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Berry v. Commissioner of Social Security Administration

United States District Court, D. Hawaii

February 22, 2016

DEBORAH A. BERRY, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

ORDER DISMISSING PLAINTIFF’S AMENDED COMPLAINT (ECF NO. 28), IN PART, WITH PREJUDICE, AND AFFIRMING THE FINAL DECISION OF THE COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION

HELEN GILLMOR UNITED STATES DISTRICT JUDGE

This case involves the appeal of the Social Security Commissioner’s final decision awarding Supplemental Security Income benefits to Plaintiff Deborah A. Berry.

On October 18, 2010, Plaintiff filed an application for Supplemental Security Income that was denied by the Social Security Administration on December 8, 2010. Plaintiff never sought administrative review of the Social Security Administration’s denial of her October 18, 2010 application.

More than sixteen months later, on April 27, 2012, Plaintiff filed a new application for Supplemental Security Income. The Social Security Administration denied Plaintiff’s application upon initial review and upon reconsideration. After the Social Security Administration denied reconsideration, Plaintiff hired Attorney Richard Tolin to represent her to seek further administrative review of her April 27, 2012 application. Plaintiff signed a fee agreement with Attorney Tolin.

Plaintiff, with the assistance of counsel, requested an administrative hearing as to her April 27, 2012 application before an Administrative Law Judge (“ALJ”). Attorney Tolin represented Plaintiff at the administrative hearing and Plaintiff testified in support of her April 27, 2012 application. At the hearing, Attorney Tolin, with Plaintiff present, amended Plaintiff’s onset date of disability to April 27, 2012, as it was the earliest date upon which Plaintiff could be deemed disabled based on the evidence in the record. Plaintiff did not object to amending the onset date of disability at the hearing.

The ALJ found there was no good cause to reopen Plaintiff’s October 18, 2010 application for benefits. The ALJ reviewed Plaintiff’s April 27, 2012 application and determined that Plaintiff was entitled to benefits and was disabled as of the filing date of her April 27, 2012 application. The ALJ also issued an order approving the fee agreement between Plaintiff and Attorney Tolin.

Plaintiff, proceeding pro se, sought review of the ALJ’s decision finding that she was entitled to benefits as of April 27, 2012. Plaintiff argued that she had been disabled since 2008, and was therefore entitled to benefits from 2008 forward.

The Appeals Council denied Plaintiff's request for review of the ALJ’s decision. Plaintiff appealed to this Court.

Plaintiff seeks review of the ALJ’s finding as to the onset date of her disability. In addition, Plaintiff seeks review of the October 18, 2010 unexhausted application for benefits she filed with the Social Security Administration. Plaintiff also challenges payments made by the Social Security Administration to reimburse the State of Hawaii and to compensate her former attorney.

Plaintiff’s Amended Complaint (ECF No. 28) is DISMISSED, IN PART, WITH PREJUDICE for lack of subject matter jurisdiction. The Court AFFIRMS the final decision of the Commissioner of Social Security.

PROCEDURAL HISTORY

On October 18, 2010, Plaintiff Deborah A. Berry filed an application for Supplemental Security Income with the Social Security Administration. (See Notice of Disapproved Claim from Social Security Administration dated December 8, 2010, re: Plaintiff’s October 18, 2010 Application for Supplemental Security Income, attached as Ex. 12 to Pla.’s Opening Brief, ECF No. 33-13).

On December 8, 2010, the Social Security Administration denied Plaintiff’s October 18, 2010 application for Supplemental Security Income. (Id.)

On April 27, 2012, Plaintiff Deborah A. Berry filed a new application for Supplemental Security Income with the Social Security Administration. (Administrative Record (“AR”) at 63, 119-27, 134, ECF No. 14).

On September 17, 2012, the Social Security Administration denied Plaintiff’s April 27, 2012 application. (AR at pp. 55-62, 70, 75-78).

On December 7, 2012, Plaintiff moved for Reconsideration of the denial of her April 27, 2012 Supplemental Security Income Application. (AR at p. 79).

On June 13, 2013, Reconsideration of her April 27, 2012 application was denied. (AR at pp. 63-74, 82-84).

On August 9, 2013, Plaintiff retained Attorney Richard Tolin and requested a hearing as to her April 27, 2012 application before an Administrative Law Judge (“ALJ”). (AR at p. 86-88).

On August 12, 2013, Plaintiff signed a fee agreement with Attorney Tolin. (AR at p. 116).

On November 26, 2013, an ALJ conducted a hearing on Plaintiff’s April 27, 2012 application and Plaintiff was represented at the hearing by Attorney Tolin. (AR at pp. 39-54).

On January 8, 2014, the ALJ issued a decision granting Plaintiff’s request for Supplemental Security Income, finding Plaintiff was disabled since the April 27, 2012 filing date of her application. (AR at pp. 33-38).

On the same date, the ALJ issued an order approving of the fee agreement entered into between Plaintiff and Attorney Tolin. (AR at p. 32).

On March 10, 2014, Plaintiff, proceeding pro se, filed a request for review of the ALJ’s decision before the Appeals Council for the Social Security Administration. (AR at p. 22). Plaintiff also sent a request by fax for an extension of time to submit additional evidence and legal argument. (AR at p. 20).

On April 19, 2014, the Appeals Council granted Plaintiff’s request for an extension of time to submit additional evidence and briefing for twenty-five additional days. (AR at p. 13).

On May 14, 2014, Plaintiff sent a second fax to the Appeals Council and made a second request for an extension of time. (AR at pp. 11-12).

On June 12, 2014, Plaintiff sent a third fax to the Appeals Council to provide a change of address. (AR at p. 10).

On July 3, 2014, Plaintiff sent a fourth fax to the Appeals Council stating that she had not been represented by Attorney Tolin since November 26, 2013. (AR at p. 9).

On July 9, 2014, the Appeals Council for the Social Security Administration denied further review of Plaintiff’s application. (AR at pp. 3-7). The Appeals Council considered Plaintiff’s March 10, 2014 letter in rendering its decision. (AR at p. 7). The Appeals Council affirmed the ALJ’s January 8, 2014 decision as the final administrative decision by the Commissioner of Social Security. (AR at pp. 3-5).

On September 12, 2014, Plaintiff, proceeding pro se, sought judicial review in this Court, pursuant to 42 U.S.C. § 405(g), of the Commissioner of Social Security’s final decision to grant Plaintiff’s application for Supplemental Security Income as of the filing of her application on April 27, 2012. (Complaint, ECF No. 1).

On February 12, 2015, the Magistrate Judge issued a briefing schedule. (ECF No. 15).

On April 15, 2015, Plaintiff filed a MOTION FOR LEAVE TO FILE MOTION FOR EXTENSION OF BRIEFING SCHEDULE with the Magistrate Judge. (ECF No. 16).

On April 17, 2015, Plaintiff filed a MOTION FOR LEAVE TO FILE MOTION FOR EXTENSION OF BRIEFING SCHEDULE; MOTION FOR LEAVE TO FILE MOTION FOR AMENDED COMPLAINT with the Magistrate Judge. (ECF No. 18).

On April 20, 2015, the Magistrate Judge issued an Order Granting Plaintiff’s Motion for Leave to File Motion for Extension of Briefing Schedule and Motion to File Amended Complaint. (ECF No. 22).

On April 27, 2015, the Magistrate Judge issued an Order Granting Plaintiff’s Motion for Leave for 30-Day Extension of Briefing Schedule. (ECF No. 23).

On June 23, 2015, Plaintiff filed a MOTION FOR LEAVE FOR 30-DAY EXTENSION TO FILE AMENDED COMPLAINT; MOTION FOR LEAVE FOR EXTENSION OF BRIEFING SCHEDULE with the Magistrate Judge. (ECF No. 24).

On June 24, 2015, the Magistrate Judge issued a Minute Order Granting Plaintiff’s Motion for Leave for Extension to File Amended Complaint. (ECF No. 27).

On July 23, 2015, Plaintiff filed an AMENDED COMPLAINT. (ECF No. 28).

On July 29, 2015, Plaintiff filed Exhibits in support of her Amended Complaint. (ECF No. 31).

On August 17, 2015, Plaintiff filed PLAINTIFF’S OPENING BRIEF. (ECF No. 33).

On October 8, 2015, Defendant filed DEFENDANT’S MOTION FOR FIRST EXTENSION OF 35 DAYS TO FILE THE ANSWERING BRIEF with the Magistrate Judge. (ECF No. 35).

On the same date, the Magistrate Judge issued a Minute Order Granting the Defendant’s Motion for First Extension of 35 Days to File the Answering Brief. (ECF No. 36).

On November 20, 2015, Defendant filed DEFENDANT’S ANSWERING BRIEF. (ECF No. 37).

On December 4, 2015, Plaintiff filed MOTION FOR LEAVE FOR 30-DAY EXTENSION TO FILE PLAINTIFF’S REPLY BRIEF; MOTION FOR LEAVE FOR EXTENSION OF BRIEFING SCHEDULE with the Magistrate Judge. (ECF No. 38).

On December 15, 2015, the Magistrate Judge issued a Minute Order Granting Plaintiff’s Motion for Leave for 30-Day Extension to file Plaintiff’s Reply Brief. (ECF No. 42). The Magistrate Judge extended the deadline for Plaintiff’s Optional Reply Brief to January 4, 2016.

Plaintiff did not file a Reply Brief.

On February 16, 2016, the Court held a hearing on Plaintiff’s Appeal from the decision of the ...


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