, and

many States do so.

The definition of disability is virtually the same

for both programs:’ the inability to do one’s former job

or any other job which exists in significant numbers

in the national economy, considering the applicant’s

age, education, and past work experience. 42 U.S.C.

$§ 423(dX 2X A), 1382c(aX3XB); 20 C.F.R. §§ 404.1505(a),

416.905(a).*

For both the SSDIB and SSI programa, the lengthy

and complex application process is identical. Indeed,

the process is so complicated that it has been called a

“byzantine labyrinth.” Wallschlaeger v. Schweiker, 705

F.2d 191, 194 (7th Cir. 1983).

First, the individual muat file a written or elec-

tronic application and provide medical documents or

medical releases to supply proof of her disability.’ 20

C.F.R. §§ 416.310, 422.505. If her application is denied,

the Social Security Administration will provide her

with a written notice of denial. She then must submit

a written request for reconsideration, along with any

* The one exception — the definition of disability for disabled

indigent children in the SSI program _ is not relevant to this case.

Sullivan v. Zebley, 693 U.S. 621 (1990).

* All citations are to the April 1, 2018 20 C.F_R.

* The Social Security Administration does not accept oral re

quests at any stage of the process.

5

additional information she possesses regarding her

inability to work. 20 C.F_R. §§ 404.909(a), 416.1409(a).

The request for reconsideration form may be com-

pleted and submitted online. Social Security Admin-

istration Program Operations Manual System (POMS)

DI 27001.001(B)4).

The Social Security Administration will provide a

written determination of the reconsideration request.

20 C.F.R. §§ 404.922, 416.1422. If the determination

is unfavorable, the applicant has the right to request,

in writing, a hearing before an Administrative Law

Judge.*

A Social Security hearing is inquisitorial, not ad-

versarial, 20 C.F.R. §§ 404.900(b), 416.1400(b); Sims

uv. Apfel, 530 U.S. 103, 110-11 (2000). At the hearing,

which is recorded, the applicant has the burden of

proving that she suffers from mental or physical im-

pairments which make it impossible for her to perform

any of her “past relevant work.” 20 C.F_R. §§ 404.1520,

* The Social Security Administration regularly reviews the

cases of disability benefits recipients in order to determine whether

they are still disabled. If, during one of those reviews, the Social

Security Administration decides that a recipient is no longer dis

abled, the agency will send a written notice of termination of ben

efits to the recipient. The recipient has a right to challenge that

determination through the same administrative process deacribed

for applicants. This proceas begins at the reconsideration hearing

stage. 20 C.F.R. $§ 404.914, 416.1414.

’ “Past relevant work” is work that the applicant did during

the 15 years before the hearing date. The fact that one or more of

the applicant’s past jobs has become obsolete and may no longer

exist is legally irrelevant. Barnhart v. Thomas, 640 U.S. 20 (2003).

416.920. She may give sworn testimony, may be repre-

sented by counsel or a non-attorney representative

if she chooses, may bring witnesses to testify on her

behalf, and may cross-examine witnesses whom the

Social Security Administration has called to give evi-

dence. 20 C.F.R. §§ 404.950, 416.1450. As the Federal

Rules of Evidence do not apply in administrative hear-

ings, 42 U.S.C. § 405(b)(1), the applicant has the right

to submit written evidence without concern for the rule

against hearsay. Fed. R. Evid. 802. Therefore, moat, if

not all, of the medical evidence at the hearing — medi-

cal records, prescription records, laboratory test re-

sults, reports from physicians — is in written form.

If the applicant shows that she cannot perform

any of her past work, the burden shifts to the Social

Security Administration to show that other jobs exist

which she can perform. 20 C.F-R. $§ 404.1560(c), 416.960(c).

The Social Security Administration may be able to

satisfy that burden by relying on its own Medical-

Vocational Guidelines, 20 C.F.R. Part 404, Subpart P,

Appendix 2, known as the “Grids.” If the applicant's

individual characteristics do not match any of the

Grid categories, the Administrative Law Judge may

obtain the testimony of a vocational expert.’ 20 C.F_R.

$§ 404.1566(e), 416.966(e). The applicant has the op-

tion of cross-examining the vocational expert or provid-

ing testimony from her own expert.

* See Heckler v. Campbell, 461 U.S. 468 (1983).

* See also Biesteh v. Berryhill, No. 17-1184, which is eub

judice in this Court.

7

If the applicant testifies at the administrative

hearing, and most applicants do testify,’° the Adminis-

trative Law Judge has the option of questioning her,

and most Administrative Law Judges exercise that op-

tion. Since all Administrative Law Judges are lawyers,

5 C.F_R. § 930.204(b), and many have trial experience,

the questioning can get intense. Applicants sometimes

exit their hearings feeling that they have been the tar-

gets of an inquisition.

After the hearing, the Administrative Law Judge

issues a written decision, which the Social Security Ad-

ministration mails to the applicant. If the applicant

was represented at the hearing, the Social Security Ad-

ministration will mail a copy of the decision to the ap-

plicant’s attorney or other representative. 20 C.F.R.

§§ 404.953(a), 416.1453(a). The Social Security Admin-

istration does not send its decisions electronically.

The Administrative Law Judge must decide whether

the applicant was disabled at any time from the date

upon which she said that the disability began up to

and including the date of the administrative hearing.

42 U.S.C. § 423(b); Bastien v. Califano, 572 F.2d 908,

912 (2d Cir. 1978); 20 CFR. §§ 404.620(a); 416.330(a).

If the Administrative Law Judge’s decision is unfavor-

able to the applicant, she has a fourth, and final, step

in the administrative labyrinth — she can file a written

* She can waive her own testimony and rely on the testi-

mony of others. 20 C_F_R. $§ 404.950(a), 416.1450(a). She can even

waive the entire hearing and ask that the Administrative Law

Judge decide her case upon the written record alone. 20 C.F_R.

§$§ 404.950(b), 416.1450(b).

8

request for the Social Security Appeals Council to re-

view the Administrative Law Judge’s decision. The So-

cial Security Administration’s “preferred method” for

requesting Appeals Council review of an Administra-

tive Law Judge’s decision or dismissal is “via the inter-

net.”"' That method (which was not available in 2014,

when Ricky Smith’s case was pending) strongly re-

duces the possibility that the Appeals Council will lose

the paper Request for Review document or misfile it in

the wrong claimant’s folder, thereby reducing the like-

lihood that the Appeals Council will mistakenly dis-

miss timely-filed Requests for Review.'”

The Social Security Administration will assign

one or more Administrative Appeals Judges to review

the records in the applicant’s file, listen to the audi-

otape of the administrative hearing, and consider

whatever additional evidence the applicant has sub-

mitted and whatever legal arguments the applicant

or her lawyer have made in support of her case. Then

the Appeals Council will issue a disposition. The Ap-

peals Council issues four types of dispositions: deci-

sions (which can be fully favorable, partially favorable,

"™ Soc. Sec. Admin., Appointed Representative Guide to Re-

questing Appeals Council Review, https//www.ssa_gov/appeals/repe/

Appt_Rep_ Guide Req AC Review_Submit_Evidence.pdf

“ With any system that involves large amounts of paper, re-

quiring filing in the proper folder, human error is not uncommon.

For example, in Yenik v. Commissioner of Social Sec., 522 Fed.

Appx. 65, 65-66 (2d Cir. 2013), a Social Security case proceeded all

the way to the United States Court of Appeals before it was no-

longing to someone other than the claimant.

9

or unfavorable), remands to an Administrative Law

Judge, denials of requests for review, and dismissals of

requests for review. 20 C.F.R. §§ 404.967, 416.1467.

If the Appeals Council decision is not favorable to

the applicant, she can file a civil action in the United

States District Court, seeking judicial review of the de

cision. 42 U.S.C. §§ 405(g), 1383(c)X(3).

Needless to say, the lengthy and sometimes con-

fusing application process is a daunting task for appli-

cants, who all suffer from some kind of health issues,

and many of whom are poorly educated and impecuni-

ous. Therefore, at each stage of the administrative pro-

cess, many non-prevailing applicants simply drop their

claims, and do not move to the next step of the process.

For example, in Fiscal Year 2016, 2,582,092 individuals

applied for SSDIB or SSI benefits.” 852,090 (33%)

were awarded benefits while 1,730,002 (67%) were de-

nied. Id. Of those whose applications the Social Secu-

rity Administration denied, only 633,474 (37%) sought

reconsideration. Id.

At the reconsideration stage, the Social Security

Administration awarded benefits to 76,017 applicants

(12%), while denying benefits to 557,457 applicants

(88%). Id.

8 Soc. Sec. Admin., Fiscal Year 2018 Congressional Justifica-

tion, https//www.ssa_gov/budget/FY 18Files/2018JEAC. pdf Some

cociianns She consatanthy Se GU end SURED tomatinn Bndietd

uals whose claims are filed under both programs are counted as a

single claim.

10

At their administrative hearings, 219,022 (46%)

of the applicants were awarded benefits, while a total

of 261,874 were either denied or dismissed: 166,647

(35%) were denied, and another 95,227 (20%) were dis-

missed. Jd. Again, there was attrition: only 133,840 ap-

plicants appealed to the Appeals Council. Jd.

The Appeals Council ruled in favor of claimants or

remanded to an Administrative Law Judge for new

hearings in 17,399 (13%) of the cases. It dismissed

5,353 (4%) of the cases on procedural grounds, not the

merits. Id. In Fiscal Year 2017, the 57 Administrative

Appeals Judges, assisted by 46 Appeals Officers, and

several hundred support personnel,“ ruled on more

than 160,000 cases.”

At every stage of the administrative process, the

applicant (or recipient challenging the termination of

her benefits) must comply with short time deadlines

which are strictly enforced. She must submit the ap-

propriate request for review within 60 days of receiv-

ing the written decision that she is challenging."* The

™ Soc. Sec. Admin., Brief History and Current Information

About the Appeals Council, https//www_.sea_gov/appeals/about ac html

® Id.

* Thus, she must submit a written request for reconasidera-

has been denied. 20 C.F.R. §§ 404.909(aX 1), 416.1409(a). She must

file a request for an administrative hearing within 60 days of re-

denied. 20 C.F.R. §§ 404.933(b\( 1), 416.1433(b). She must file a re-

quest for Appeals Council review within 60 days of receiving the

Administrative Law Judge’s decision. 20 C.F_R. $§ 404.968(a\ 1),

416.1468(a).

11

Social Security Administration presumes that the

notice to the applicant has been mailed on the day

that it was signed, 20 C.F_R. § 422.210(c); POMS GN

03101.010(A)(1), and that the mail was delivered

within five days of mailing. 20 C.F.R. §§ 404.901,

416.1401. Thus, if the applicant does not file the appro-

priate request within 65 days of the date on the docu-

ment from which she seeks review, the Social Security

Administration will dismiss her case as untimely. The

dismissal of an applicant’s request for Appeals Council

review of an unfavorable Administrative Law Judge

decision is the subject of the instant case.

By contrast, the regulations impose no such time

limits on the Social Security Administration itself At

each of the four stages of the administrative process,

the agency may take as much time as it pleases to

make a determination or decision on the applicant’s

case. Enormous delays are common. It can take years

for an applicant to complete the process from the

date that she applies until the date that the Appeals

in Fiscal Year 2017 was 111 days for an initial deter-

mination, 101 additional days for a reconsideration de-

termination, and 605 additional days for a decision

from an Administrative Law Judge at the hearing

level.” There is a large variation in wait times at

the hearing level of the administrative process, de-

pending upon where the claimant lives — claimants in

'T Soc. Sec. Admin., Fiscal Year 2019 Congressional Justifica-

tion, p. 13 (This figure comes from adding processing times for

12

Providence, Rhode Island wait 265 days, on average, to

receive decisions on their cases, while claimants in San

Juan, Puerto Rico must wait an average of 867 days for

their decisions.’* The average processing time from the

filing of a request for review and the date of the Ap-

peals Council’s disposition in Fiscal Year 2016 was 364

days.” A typical Social Security claim thus takes over

three years from the date of filing to the date of a deci-

sion at the final stage of administrative review, while

an unlucky claimant in Puerto Rico must wait an av-

erage of nearly four years for a determination from the

Appeals Council. The applicant or recipient has no al-

ternative but to wait for the agency to act.

If the applicant waits more than 65 days to file a

civil action in the United States District Court after a

decision from the Appeals Council which has upheld

the denial of her application or which has denied re-

view and adopted the decision of the Administrative

Law Judge as the final decision of the Commissioner,

the law is clear that the applicant has, at most, missed

a statute of limitations, i.e., the applicant’s failure to

file timely has not deprived the court of jurisdiction.

City of New York, 476 U.S. at 478. And the defense of

statute of limitations can be waived, when appropriate,

by the Commissioner of Social Security or by the court.

* Soc. Sec. Admin., Hearing Office Average Processing Time

Soc. Sec. Admin., Annual Data for Average Processing Time

of Appeals Council Requests for Review, https://www.ssa.gov/open/

data/Appeals-Council-Avg-Proc-Time.html|

13

Federal courts, in considering such defenses, have

regularly found that the Commissioner was wrong,

and that applicants have in fact filed their cases within

the 60-day statute of limitations. In Matsibekker v.

Heckler, 738 F.2d 79 (2d Cir. 1984), the court ruled that

a claimant had timely filed his civil action where he

had filed within 60 days of actually receiving the Ap-

peals Council denial notice, even though his filing (due

to delay in the delivery of the mail) was more than 90

days after the date on the notice itself.

In Nguyen v. Colvin, No. 16-cv-1535-JAH-AGS,

2018 WL 1510460 at *3 (S.D. Cal., Mar. 27, 2018), the

Commissioner alleged that the claimant had filed late,

i.e., more than 65 days after the April 12, 2016, date on

the Appeals Council denial notice. However, because

the envelope containing the denial notice was post-

marked April 26, 2016, the Court concluded that the

filing on June 18, 2016 was timely. Id. In Ritchie v. Ap-

fel, No. 98-226-B, 1999 WL 1995198 at *2 (D. Me., Mar.

11, 1999), the Commissioner moved to dismiss an ac-

tion as untimely, despite unrebutted evidence that, al-

though the claimant had informed the Social Security

Administration of his change of address from New

Mexico to Maine, the Appeals Council nonetheless sent

the notice to the previous New Mexico address. The

court denied the motion to dismiss.

14

ll. Prior decisions of this court resolve the is-

sue of jurisdiction.

This Court has concluded that federal courts have

jurisdiction to hear a Social Security case, despite a

claimant’s failure to exhaust all administrative reme

dies, i.e., to obtain a final decision on the merits of her

claim from the Appeals Council.” Indeed, this Court

has done so repeatedly.

In Salfi, 422 U.S. 749, this Court first considered

the question of whether the federal courts have juris-

diction, under 42 U.S.C. § 405(g), to hear cases filed by

Social Security claimants whose applications for bene

fits have been rejected at both the initial and reconsid-

eration stages of the administrative process, but who

have not sought either administrative hearings or Ap

peals Council review of the decisions. Jd. at 753-54.

This Court ruled explicitly that the federal courts pos-

sess jurisdiction, under 42 U.S.C. § 405(g), to consider

the individuals’ claims that the Social Security Admin

istration (which was then a branch of the United

States Department of Health and Human Services)

had wrongfully deprived them of Social Security bene

fits by applying an unconstitutional statute, notwith-

standing the claimants’ failure to complete al! four

stages of the edministrative process.

This Court, examining its jurisdiction sua sponte,

rejected the contention that 42 U.S.C. § 405(g) requires

” A final decision on the merits includes a denial of the cdaim

ant’s request for review of a decision by an Administrative Law

Judge. See pp. 8-9, supra.

15

a final decision from the Appeals Council on the merits

of a claim as a prerequisite to a federal court’s exercise

of jurisdiction. This Court also rejected the contention

that the jurisdictional requirement of a “final decision

... made after a hearing,” 42 U.S.C. § 405(g), was lim-

ited to decisions of Administrative Law Judges, issued

after full, trial-type administrative hearings. Instead,

this Court concluded that, “for purposes of this litiga-

tion the reconsideration determination is ‘final.’” /d. at

767.

However, this Court found that the federal courts

lack jurisdiction over unnamed members of the pro-

posed plaintiff class because there was no allegation

that those class members had filed applications for

benefits and had been denied. /d. at 764. The require

ment of a decision by the agency on a claim for benefits

is “central to the requisite grant of subject-matter ju-

risdiction.” Id. at 764.

A year later, this Court again considered the ques-

tion of federal court jurisdiction over claims for Socia!

Security benefits where the claimants had not ex-

hausted all of their administrative remedies by com-

pleting the four-step review process. In Eldridge, 424

U.S. 319, this Court held that § 405(g)’s jurisdictional

requirement of a “final decision by the Secretary after

a hearing” had two elements, only one of which was

jurisdictional “in the sense that it cannot be ‘waived,’”

id. at 328, rejecting a challenge to jurisdiction by the

Secretary of Health and Human Services. That non-

waivable element is the requirement that a “claim for

benefits shall have been presented to the Secretary,”

id. at 328, which is “an essential and distinct precondi-

tion for § 405(g) jurisdiction.” Id. at 329. This Court

found that, by challenging in writing the Secretary's

decision to terminate his Social Security benefits,

“Eldridge has fulfilled this crucial prerequisite.” /d. at

329. This Court further ruled that the requirement

that a claimant complete the administrative process,

including review by the Appeals Council, is waivable,

and hence not jurisdictional, thereby allowing the fed-

eral courts to review Eldridge’s case. Id. at 330-31.

Finally, in City of New York, 476 U.S. 467, this

Court again rejected the Secretary's argument that the

federal courts lacked jurisdiction over Social Security

claimant class members who had raised their claims

for benefits but failed to exhaust administrative reme-

dies, including those whose time to request adminis-

trative or judicial review had lapsed. Id. at 478. This

Court concluded that that argument was “foreclosed”

by Eldridge and Salfi. Id. at 478.

With regard to individuals who had presented

their claims for benefits to the Social Security Admin-

istration but had not pursued those claims through al!

levels of administrative review, this Court upheld the

inclusion of those claimants in the plaintiff class. This

Court quoted Eldridge for the proposition that those

claimants, having satisfied the non-waivable, jurisdic

tional element of the exhaustion of remedies require-

ment, could seek and obtain waiver of the waivable

element of the exhaustion requirement. /d. at 483-84.

Those elements may implicate the statutes of limita

tions, but are not jurisdictional.

17

Using that analysis, Ricky Lee Smith satisfied the

non-waivable, jurisdictional component of the exhaus-

tion requirement when he applied for benefits in Au-

gust 2012, again when he sought reconsideration in

2012, and yet again when he participated in an admin-

istrative hearing, which resulted in a decision on the

merits by an Administrative Law Judge, in 2014.

The disruption of 9/11 in lower Manhattan was

insufficient to dissuade the Social Security Admin-

istration from finding untimely and dismissing the Re-

quest for Review by Jeanette Jones. Jones v. Astrue,

526 F_Supp.2d 455 (S.D.N.Y. 2007). In disputing the as-

sertion of untimeliness, Ms. Jones swore that she had

hand-delivered her timely Request for Review to the

agency's Office of Hearings and Appeals in Federal!

Plaza in Manhattan, a few days before that area was

devastated by the attack. Jd. at 460. The Request for

Review must have been lost or misplaced by the Social!

Security Administration during the ensuing chaos, and

never transmitted to the Appeals Council office for re-

view. Jones then retained counsel, who filed another

Request for Review after contacting the Appeals Coun-

cil office about the status of Jones’s pro se appeal and

learning that the Appeals Council had never received

the paperwork which Jones swore that she had filed in

Manhattan. The Appeals Council dismissed that re-

quest as untimely, leading Ms. Jones to file a manda-

mus action in court. In response to the Social Security

Administration's motion to dismiss for lack of jurisdic-

tion, the court concluded that it had mandamus juris-

diction, under 28 U.S.C. § 1361. In remanding the case

to the Appeals Council with the directive to make find-

ings of fact as to the truth of Jones's claim of timely

filing, the court noted that, in the aftermath of the at-

tack “it is not surprising that the Commissioner has no

record of receiving the request.” Jd. at 460.”

Claimants with equally compelling cases who re

side outside the Eleventh, Seventh, and Second Cir-

cuits have suffered seriously, and without recourse to

the courts. Betty Hart’s lawyer, for example, averred

that he had timely sought review of Ms. Hart's case in

the Appeals Council, taking special care to ensure that

his clients were looked after while he underwent seri-

ous surgery that would take him away from his prac-

tice for a period of time. Despite those efforts, and

despite “significant evidence that the Appeals Council

overlooked his final submission,” the District Court

dismissed Ms. Hart’s case, holding that it lacked “ju-

risdiction to grant Plaintiff a remedy.” Hart v. US.

Com’r Social Sec. Admin., Civ. No. 09-cv-1401, 2011 WL

1211548 *4 (W._D. La., Mar. 10, 2011).

Cases like Ms. Jones’s and Ms. Hart’s occur with

notable frequency: the Appeals Council dismisses re-

quests for review, hastily and incorrectly deciding that

"' The Appeals Council subsequently found that Jones had

good cause for late filing. Jones v. Astrue, No. 09 Civ. 5577 (DAB)

(FM), 2011 WL 3423771 *1 (S.D.N.Y., Jul. 15, 2011). And an

Administrative Law Judge eventually found Jones disabled, and

entitled to benefits.

the claimants filed the requests for review late and

that they lacked good cause for the late filing. While

there are a number of reasons why the Appeals Council

makes such errors, the reasons are irrelevant if no tri-

bunal can review the dismissals.

A. The stage at which a claim is dismissed

arbitrarily determines whether the claim-

ant may obtain review of the dismissal.

If an Administrative Law Judge dismisses a claim-

ant’s request for a hearing, the claimant has a remedy.

She can request that the Administrative Law Judge

vacate the dismissal order, or she can ask the Ap-

peals Council to vacate the dismissal. See 20 C.F_R.

$§ 404.960(a); 416.1460(a). However, Social Security

regulations provide no recourse whatsoever to a claim-

ant to challenge the Appeals Council’s dismissal of her

request for review. 20 C.F.R. §§ 404.972, 416.1472. The

Social Security Administration provides no justifica-

tion for its policy that a claimant is entitled to review

when her request for a hearing has been wrongfully

dismissed, but not when her request for Appeals Coun-

cil review has been wrongfully dismissed.

The annual number of Administrative Law Judge

dismissals which either the Administrative Law Judges

or the Appeals Council vacates is unknown; the Social

Security Administration does not publish those statis-

tics. However, the collective experience of amicus cu-

riae has been that such orders vacating dismissals

happen with some frequency. And published judicial

opinions in Social Security cases occasionally mention

20

that the Administrative Law Judge's dismissal of the

claimant’s request for a hearing had been vacated by

the Appeals Council. Barnes v. Astrue, No. 08-2294,

2010 WL 1416884 at *1 (C.D. IIL, Apr. 1, 2010) (men-

tioning the Appeals Council's finding of good cause for

late filing of a request for hearing after dismissal by an

Administrative Law Judge); Richards v. Apfel, No. C-

98-4132-CAL, 1999 WL 252477 at *3 (N.D. Cal., Apr.

14, 1999) (Appeals Council remanded for the Adminis-

trative Law Judge to reconsider whether the claimant

had good cause for late filing); Howard v. Apfel, 17

F.Supp.2d 955, 961 (W.D. Mo. 1998) (Appeals Council

remanded to Administrative Law Judge “for further

consideration of whether good cause exists for the

claimant’s untimely filing of the request for hearing.”)

Cases from Courts within the Eleventh Circuit show

that the Appeals Council makes similar errors, yet the

majority of claimants across the country have no op-

portunity for review of Appeals Council dismissals, ab-

sent a Constitutional claim.

B. Appeals Council dismissals entail less

rigorous review than other types of Ap-

peals Council dispositions.

The Appeals Council issues four types of disposi-

tions: decisions (which can be fully favorable, partially

favorable, or unfavorable), remands to an Administra-

tive Law Judge, denials of requests for review, and dis-

missals of requests for review. 20 C.F.R. §§ 404.967,

416.1467. If the Appeals Council issues a decision on a

case or remands the claim to an Administrative Law

21

Judge, the decision or remand requires the concur-

rence of two Administrative Appeal Judges.” 20 C.F_R.

§ 422.205(b). If the two assigned Administrative Ap-

peals Judges do not agree, a third is brought in to act

as tiebreaker. However, decisions to dismiss or deny re-

quests for review are made by only one Administrative

Appeals Judge. 20 C.F.R. § 422.205(c). The Appeals

Council requires that multiple Administrative Appeals

Judges review a case before issuing any order which

gives a claimant a favorable outcome, but most cases

which result in unfavorable outcomes require only a

single reviewer. In nearly all Appeals Council disposi-

tions other than dismissals, the claimant’s case is un-

der review on the merits for a fourth time. In the case

of dismissals for untimely filing, the only issues are

whether the filing was timely and, if not, whether the

claimant had good cause for late filing. The first and

only time that issue is decided, it is disposed of by a

single Administrative Appeals Judge, and, under cur-

rent regulations, that decision is binding and unre-

viewable.

C. The Appeals Council has an enormous

workload, resulting in hasty and errone-

ous decisions.

The Appeals Council’s workload is staggering. In

Fiscal Year 2017, the 57 Administrative Appeals

™ Office of the Inspector General, Request for Review Work-

loads at the Appeals Council, Report Number A-12-13-13039,

March 7, 2014, p. 14, https://oig.ssa.gov/sites/default/files/audit/

full/pdf/A-12-13-13039.pdf.

22

Judges ruled on more than 160,000 cases.” The judges

were assisted in their Herculean task by only 46 Ap-

peals Officers, and a few hundred support personnel.*

Individual Administrative Appeals Judges dispose of

high numbers of cases each year. The median number

of dispositions by an Administrative Appeals Judge

in Fiscal Year 2012 was 1,283.” The most productive

Administrative Appeals Judges issued over 3,000 dis-

positions. The Administrative Appeals Judges at the

median disposed of approximately five cases per day,

while the Administrative Appeals Judges at the high

end disposed of 12 cases per day.” With that heavy out-

put, Administrative Appeals Judges typically spend

only 10 to 15 minutes reviewing an average case.”’

With such a high caseload and such pressure to reduce

a colossal backlog, Administrative Appeals Judges are

guaranteed to make mistakes. When an Administra-

tive Appeals Judge errs on the merits of an individual’s

claim, the individual can seek judicial review of that

mistake in the United States District Court. Yet when

the Administrative Appeals Judge’s mistake concerns

™ Soc. Sec. Admin., Brief History and Current Information

About the Appeals Council, https-//www.ssa.gov/appeals/about _

ac. html (Last visited December 15, 2018).

™ Id.

* Office of the Inspector General, Request for Review Work-

loads at the Appeals Council, p. 10.

* Id.

*’ Petition for a Writ of Certiorari, p. 14; Charles H. Koch, Jr.

& David A. Koplow, The Fourth Bite at the Apple: A Study of the

Operation and Utility of the Social Security Administration’s Ap-

peals Council, 17 Fila. St. U. L. Rev. 199, 257 (1990).

23

the claimant’s compliance with filing deadlines, or hav-

ing good cause for late filing, the Social Security Ad-

ministration says that the claimant is out of luck — she

may not obtain review of the error.

In addition to the Administrative Appeals Judges,

the support staff also have enormous workloads. His-

torically, the Appeals Council has relied upon paper fil-

ing rather than electronic filing. When claimants

submit requests for review on paper, the papers some-

times are lost or misfiled at the Appeals Council. That

is precisely what Ricky Lee Smith says happened in

his case: his lawyer mailed a written request for re-

view, and the Appeals Council lost or misfiled the pa-

perwork containing that request.

The Appeals Council now permits electronic filing

of requests for review,” a development which will re-

duce the loss and misfiling of paper requests for review.

Electronic filing also enables the Appeals Council to

keep a record of every request for review that it re-

ceives, and the date upon which the request for review

was filed.

D. Appeals Council denials on the merits are

often erroneous, resulting in frequent

federal court reversals.

It is impossible to know how often the cases that

the Appeals Council has dismissed cases as untimely

* Soc. Sec. Admin., Appeals Council Request for Review,

https-//secure.ssa.gov/iAppINMD/oao.

24

would have been reversed by a federal court. However,

existing data on other types of Social Security cases —

those in which claimants seek review of denials on the

merits — show a high rate of error.

The Social Security Administration keeps data on

the number of cases denied, remanded, dismissed, and

allowed (i.e., awarded benefits) at both the Appeals

Council and in federal courts.” In Fiscal Year 2017, the

Appeals Council ruled in claimants’ favor in only 10%

of cases that it reviewed, remanding 9% of cases and

awarding benefits in 1% of the cases.” When disap-

pointed claimants appealed by filing civil actions in

federal court, the courts ruled in claimants’ favor in

50% of cases, remanding 48% and awarding benefits in

the other 2%. Id." Federal courts reversed or re-

manded a total of 9,245 cases,” demonstrating a large

number of erroneous decisions by Administrative Law

® Soc. Sec. Admin., Fiscal Year 2019 Congressional Justifica-

tion, p. 206, https//www.ssa.gov/budget/FY 19Files/2019CJ. pdf.

* Id.

" The numbers for prior years are similar. In Fiscal Year

2016, the Appeals Council remanded 13% of cases and allowed

1%, while the federal courts remanded 49% and allowed 2%. Soc.

Sec. Admin., Fiscal Year 2018 Congressional Justification, p. 183,

https//www.sea.gov/budget/FY 18Filea/2018JEAC.pdf In Fiscal

Year 2015, the Appeals Council remanded 13% of cases and al-

lowed 1%, while the federal courts remanded 45% and allowed 2%.

Soc. Sec. Admin., Fiscal Year 2017 Congressional Justification,

p. 169, https//www.ssa.gov/budget/FY 17Files/2017FCJ.pdf.

™ Soc. Sec. Admin., Court Remands as a Percentage of New

Court Cases Filed, https://www.sea.gov/appeals/DataSeta/AC05_

Court_Remands NCC_Filed.html.

25

Judges that the Appeals Council, by denying review,

had effectively affirmed.”

Thus, in fully half of the cases which claimants

filed, the federal judiciary concluded that the Social Se-

curity Administration had erred in denying benefits.

The extremely high rate of error cannot be explained

by difference in the standards of review. The Appeals

Council and the federal courts apply essentially the

same legal standards. The Appeals Council will review

a case if the Administrative Law Judge has made an

error of law or abused his or her discretion, if the Ad-

ministrative Law Judge’s findings or conclusions are

not supported by substantial evidence, if the case has

a broad policy or procedural issue that may affect the

general public interest; or if the Appeals Council re-

ceives new and material evidence relating to the period

at issue and there is a reasonable probability that the

new evidence would change the outcome of the deci-

sion. 20 C.F_R. §§ 404.970(a), 416.1470(a). Likewise,

the federal court will reverse an Administrative Law

Judge’s decision if it is not supported by substantial

evidence, 42 U.S.C. § 405(g), is based on legal error,

Hopgood ex rel. L.G. v. Astrue, 578 F.3d 696, 698 (7th

Cir. 2009), if the Administrative Law Judge abused his

* “The Appeals Council [ | struggles to fulfill its error-correc-

tion and quality-review roles. That these steps may have room for

improvement is evidenced by the 45% rate at which cases are re-

manded back to the agency from federal courts in recent years.”

Administrative Conference of the United States, Improving Con-

sistency in Social Security Disability Adjudications, p. 5, https-//

lisability-adjudications# ftnref18.

26

or her discretion, Barrett v. Berryhill, 906 F.3d 340, 345

(5th Cir. 2018), or if “there is new evidence which is

material and that there is good cause for the failure to

incorporate such evidence into the record in a prior

proceeding.” 42 U.S.C. § 405(g). Thus, in half of the

cases filed, the federal courts had to right the mistakes

that the Appeals Council had committed or upheld.

The high degree of errors on the merits suggests that

the Appeals Council also makes a large number of er-

rors in dismissing cases. Claimants must be able to

seek review in the federal courts in order to correct

those errors.

sals will cause only a slight increase in fed-

eral court filings.

Social Security Administration records show that

disappointed claimants filed civil actions in federal

court from only 14% of “appealable” Appeals Council

dispositions.“ In Fiscal Year 2017, claimants filed

19,020 cases in United States District Court.”

™ Appealable dispositions are denials of the request for review

and unfavorable or partially favorable Appeals Council decisions

on the merits. Soc. Sec. Admin., Appeals to Court as a Percentage

of Appealable AC Dispositions, https//www.ssa.gov/appeals/Data

Seta/AC04_NCC_Filed_Appealable html.

* United States Courts, Civil Cases Commenced, by Nature

of Suit and District, During the 12-Month Period Ending Septem-

ber 30, 2017, http//www.uscourts.gov/sites/default/filea/data_tables/

jb_c3_0930.2017.pdf.

27

In fiscal year 2017, the Appeals Council dismissed

approximately 4,000 cases, including approximately

2,500 on untimeliness grounds.” If claimants chal-

lenge Appeals Council dismissals with the same fre-

quency that they challenge Appeals Council denials,

there would be, at most, 560 new federal court filings

each year. That number represents a miniscule per-

centage of the 358,563 cases filed in District Court dur-

ing the 12-month period ending March 31, 2018.*" And,

as was stated above, the development of electronic fil-

ing of requests for Appeals Council review will reduce

the incidence of cases in which the claimant timely

files a written request for review but the Social Secu-

rity Administration loses or misfiles that request, as

happened in Jeanette Jones’s case.

Moreover, compared to civil actions challenging

the denial of Social Security benefits, civil actions chal-

lenging Appeals Council dismissals are simple cases.

They only require briefing on a single question: did the

Appeals Council err in dismissing the case? In order to

answer this question, the court does not need to review

the claimant’s entire administrative record, but only

the evidence related to timeliness.

Experience in the Eleventh Circuit has shown both

that Social Security claimants’ civil actions challeng-

ing Appeals Council dismissals have not overwhelmed

*” Brief for the Respondent, p. 29.

*’ United States Courts, Federal Judicial Caseload Statistics

2018, http//www.uscourts.gov/statistics-reporta/federal-judicial-case

load-statistics-2018.

28

the District Court docket, and that the Appeals Council

has erred in dismissing requests for review. See

Quarles v. Colvin, No. 15-00572-N, 2016 WL 4250399

(S.D. Ala., Aug. 10, 2016) (remanding where evidence

presented to the court demonstrated good cause for

late filing); Vargas v. Colvin, No. 14-20133-CR, 2014

WL 6384150 (S.D. Fla., Oct. 28, 2014), report and rec-

ommendation adopted, 2014 WL 6455366 (S.D. Fla.,

Nov. 13, 2014) (Appeals Council abused its discretion

in dismissing request for review); Walker v. Commis-

sioner of Social Sec., 2013 WL 3833199 No. 6:12-cv-

1025-Orl-DAB (M.D. Fla., Jul. 23, 2013) (remanding

where claimant submitted records of psychiatric treat-

ment to the court around the time the request for re-

view was due, which could reasonably demonstrate

good cause for late filing). Had these cases been in any

of the majority of Circuits, the claimants’ cases would

be dismissed for lack of jurisdiction, despite the erro-

neous Appeals Council dismissals.

This small increase in federal court cases would

prevent deserving claimants from losing years of past-

due benefits. The delays in Social Security claims are

long. The average processing time from the date of fil-

ing of an initial application until a claimant receives

a decision from an Administrative Law Judge is 817

days.” If the Appeals Council dismisses a claimant’s

request for review as untimely, and does not find good

cause for iate filing, the claimant loses all opportunity

* Soc. Sec. Admin., Fiscal Year 2019 Congressional Justifica-

tion, p. 13 (This figure comes from adding processing times for

initial, reconsideration, and hearing decisions).

to claim up to three years of past-due benefits, i.e., ben-

efits which accrue during the waiting period.”

In addition to losing months or years of past-due

benefits after a wrongful Appeals Council dismissal,

some claimants lose the opportunity to ever qualify

for future disability benefits. In all claims for Social

Security Disability Insurance Benefits, there is a date

on which the claimant’s insurance coverage lapses, a

“Date Last Insured,” which is the date by which the

claimant must establish disability in order to qualify

for benefits. If the claimant’s Date Last Insured ex-

pired before the Administrative Law Judge issued a

decision, any new claim filed would be barred by ad-

ministrative res judicata.“ An unreviewable dismissal

by the Appeals Council, no matter how wrong it is, will

foreclose such a claimant from ever obtaining Social

Security Disability Insurance Benefits.

»

* A claimant who applies for Social Security Disability In-

surance Benefits can receive past-due benefits for up to a year

prior to the date of filing. 20 C_F_R. § 404.621(a\1).

“ 20 CFR. § 404.957(cX1); HALLEX 1-2440(J); accord

Dugan v. Sullivan, 957 F.2d 1384 (7th Cir. 1992); Draper v. Sulli-

van, 899 F.2d 1127 (11th Cir. 1990); Lively v. Secretary of Health

and Human Services, 820 F.2d 1391 (4th Cir. 1987); Oberg vu.

Astrue, 472 Fed. Appx. 488, 489 (9th Cir. 2012); Aguiniga v. Colvin,

833 F.3d 896, 900 (8th Cir. 2016).

30

CONCLUSION

The Court should reverse the judgment of the

Sixth Circuit Court of Appeals and rule that the Dis-

trict Court has jurisdiction over Ricky Lee Smith’s civil

action.

Respectfully submitted,

CAROLYN A. KUBITSCHEK Copy T. MARVIN

Counsel of Record LAW OFFICES OF

LANSNER & KUBITSCHEK Barry A. Scuuurz, P.C

325 Broadway, Suite 203 1601 Sherman Ave.,

New York, NY 10007 Suite 500

(212) 349-0900 Evanston, IL 60201

ckubitschek@lansk ub.com (847) 316-1282

PAUL B. EAGLIN cody@barryschults.com

P. O. Box 6033

Syracuse, NY 13217

(877) 374-4744

peaglin@eaglinlaw.com