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Bolton v. Colvin

United States District Court, D. New Jersey, Camden Vicinage

November 20, 2017

Roy A. BOLTON, Plaintiff,
v.
Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant.

          OPINION

          ROBERT B. KUGLER, UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on appeal from a decision by the Acting Commissioner of Social Security. (Doc. No. 1.) This case concerns an alleged filing error made nearly a decade ago in a Child's Insurance Benefit application that prevented a claimant from receiving a protective filing date a year earlier than otherwise. Plaintiff claims the name of his minor child, J.B., was on a benefits application made in 2008 and the Social Security Administration failed to register her. SSA argues that J.B. was never on the application and that SSA did not know about the minor child until February 18, 2010, when an application for J.B. was filed. The evidence available suggests that Plaintiff did not express an intent to file on behalf of his minor child until the date in SSA records, and Plaintiff has not met its burden of showing otherwise. Furthermore, the “new and material” evidence that Plaintiff brings before the Court today is neither new nor material, and does not justify remand for further deliberation. As such, the decision of the Commissioner is AFFIRMED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         Under Section 202(d) and Section 216(e) of the Social Security Act, 42 U.S.C. §§ 402(d) and 416(e), and 20 C.F.R. § 404.350 of the Social Security Regulations, a child whose parent is on disability is entitled to Child's Insurance Benefits if (a) she is the wage earner's child; (b) she is dependent on the wage earner; (c) an application has been filed on her behalf; (d) she is unmarried; and (e) she is under age 18, subject to some qualifications not relevant here. It is the third requirement-whether an application was filed on behalf of Plaintiff's child, J.B., at a time earlier than February -which is at the heart of this dispute.

         Plaintiff contacted a Social Security Administration field office on April 28, 2008, alleging he was disabled by a disc in his neck and back. At that time, he had stated on a form “married no minor or DAC, ” indicating that he was married with no minor children. Because no appointment was available, a field office employee arranged for him to call back on May 2, 2008, to complete his application. Some time later, Plaintiff called the field office on August 8, 2008, stating he would apply online and would apply for disability insurance benefits under 42 U.S.C. §§ 401-403. Plaintiff states he told the office about J.B.'s application and submitted a form with her name on it. The Court lacks this form, however.

         On August 14, 2008, Plaintiff completed an application for disability insurance benefits, in which he had stated “I do not have any children under age 18.” A summary of this was sent to Plaintiff, instructing him to “[r]eview the summary to ensure that we recorded your statements correctly.” Plaintiff was also told that “[i]f you disagree with any of your statements, you should contact us within 10 days after the date of this notice to let us know.” A few months later, an ALJ issued a decision on the record on December 15, 2009 finding Plaintiff disabled. The documents submitted to SSA for this determination were destroyed pursuant to internal procedures.

         On March 9, 2010, Plaintiff filed an application on behalf of his minor daughter J.B. for Child's Insurance Benefits, with a protective filing date of February 18, 2010. Plaintiff was notified on March 14, 2010 that J.B. was entitled to benefits retroactively extending to February 2009. J.B. thus received 12 months of retroactive benefits from the date of her February 2010 application, pursuant to 42 U.S.C. § 402(j)(1). On May 21, 2010, Plaintiff's attorney faxed to SSA a letter dated May 21, 2010:

This letter is written to you in regard to [Plaintiff] Roy Bolton. Enclosed you will find the following documents which I wish to submit in support of my client's claim:
1. Appointment of Representative form; 2. Request for Reconsideration; and
3. 1695
We are requesting reconsideration regarding the auxiliary Notice of Award and the onset date utilized for payment of [J.B.]. . . if you have any questions regarding this matter, please feel free to contact us. . . .

         The named forms were attached, including a Form SSA-1695, “Identifying Information for Possible Direct Payment of Authorized Fees, ” which was undated. The Social Security Administration (“SSA”) will pay a fee directly to a claimant's representative only if the representative completes the direct payment form (and others) before SSA effectuates a favorable decision that results in past-due benefits. See Program Operations Manual System (“POMS”) GN 03910.040(F)(2). The direct payment form submitted by Plaintiff (and completed by counsel) stated, under “Information about Other Claimants You Are Representing in Connection with this Claim, ” J.B.'s name, social security number, and a date of birth clearly indicating her minority. These documents were added to SSA's database on June 15, 2010.

         Ultimately, Plaintiff appealed the March 14, 2010 decision on behalf of J.B., questioning the month of entitlement (i.e., February 2009) by filing a request for reconsideration. That request was denied on July 8, 2010, on the basis that Plaintiff did not protect the filing date of his child when he filed his own application for DIB on April 28, 2009. The reconsideration determination also found that Plaintiff had stated on his application that he did not have a child under age eighteen or who was disabled, and that the earliest expressed intent to file a claim for J.B. was February 18, 2010, the earliest date within Social Security Administration records documenting contact about her claim.

         Plaintiff appealed this as well, seeking a hearing request on July 30, 2010, stating that he disagreed with the reconsideration determination. This was denied on May 10, 2011. Plaintiff thereafter filed a request for review on June 14, 2011 with the Appeals Council, who remanded the application back to the ALJ on September 20, 2013. Remand was found appropriate for the sole reason that a recording of the hearing had been lost. The Appeals Council took no issue with the hearing decision based on the evidence that was available. After the remand hearing, the ALJ issued an April 7, 2014 decision upholding the prior determination. The ALJ noted that Plaintiff's attorney had requested a copy of Plaintiff's application for Disability ...


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