From the syllabus of Smith v. Berryhill, a unanimous Supreme Court decision issued this morning:
An Appeals Council dismissal on timeliness grounds after a claimant has had an ALJ hearing on the merits qualifies as a “final decision . . . made after a hearing” for purposes of allowing judicial review under §405(g).
8 comments:
I wished the Court had addressed the presumption of receipt upon 5 days of issuing the opinion. Of the untimely cases I've seen, generally it is due to failure to receive the decision, or reliance on the 60 days language as to actual receipt without realizing the presumption of receipt within 5 days. Rarely, it is as the circumstances in the present case, submission occurred but SSA didn't acknowledge receipt. Not casting aspersions on the AC. They seem overwhelmed, even more than OHO.
Still not sure why SSA doesn't just pay for some sort of tracking. It would solve a lot of these issues.
Anyways, happy to see that the Court didn't buy into the floodgates arguments. Not like there are a lot of these cases, and those that there are, there is no strategic purpose or advantage in delaying/missing an appeal.
I have handled Social Security Disability case for 40 years. My practice has always included appeals to the Appeals Council and the District Court. I have always taken the filing date of Requests for Review seriously. For many years, my office would send the Request for Review by Certified mail. We would even take the envelope to the Post Office and have it stamped with a receipt. Also, we understood that the mailing date was considered the filing date.
In more recent years, I have sent Requests for Review to the Appeals Council by FAX. My FAX machine prints out a polling page showing that the FAX was delivered to the Appeals Council. We always have kept a copy of the Post Office Green Receipt card or the FAX cover sheet/polling sheet in the file for evidence. Several times the Appeals Council questioned the filing date and we responded with the information.
In this case, it looks like it involved a "He said, they said" situation. The Court appears to have given that tie to the runner (baseball term) (the runner in this case is the claimant).
Another issue that did not come up here but comes up every day is the actual mailing dates of Social Security documents. The ALJ decisions and the Appeals Council notices and decision ARE NOT mailed on the dates in the notice. For instance, at this moment I have an Appeals Council Denial Notice on my desk. It is dated March 26, 2019. It was actually mailed on March 29, 2019. These dates can become critical in the event that the case goes to the next level, Appeals Council or District Court.
Every envelope my office receives from Social Security is held and stapled to the document associated with it. I recently needed this system in a Federal Court case. I had sent the case to the Court Clerk by e-mail through the District Court's system. For some reason, the Complaint was not delivered. I discovered that and also determined that due to the mailing date, receipt date etc I was still within time to file suit. The Regional Counsel filed a Motion to Dismiss. The Motion included an Affidavit from a case coordinator with the Appeals Council. The Affidavit stated that the Appeals Council mailed the Notice. I copied the envelope with the postage meter receipt and sent it to the Regional Counsel. I also requested that they contact the Case coordinator and request the mailing date. Two days later the Regional Counsel withdrew the Motion to Dismiss.
I do not want to argue those type of problems but the fact is these time sensitive documents are not mailed on the date listed in the documents.
Why not file the appeals online?
@2:15
We have not actually had that many appeals since electronic became an option, only 1-2. Award rate has ticked up slightly, but more significantly, there is a huge backlog of decisions to be written. Might just be our local OHO, but appears to be roughly 4 times the historic norm. Our AC cases are down to roughly 10% of the norm, whereas hearing level has exploded. Weirdly, it doesn't appear to just be cases getting old post-hearing, some decisions are written more quickly than in the past whereas others are taking a month or two longer than normal. As to why we haven't used the electronic submission system yet, last I checked they were requesting the submitter's SSN, not the claimant, which is confusing. Felt safer submitting via fax given I didn't want them thinking I was appealing a decision on my own number, which would be invalid.
Do not know exactly how in today's system notices are generated let alone placed in an envelope and mailed. But for decades, centralized notices were generated and we knew for a fact that there was a good 5 days between the date printed and date actually in the mail (and god knows, a few more days yet for delivery.) For the Agency in 2019 to pretend that the date of a notice is the date it is an envelope and in the mail system is stunningly disingenuous (I'm being polite.) I'd also point out for consideration that the USPS informed delivery service, which sends out an email with a picture of the mailed items coming to you may be handy (if a business gets them). Ahh, nope just residential but the USPS does digitally image the front of letter sized mail, which might be retrievable in a case like this. Perhaps there is a way to access these to get proof when folks forget the stapled envelope method. But for the Agency to pretend there isn't much more lag in their mail than they say officially is just sad.
@8:44
This is pretty anecdotal, but I assume the local hearing office generate the notices because only one of our three hearing offices consistently pre-date their decisions by a week or two. Always amusing to appeal a decision two or three days before it was "issued."
In any event, the argument is more disingenuous than that. They don't allege the notice was mailed on the date it was issued, they move to dismiss, saying the notice was presumptively received within 5 days of issuance and are silent on whether the notice was ever even mailed. That makes sense, since there apparently is no internal system tracking that sort of thing, but given the statute requires an appeal within 60 days of mailing, the current arrangement is facially insufficient. At least file an affidavit from Bob in the mailroom that the notice was sent out on ____.
OHO uses electronic filing. SSA should move to a system where they email the notices/decisions and accept RFH or AC Appeals electronically. It would save them money and eliminate a lot of these problems.
OHO mailing for (most) decisions is done from a centralized print location. Yes, we are aware that the date on the decision is not NECESSARILY the date it is mailed. All unfavorable central print decisions are dated 5 days AFTER the creation date, thereby giving the claimant an additional 5-day benefit in addition to the 60-day statutory window.
Yes, I am an OHO insider.
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