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Weinshenker v. Berryhill

United States District Court, M.D. North Carolina

September 1, 2017

SETH WEINSHENKER for MELISSA WEINSHENKER Deceased Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          L. Patrick Auld United States Magistrate Judge

         Plaintiff, Seth Weinshenker, brought this action on behalf of his deceased spouse, Melissa Weinshenker (“Claimant”), pursuant to the Social Security Act (the “Act”) to obtain judicial review of a final decision of Defendant, the Acting Commissioner of Social Security, denying Claimant's application for Disability Insurance Benefits (“DIB”). (Docket Entry 1.) Defendant filed the certified administrative record (Docket Entry 6 (cited herein as “Tr. ”)), and Plaintiff moved for judgment (Docket Entry 8; see also Docket Entry 9 (Plaintiff's Memorandum)). In response, Defendant moved for dismissal of the Complaint on the grounds that Plaintiff failed to establish standing to pursue the instant action on behalf of Claimant. (Docket Entry 10; see also Docket Entry 11 (Defendant's Memorandum).) Plaintiff subsequently responded in opposition to that motion (Docket Entry 12), and Defendant replied (Docket Entry 13). For the reasons that follow, the Court should enter judgment for Defendant.

         I. PROCEDURAL HISTORY

         Claimant applied for DIB. (Tr. 299-307.) Upon denial of that application initially (Tr. 148-59, 201-05) and on reconsideration (Tr. 160-74, 207-10), Claimant requested a hearing de novo before an Administrative Law Judge (“ALJ”) (Tr. 211-12). Claimant and her attorney attended the hearing. (Tr. 71-98.) The ALJ subsequently ruled that Claimant did not qualify as disabled under the Act. (Tr. 175-86.) The Appeals Council thereafter granted Claimant's request for review, and remanded the matter to the ALJ for further administrative proceedings. (Tr. 192-96.) The ALJ convened a second hearing, which Claimant, her attorney, Plaintiff, and a vocational expert (“VE”) attended. (Tr. 100-47.) By decision dated June 24, 2015, the ALJ again ruled that Claimant did not rate as disabled under the Act. (Tr. 8-23.)

         In rendering that disability determination, the ALJ made the following findings later adopted by the Commissioner:

1. [Claimant] last met the insured status requirements of the [] Act on December 31, 2013.
2. [Claimant] did not engage in substantial gainful activity during the period from her alleged onset date of January 4, 2010, through her date last insured of December 31, 2013.
3. Through the date last insured, [Claimant] had the following severe impairments: fibromyalgia, depression, and anxiety.
. . .
4. Through the date last insured, [Claimant] did not have an impairment or combination of impairments that meets or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
. . .
5. . . . [T]hrough the date last insured, [Claimant] had the residual functional capacity to perform light work . . . . She was limited to simple, routine, repetitive, unskilled work tasks, with only occasional contact with supervisors, coworkers and the public.
. . .
6. Through the date last insured, [Claimant] was unable to perform any past relevant work.
. . .
10. Through the date last insured, [c]onsidering [Claimant's] age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that [she] could have performed.
. . .
11. [Claimant] was not under a disability, as defined in the [] Act, from January 4, 2010, the alleged onset date, through December 31, 2013, the date last insured.

(Tr. 13-23 (bold font and internal parenthetical citations omitted).)

         Claimant passed away on July 5, 2015. (See Tr. 34-62.) On August 12, 2015, Claimant's attorney faxed the Appeals Council (1) a cover letter enclosing a request for review “for the above referenced [C]laimant” (referencing “Mrs. Melissa Rogers Weinshenker”) (Tr. 32 (emphasis added)); (2) Social Security Administration Form HA-520-US (Request for Review of Hearing Decision/Order) on behalf of “Melissa Rogers Weinshenker” (Tr. 31 (emphasis added)); and (3) an Appointment of Representative from signed by “Melissa Rogers Weinshenker” on July 16, 2013 (Tr. 33 (emphasis added)). On October 8, 2015, Claimant's attorney sent the Appeals Council a letter (Tr. 400-05) containing argument “submitted in further support of the Request for Review previously filed herein on behalf of the [C]laimant, Melissa Rogers Weinshenker . . . .” (Tr. 400 (emphasis added)). In the five-page letter, Claimant's attorney did not mention that (1) Claimant had died; or (2) Plaintiff wished to be named a substitute party. (See Tr. 400-05.) Claimant's attorney enclosed “new and material and disability related evidence” (id.), which included medical records reflecting Claimant's death by suicide on July 5, 2015 (see Tr. 34-62).

         On November 4, 2016, the Appeals Council sent a notice of its denial of Claimant's request for review (Tr. 1-7) to “Ms. Melissa Rogers Weinshenker” (Tr. 1 (emphasis added)). In that notice, the Appeals Council provided the following description of the materials it considered:

In looking at your case, we considered the reasons you disagree with the decision in the material listed on the enclosed Order of Appeals Council [referencing Claimant's attorney's brief dated October 8, 2015 (Tr. 6, 400-05)]. We found that this information does not provide a basis for changing the [ALJ's] decision.
We also looked at treatment records from CHS Harrisburg, dated February 2, 2015 (2 pages) and CMC Northeast, dated July 5, 2015 (29 pages), and opinions from Sally Rogers, LCAS, dated December 9, 2014 (1 page) and Benjamin Kunsesh, M.D., dated December 11, 2014. The [ALJ] decided your case through December 31, 2013, the date you were last insured for disability benefits. This new information is about a later time. Therefore, it does not affect the decision about whether you were disabled at the time you were last insured for disability benefits.

(Tr. 2 (emphasis added).) The Appeals Council did not incorporate Claimant's new evidence into the record as an exhibit (see Tr. 5, 6, 34-70), and its denial of Claimant's request for review rendered the ALJ's ruling the Commissioner's final decision for purposes of judicial review.

         Claimant's attorney then instituted the instant action, listing as “Plaintiff” in the case caption “Seth Weinshenker [Claimant's spouse] for Melissa Weinshenker (Deceased)” (Docket Entry 1 at 1), and in the Complaint, Claimant's attorney referred to both Melissa Weinshenker and Seth Weinshenker as “Plaintiff” (see, e.g., id., ¶ 2). In the brief supporting Plaintiff's Motion for a Judgment Reversing or Modifying the Decision of the Commissioner of Social Security, or Remanding the Cause for a Rehearing, Claimant's attorney maintained that Claimant's “husband was substituted and again appealed to the [Appeals Council]” on August 12, 2105 (Docket Entry 9 at 3 (referencing Tr. 31) (emphasis added)); however, in the Complaint, Claimant's attorney indicated that, “on the 4th day of November, 2016[, ] a subsequent denial of [] Plaintiff's (decedent's) request for review was issued by the Appeals Council.” (Docket Entry 1, ¶ 2 (emphasis added).)

         II. DISCUSSION

         A. Standing

         Defendant moves for dismissal of the Complaint on the grounds that Plaintiff lacks Article III constitutional standing to pursue Claimant's application for DIB in this Court. (See Docket Entry 11 at 3-8; see also Docket Entry 13.) According to Defendant, the Act ‘provides a framework for the right to appeal ‘any final decision of the [Commissioner] made after a hearing to which he was a party' and ‘obtain a review of such decision' within the established time in [f]ederal court.” (Docket Entry 11 at 4 (emphasis by Defendant) (quoting 42 U.S.C. § 405(g)).) Defendant points out that “[t]he Act and corresponding regulations define a hierarchy of individuals who can collect underpaid DIB owed to a deceased claimant ‘who is determined by the Commissioner' [to be eligible].” (Id. (emphasis by Defendant) (quoting 42 U.S.C. § 404(d) and citing 20 C.F.R. § 404.503(b)).) In that regard, Defendant notes that, if the Appeals Council receives notice that a claimant has died during the pendency of his or her request for review, the regulations “‘require the [Appeals Council] to determine whether there are persons who could be [substitute] parties in [the] case.'” (Id. at 5 (emphasis by Defendant) (quoting Program Operations Manual System (POMS) DI 12045.050 and citing 20 C.F.R. § 404.971 (providing that “[t]he Appeals Council will dismiss [a claimant's] request for review if . . . [the claimant] or any other party to the proceedings dies and the record clearly shows that dismissal will not adversely affect any other person who wishes to continue the action”).) Defendant argues that “[n]either [Plaintiff] nor [Claimant's] attorney [] can just unilaterally declare that ‘[Claimant's] husband was substituted' (id. at 7 (quoting Docket Entry 9 at 3)) and that, “[c]ontrary to [Claimant's] attorney['s] assertion of substitution, there is no evidence in the transcript that any request was ever made of the [Social Security Administration], not by [Claimant's] attorney [], not by [Plaintiff], and not by any other person, to allow [Plaintiff] to be a substitute party” (Docket Entry 11 at 3-4 (citing Tr. 1-790)).[2]

         “The power of federal courts to entertain suits is circumscribed by Article III of the United States Constitution, which limits judicial authority to ‘Cases' and ‘Controversies.'” Bishop v. Bartlett, 575 F.3d 419, 423 (4th Cir. 2009) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60 (1992) and Warth v. Seldin, 422 U.S. 490, 498 (1975)). “The standing doctrine has both constitutional and prudential components.” Id. (citing Allen v. Wright, 468 U.S. 737, 751 (1984)). “[T]he party invoking federal jurisdiction bears the burden of establishing its existence, ” id. at 104, and “[s]tanding cannot . . . be inferred from averments in the pleadings, but rather must affirmatively appear in the record; and naked assertions devoid of further factual enhancement will not suffice, ” Blanton ex rel Blanton v. Astrue, No. 1:10-cv-2463, 2011 WL 2637224, at *2-3 (N.D. Ohio June 20, 2011) (unpublished), recommendation adopted, 2011 WL 2637248 (N.D. Ohio July 6, 2011) (unpublished).

         1. Article III Constitutional Standing

         “Article III [constitutional] standing is an issue of subject matter jurisdiction, which relates to the power of this Court to hear a case.” Keith Bunch Assocs., LLC v. La-Z-Boy Inc., No. 1:14-cv-850, 2015 WL 4158760, at *4 (M.D. N.C. July 9, 2015) (unpublished) (Biggs, J.) (citing Beyond Systems, Inc. V. Kraft Foods, Inc., 777 F.3d 712, 715-16 (4th Cir. 2015)). “The requirement that jurisdiction be established as a threshold matter ‘spring[s] from the nature and limits of the judicial power of the United States' and is ‘inflexible and without exception.'” Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998) (quoting Mansfield, C. & L.M. Ry. Co. v. Swan, 111 U.S. 379, 382 (1884)). To have constitutional standing, a plaintiff must have suffered a “concrete and actual or imminent” harm, “a fairly traceable connection” must exist “between the plaintiff's injury and the complained-of conduct of the defendant[, ]” and the plaintiff must show the requested relief would likely redress the harm. Id. at 103 (internal quotation marks and citations omitted). “The question of [constitutional] standing is not subject to waiver, . . . [as] [t]he federal courts are under an independent obligation to examine their own jurisdiction.” United States v. Hays, 515 U.S. 737, 742 (1995).

         Section 405(g) empowers an individual to seek judicial review in federal district court of a “final decision of the Commissioner . . . made after a hearing to which he [or she] was a party.” 42 U.S.C. § 405(g) (emphasis added). As discussed above, Defendant maintains that, pursuant to Section 405(g), Plaintiff's failure to substitute himself as a party while Claimant's case remained pending before the Appeals Council renders him without Article III constitutional standing to pursue Claimant's application for DIB in this Court. For the following reasons, Defendant's argument unreasonably construes Section 405(g), and the Court should find that Plaintiff possesses Article III standing.

         Defendant correctly asserts that the record neither reflects that Plaintiff or Claimant's attorney submitted a request to the Appeals Council to designate Plaintiff as a substitute party to pursue Claimant's application for DIB, nor that the Appeals Council allowed Plaintiff to proceed as a substitute party. (See Docket Entry 11 at 3-4 (citing Tr. 1-790).) However, the language of Section 405(g) does not mandate a particular substitution procedure when a claimant's death occurs after the ALJ's hearing (and unfavorable decision) but before issuance of the Appeals Council's order on the request for review. See 42 U.S.C. 405(g). Because Claimant died after the ALJ's hearing, even had Plaintiff (or anyone else) requested (and obtained) substitution as a party, under Defendant's reading of Section 405(g), that post-hearing substitution still would result in the denial of standing. See Id. (enabling judicial review of a “final decision of the Commissioner . . . made after a hearing to which he was a party” (emphasis added).[3]

         Defendant's citation of multiple cases where substitution occurred while the deceased claimant's application for benefits remained pending before the Appeals Council (and therefore the individual did not qualify as a party at the time of the ALJ's hearing), but neither the Commissioner nor the courts involved took the position that the substituted party lacked standing under Section 405(g) (see Docket Entry 11 at 6-7 & n.5 (citing cases)), underscores that, for purposes of Section 405(g), Article III standing may exist for individuals who did not literally participate as parties at the time of the hearing referenced in Section ...


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