United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED
STATES MAGISTRATE JUDGE
Patrick Auld United States Magistrate Judge
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
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.)
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
. . .
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
. . .
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
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).
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
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
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
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)).
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).
Article III Constitutional Standing
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).
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.
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”
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