Peterson v. Commissioner of Social Security

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 DOMINIC P., 8 Plaintiff, Case No. C22-5723 JHC 9 v. ORDER AFFIRMING AND 10 DISMISSING THE CASE COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12

13 Plaintiff seeks review of the denial of child’s benefits prior to February 1, 2017. Plaintiff 14 contends the Administrative Law Judge (“ALJ”) erred by finding that his mother was not 15 misinformed by the agency. Dkt. # 15. As discussed below, the Court AFFIRMS the 16 Commissioner’s final decision and DISMISSES the case with prejudice. 17 I BACKGROUND 18 Plaintiff is the son of a disability insurance benefits (“DIB”) recipient. Admin. Record 19 (“AR”) 13, 33, 35, 37, 43–44, 79. Plaintiff’s mother first applied for DIB on February 19, 2010, 20 and was found disabled at the initial level on May 7, 2010. AR 13 (confirming finding), 31 21 (application). At the time of her application, she reported that she had a child under the age of 22 18. AR 32. On September 25, 2010, the agency wrote a letter to the mother, stating that before 23 1 the agency could decide on her request for child’s benefits, she needed to “file an application.” 2 AR 41. On March 27, 2018, the mother applied for child’s benefits. AR 35. On April 7, 2018, 3 the agency notified the mother that Plaintiff was entitled to monthly child’s benefits beginning 4 February 2017. AR 37–40. 5 On April 25, 2018, the mother wrote to the agency to appeal its decision, stating that 6 Plaintiff was entitled to benefits going back to 2009, 12 months before she first started receiving 7 DIB. AR 43–44. The agency responded on December 19, 2019, stating that under the 8 regulations, benefits can be paid no earlier than 12 months before the month in which an 9 application was filed. AR 45. The agency explained that since the mother filed the application 10 for child’s benefits on March 27, 2018, Plaintiff’s benefits could begin no earlier than February

11 2017. Id. Plaintiff requested a hearing before an ALJ in February 2019 about the agency’s 12 decision. AR 47–50. 13 In a pre-hearing brief, Plaintiff’s attorney alleged that the mother did not receive the 14 September 2010 notice from the agency and that this constituted “misinformation” on the 15 agency’s part. AR 81. Plaintiff’s counsel further argued that the agency’s “failure to follow up 16 with confirmation” of the mother’s receipt of the September 2010 notice, as well as postal 17 delivery problems, “directly resulted in her inability to file an application,” and that therefore 18 Plaintiff was entitled to a “deemed filing date.” AR 82. 19 The ALJ held a hearing in March 2020, in which the mother testified that she did not

20 receive the September 2010 notice, and that the area she lives in has “a lot of issues with [mail] 21 theft” and mail delivery. AR 26–27. After the hearing, the ALJ issued a decision, finding 22 Plaintiff unentitled to child benefits before February 1, 2017. AR 10–30. Plaintiff now seeks 23 review of the ALJ’s decision. 1 II THE ALJ’S DECISION 2 The ALJ determined that Plaintiff failed to show that the agency misinformed his mother 3 about the child’s benefits application process. AR 14–17. The ALJ explained that the agency 4 did not provide incorrect, misleading, or incomplete information to Plaintiff’s mother, and that 5 it is not considered misinformation when a claimant does not receive notice. AR 15–16. The 6 ALJ explained that even with the various letters from United States Postal Service (USPS) 7 workers and Plaintiff’s neighbors indicating mail theft and other delivery issues, which the 8 mother submitted, there is no evidence showing the September 2010 notice specifically was not 9 delivered to the mother. AR 16. Therefore, the ALJ concluded that the agency used the correct 10 filing date, and that Plaintiff could only receive benefits up to 12 months right before that filing 11 date. AR 17. Plaintiff requested review of the ALJ’s decision, but because the Appeals Council 12 denied the request, the ALJ’s decision is the Commissioner’s final decision. AR 1–4. 13 III 14 DISCUSSION

15 The Court may reverse an ALJ’s decision only if it is legally erroneous or unsupported by 16 substantial evidence of record. Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). The Court 17 must examine the record but cannot reweigh the evidence or substitute its judgment for the 18 ALJ’s. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When evidence is susceptible to 19 more than one interpretation, the Court must uphold the ALJ’s interpretation if rational. Ford, 20 950 F.3d at 1154. Also, the Court “may not reverse an ALJ’s decision on account of an error 21 that is harmless.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 22 A. Misinformation 23 Plaintiff contends the ALJ erred in finding that the agency did not misinform his mother 1 about the child’s benefits application process. Dkt. # 15 at 2–3. Plaintiff argues that because his 2 mother did not receive the September 2010 notice about when she could apply for child’s 3 benefits, he is entitled to an earlier filing date and benefits up to 12 months before she would 4 have applied, had it not been for the misinformation. See id. 5 A claimant must file an application to become entitled to benefits. 20 C.F.R. § 404.603. 6 A claimant is entitled to child’s benefits on the earnings record of an insured person who is 7 entitled to disability benefits if the claimant is the insured person’s child. 20 C.F.R. § 404.350. 8 If a claimant files an application after the first month the claimant could have been entitled to 9 benefits, the claimant may receive benefits for up to 12 months “immediately before the month” 10 the claimant applied. 20 C.F.R. § 404.621.

11 The agency “may establish an earlier filing date,” that is, a “deemed filing date,” if the 12 agency provided misinformation about the claimant’s eligibility, and that misinformation was the 13 reason the application was not filed. 20 C.F.R. § 404.633. If a claimant can show that they were 14 misinformed, the agency uses the date the agency provided the misinformation, or the date when 15 claimant met all the requirements for their benefits, or whichever date is later. Id. 16 To establish a deemed filing date based on misinformation, these requirements must be 17 satisfied: 18 (1) The misinformation must have been provided to [the claimant] by one of the [agency’s] employees while he or she was acting in his or her official capacity 19 as [the agency’s] employee . . . .

20 (2) Misinformation is information which [the agency] consider[s] to be incorrect, misleading, or incomplete in view of the facts which [the claimant] gave to the 21 employee, or of which the employee was aware or should have been aware, regarding [the claimant’s] particular circumstances . . . . In addition, for [the 22 agency] to find that the information [claimant] received was incomplete, the employee must have failed to provide [the claimant] with the appropriate, 23 additional information which he or she would be required to provide in carrying out his or her official duties. 1 (3) The misinformation may have been provided to [the claimant] orally or in 2 writing.

3 (4) The misinformation must have been provided to [the claimant] in response to a specific request by [the claimant] to [the agency] for information about [the 4 claimant’s] eligibility for benefits or the eligibility for benefits of the person referred to in paragraph (b)(2)(i) of this section for which [the claimant] w[as] 5 considering filing an application.

6 20 C.F.R. § 404.633(c).

7 The Program Operations Manual Systems (“POMS”)1, which Plaintiff argues applies 8 here and which the ALJ relied on in his decision, provides similar policies on what constitutes as 9 misinformation: it is information that is “not correct, complete, or accurate or was misleading,” 10 provided orally in writing by an agency employee which would deter a claimant from applying. 11 See POMS GN 00204.008. 12 Reviewing the entire record, the Court finds the ALJ reasonably found that the agency 13 did not misinform Plaintiff’s mother about the application process for child’s benefits and that 14 the agency used the correct filing date for Plaintiff’s benefits. The ALJ noted that the written 15 documentation provided by the agency throughout the process did not have incorrect, 16 misleading, or incomplete information. See AR 15. The ALJ’s finding is supported by 17 substantial evidence. The record shows Plaintiff’s mother was sent a letter in September 2010 18 stating that she must first apply for child’s benefits before the agency could decide about her 19 request for child’s benefits. See AR 41. The letter also stated that if she applied within six 20 months, the agency would use February 16, 2010, as the filing date as it was the “date of the 21 original request.” Id. The record also shows that the mother did not apply for child’s benefits 22

23 1 “The POMS does not have the force of law, but it is persuasive authority.” Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1005 (9th Cir. 2006). 1 until March 27, 2018, and as a result, the agency determined Plaintiff was entitled to monthly 2 child’s benefits beginning February 2017. AR 35, 37, 45. The contents of all the written 3 documentation the agency sent reflect the regulations and therefore contained no incorrect, 4 misleading, or incomplete information. See 20 C.F.R. §§ 404.603 (a claimant “must file an 5 application to become entitled to benefits”), 404.621 (if a claimant files an application after the 6 first month the claimant could have been entitled to benefits, the claimant may receive for up to 7 12 months “immediately before the month” the claimant filed an application). 8 The ALJ also correctly noted that Plaintiff’s allegation that his mother did not receive the 9 September 2010 notice and his mother’s misunderstanding about when she could have applied 10 for child’s benefits do not fall under the “misinformation” requirements of the regulations and

11 the POMS. See Wilson v. Comm’r, Soc. Sec. Admin., 141 F. App’x 584, 585 (9th Cir. 2005) 12 (“[Plaintiff’s] possible misunderstanding . . . is not necessarily the same as being provided with 13 misinformation and does not entitle her to an earlier deemed filing date.”). 14 Additionally, the ALJ could reasonably find the testimony provided by the mother, the 15 USPS workers, and Plaintiff’s neighbors about mail delivery issues in his neighborhood 16 unpersuasive. The ALJ is “free to disregard” statements about alleged misinformation because 17 they “lacked specificity on crucial details.” See id. at 585; cf. also 20 C.F.R. § 404.633(d)(2) 18 (“We will not find that we gave you misinformation, however, based solely on your 19 statements.”). Here, Plaintiff failed to provide evidence that delivery issues affected the

20 September 2010 notice and, as the ALJ noted, testimony about possible delivery issues does not 21 necessarily establish that the mother did not receive the September 2010 notice. AR 16. As also 22 noted by the ALJ, Plaintiff’s allegation of mail delivery problems is undermined by the fact that 23 the mother has had other documents mailed to her address, yet she could respond to them, 1 showing her receipt of those documents. See AR 17 (citing AR 45–46 (a letter from the agency 2 stating that if Plaintiff’s mother disagreed with the decision about her son’s benefits, she can 3 request a hearing before an ALJ), 47 (Plaintiff’s mother requesting a hearing before an ALJ)). 4 Accordingly, the Court finds the ALJ reasonably determined that Plaintiff’s mother was not 5 misinformed, that the agency used the correct filing date, and that Plaintiff was not entitled to 6 benefits before February 2017. 7 B. Due Process 8 Plaintiff also argues the ALJ erred in finding that the agency had no duty to confirm 9 receipt of the September 2010 notice and that the agency’s choice to “adopt a method of notice 10 that does not ensure notice nor even provide evidence that notice was actually sent” results in a

11 violation of his due process. Dkt. # 15 at 2–3. 12 But Plaintiff fails to point to any authority stating that the agency has a duty to confirm 13 that a claimant received notice about the applications they may have inquired about. See Ludwig 14 v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012) (citing Shinseki v. Sanders, 556 U.S. 396, 407–09 15 (2009)) (holding that the party challenging an administrative decision bears the burden of 16 proving harmful error). By contrast, there is a circumstance when the agency must confirm a 17 claimant’s receipt of a notice—after a claimant requests a hearing before an ALJ, the agency 18 sends a notice of hearing that includes a form the claimant must send back to confirm they 19 received the notice. See 20 C.F.R. § 404.938 (c). The regulations state that if a claimant or their

20 representative fails to send back the acknowledgment receipt, the agency will “attempt to 21 contact” the claimant for an explanation, and if the claimant informs the agency that they did not 22 receive the notice of hearing, the agency will send an amended notice by certified mail. See id. 23 But there are no regulations stating the agency must confirm a claimant’s receipt of the notice at 1 issue here. Accordingly, the Court rejects Plaintiff’s argument. 2 IV CONCLUSION 3 For the foregoing reasons, the Commissioner’s final decision is AFFIRMED and this 4 case is DISMISSED with prejudice. 5 DATED this 12th day of October, 2023. 6 7 A 8 John H. Chun 9 United States District Judge

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