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Bowen v. Commissioner of Social Security

United States District Court, D. Vermont

November 16, 2015

ELIZABETH ANN BOWEN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

OPINION AND ORDER ON MOTION TO DISMISS (DOC. 6)

GEOFFREY W. CRAWFORD, JUDGE

Plaintiff Elizabeth Ann Bowen brings this action under 42 U.S.C. § 405(g), requesting review and remand of the decision of the Commissioner of Social Security denying her application for disability insurance benefits. (Doc. 4.) The Commissioner moves for dismissal under Fed.R.Civ.P. 12(b)(6) or alternatively for summary judgment under Fed.R.Civ.P. 56, arguing that Bowen failed to timely pursue her administrative remedies. (Doc. 6.) Bowen has filed a "Motion in Opposition, " arguing that she had "good cause" for her untimeliness, and that she should be excused on due process and equitable tolling grounds. (Doc. 10.) For the reasons stated below, the Commissioner's Motion to Dismiss (Doc. 6) is GRANTED.

Background

In an application filed on January 14, 2013 and effective November 6, 2012, Bowen applied for disability insurance benefits with an alleged onset date of July 21, 2009. (Doc. 4 at 2, ¶¶ 4-5; Doc. 7-1 at 1.) Bowen alleged that she was disabled due to:

depression, left-side weakness, anxiety disorder, hemiparesia of left side of body due to nerve damage, patent foramen ovale (heart condition), slight aphasia (speech impediment), impaired peripheral vision in left eye, reduced hearing in left ear, migraine headaches, brain damage greater than one third of right side, cognitive deficits with distractors.

(Doc. 7-1 at 11.) The Application Summary for the claim indicates that, as of November 1, 2012, Bowen lived "in a room in a business establishment such as a hotel or boarding house." (Doc. 7-1 at 2.) Bowen's address is listed in the Application Summary as: 687 Maple Street, Suite 243, White River Junction, Vermont 05001. (Id.) The Application Summary advised: "You must report to Social Security if. . . [y]ou move." (Id. at 5.)

The claim was denied initially on March 20, 2013 and upon reconsideration on May 16, 2013. (See Doc. 4 at 3, ¶ 6; see also Doc. 7-1 at 11 ("We have determined that your condition is not severe enough to keep you from working.").) The May 16 reconsideration determination advised that if Bowen disagreed with the decision, she could request a hearing before an administrative law judge (ALJ) "not later than 60 days" from the date she received the notice. (Doc. 7-1 at 12.) The May 16, 2013 decision was mailed to Bowen at the Maple Street address. (See Id. at 11.) A copy was also mailed addressed to Bowen's attorney, Siobhan M. McCloskey, but at the same Maple Street address in White River Junction. (See Id. at 10, 13-14.)

Through Attorney McCloskey, Bowen sought a hearing before an ALJ in a request dated April 3, 2014 (almost a year after the May 16, 2013 decision). (Doc. 4 at 3, If 7; Doc. 7-2.) That request listed Bowen's address as: "c/o WISE, 30 Banks Street, " Lebanon, New Hampshire. (Doc. 7-2.) The request listed Attorney McCloskey's address as: P.O. Box 1396, White River Junction, Vermont. (Id.) The request asserted:

Social Security did not have all of my medical and other relevant information. My mental and physical disabilities have also gotten worse since I first applied. I also have had problems making doctors' appointment, especially for mental health therapy. I would appreciate it if SSA could make some for me.

(Id.)

Along with the request for a hearing, Attorney McCloskey included a signed "good cause letter" stating as follows:

I was not able to submit the Request for an Administrative Law Hearing within the required sixty (60) days on behalf of my client, Elizabeth Ann Bowen, because she has been unable to participate in her appeal until now. Ms. Bowen suffers from the effects of multiple strokes, problems concentrating, depression, anxiety and problems being around people. Her mental problems caused her life to be very unstable. She was arrested in the summer of 2013 for domestic assault, which caused her to lose her housing. She had to move to Rhode Island to temporarily live with the father of her daughter because she was homeless. In addition, she was overwhelmed with having to deal with the VT Department of Children and Families which was investigating her for possibly being an unfit parent. They became concerned after one of Ms. Bowen's friends was convicted of sexually assaulting her daughter. They were also concerned that Ms. Bowen's disabilities made her unable to properly care for her child. Ms. Bowen's transient living situation left her unable to communicate either by phone or mail with her attorney. Ms. Bowen was finally able to obtain temporary housing (for as long as needed) at WISE, a domestic violence shelter, in Lebanon, NH. She has only now been able to communicate with her lawyer and participate meaningfully in her appeal for Social Security disability benefits. Please accept this good cause letter for Ms. Bowen's lateness in requesting a hearing.

(Doc. 10-2 at 2.)

In an Order dated July 25, 2014, ALJ James J. D'Alessandro dismissed Bowen's request for a hearing under 20 C.F.R. § 405.380(e). (Doc. 4 at 3, ¶ 8; Doc. 7-3.)[1] The ALJ reasoned that the statements in Attorney McCloskey's "good cause" letter were contradictory, and that "the ability to move to another state and being the subject of an investigation is not good cause for failing to file a request for a hearing." (Doc. 7-3 at 5.) The ALJ also stated that "[t]here ...


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