Case Name in Social Security Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LIZA S.,1
Plaintiff,
v. 	2:24-cv-01265-JMR
FRANK BISIGNANO,2 Commissioner
of the Social Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on plaintiff Liza S.’s Opening Brief (Doc. 16),
filed on April 22, 2025. Doc. 16. Defendant filed a response. Doc. 22. Plaintiff did not file a
reply, and the time for doing so has now passed. See Doc. 7 (Plaintiff’s reply due fourteen days
after Commissioner’s response). The parties consented to my entering final judgment in this
case. Docs. 5, 9, 10. Having meticulously reviewed the entire record and being fully advised in
the premises, I find that Plaintiff’s motion is not well-taken, and it will be DENIED.
I. 	Standard of Review
The standard of review in a Social Security appeal is whether the Commissioner’s final
decision3 is supported by substantial evidence and whether the correct legal standards were
1 Due to sensitive personal and medical information contained in this opinion, the Court uses
only the plaintiff’s first name and last initial. In so doing, the Court balances the plaintiff’s
privacy interest in her personal medical information, United States v. Dillard, 795 F.3d 1191,
1205–06 (10th Cir. 2015), and the public’s interest in accessing the opinion, FED. R. C IV. P.
5.2(c)(2)(B).
2 Frank Bisignano became the Commissioner of the Social Security Administration on May 7,
2025, and is automatically substituted as the defendant in this action. FED. R. C IV. P. 25(d).
3 The Court’s review is limited to the Commissioner’s final decision, 42 U.S.C. § 405(g), which
generally is the ALJ’s decision, 20 C.F.R. § 416.1481, as it is in this case.
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applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th Cir. 2008). If substantial evidence supports
the Commissioner’s findings and the correct legal standards were applied, the Commissioner’s
decision stands, and the plaintiff is not entitled to relief. Langley v. Barnhart, 373 F.3d 1116,
1118 (10th Cir. 2004). “The failure to apply the correct legal standard or to provide this court
with a sufficient basis to determine that appropriate legal principles have been followed is
grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005) (internal
quotation marks and brackets omitted). The Court must meticulously review the entire record,
but it may neither reweigh the evidence nor substitute its judgment for that of the Commissioner.
Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2007).
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Langley, 373 F.3d at 1118. A decision “is not based on
substantial evidence if it is overwhelmed by other evidence in the record or if there is a mere
scintilla of evidence supporting it.” Id. While the Court may not reweigh the evidence or try the
issues de novo, its examination of the record as a whole must include “anything that may
undercut or detract from the ALJ’s findings in order to determine if the substantiality test has
been met.” Grogan v. Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005). “The possibility of
drawing two inconsistent conclusions from the evidence does not prevent [the] findings from
being supported by substantial evidence.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)
(quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200 (10th Cir. 2004)).
II. 	Applicable Law
The Commissioner’s regulations provide that a claimant must complete a four-step
administrative review process to obtain a judicially reviewable final decision. 20 C.F.R. §
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416.1400(a).4 This four-step process includes an initial determination (step one), a claimant’s
request for reconsideration of the initial determination (step two), a claimant’s request for a
hearing by an ALJ (step three), and a claimant’s request for review of the ALJ’s decision by the
Appeals Council (step four). 20 C.F.R. §§ 416.1400(a), 416.1402, 416.1404(b), 416.1407,
416.1429, 416.1430, 416.1467, 416.1481, 422.210; see also Smith v. Berryhill, 587 U.S. 471,
475–76 (2019).
At step three, if a claimant fails to timely request a hearing and the ALJ does not find
good cause for a claimant’s untimeliness, the ALJ may dismiss the request for a hearing. 20
C.F.R. § 416.1457(c)(3). In determining whether claimant has good cause for failing to timely
request a hearing, the ALJ will consider any physical, mental, educational, or linguistic
limitations that a claimant might have. 20 C.F.R. § 416.1411(a)(4). The claimant may ask the
ALJ or the Appeals Council to vacate the dismissal. 20 C.F.R. § 416.1460(a). The ALJ or
Appeals Council will vacate the dismissal only if the claimant shows the dismissal was
erroneous. Id.
III. 	Background and Procedural History
Plaintiff filed an application for Supplemental Security Income (“SSI”) on December 9,
4 This Court has jurisdiction to review “any final decision of the [agency] made after a hearing
to which [Plaintiff] was a party. . . .” 42 U.S.C. § 405(g). Courts are split on whether they have
jurisdiction to review a case where no ALJ hearing has been held. The Tenth Circuit has not
addressed the issue. The Court, however, is persuaded by those courts finding jurisdiction in
these circumstances. See Curlee v. Comm'r of Soc. Sec., No. 1:20-CV-00145-SAB, 2022 WL
993005, at *3 (E.D. Cal. Apr. 1, 2022), aff'd sub nom. Curlee v. O'Malley, No. 22-15655, 2024
WL 2103275 (9th Cir. May 10, 2024) (collecting cases and explaining why the reasoning in
Smith v. Berryhill, 587 U.S. 471 (2019), while not directly on point, warrants finding jurisdiction
when the ALJ has dismissed a request for a hearing). In addition, the Commissioner elected “not
to invoke § 405(g) as a potential bar to judicial review and accept[ed] the Court’s authority to
review the ALJ’s dismissal of Plaintiff’s hearing request. . . .” Doc. 22 at 2.
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2021.5 AR 30–35. The Social Security Administration (“SSA”) denied her claim initially on
July 5, 2022. AR 26–29. Plaintiff filed a request for reconsideration on July 13, 2022. AR 22–
24. The SSA denied her claim on reconsideration on August 10, 2023. AR 19–21. The SSA
notified Plaintiff that she had 60 days to ask for a hearing by an Administrative Law Judge
(“ALJ”). AR 19. The notice further advised Plaintiff that the 60 days began to run five days
after the date on the notice. Id. Thus, Plaintiff had until October 16, 2023 (the first weekday 65
days after the notice was mailed on August 10, 2023)6 to request an ALJ hearing. Plaintiff did
not request an ALJ hearing by the October 16, 2023 deadline. On October 27, 2023. Plaintiff
filed a Statement of Good Cause for Late Filing. AR 17. And, on November 3, 2023, Plaintiff
filed a request for an ALJ hearing.7 AR 16.
On February 9, 2024, ALJ Michelle Lindsay entered an Order of Dismissal. AR 13–14.
The ALJ found that Plaintiff had not shown good cause for missing the 65-day deadline to ask
for an ALJ hearing. AR 13. 	The ALJ noted that Plaintiff stated that she missed the deadline to
request a hearing “because she was waiting until she gathered more evidence.” Id. The ALJ
found that the desire to gather more evidence did not constitute “good cause for missing the
deadline” and dismissed Plaintiff’s claim because it was untimely. AR 13–14.
5 The record also contains Plaintiff’s application for Disability Insurance Benefits. AR 36–37.
All of the remaining documents in the record, however, only refer to Plaintiff’s application for
SSI.
6 The 65-day period ended on Saturday, October 14, 2023. Because this was a Saturday, the
deadline is extended until the next business day—here, Monday, October 16, 2023. See Program
Operations Manual Systems (“POMS”) GN 03101.010(A)(1).
7 The ALJ’s order states that Plaintiff’s request for a hearing was filed on November 8, 2023.
AR 13. However, Box 4 of the form appears to be dated November 3, 2023. AR 16. This date
discrepancy is not material to the Court’s analysis.
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On March 27, 2024,8 Plaintiff requested review of the ALJ’s unfavorable decision by the
Appeals Council. AR 7–9. Plaintiff submitted additional medical evidence dated between
November 28, 2023 and March 27, 2024. AR 4. On June 5, 2024, the Appeals Council denied
the request for review. AR 3–4. The Appeals Council found that Plaintiff’s additional medical
evidence did not relate to the relevant time period.9 AR 4. Because the Appeals Council denied
the request for review, the ALJ’s decision is the final decision in this case. 20 C.F.R. §
416.1481. The SSA granted Plaintiff additional time—through December 17, 2024—to file her
appeal to this Court.10 AR 1–2. Plaintiff’s appeal to this Court on December 17, 2024 was
therefore timely. Doc. 1.
IV. 	Analysis
Plaintiff fails to provide any legal basis for this Court to overturn the dismissal of her SSI
claim. See Doc. 16. The Court may only consider issues that Plaintiff has exhausted through the
administrative process. As the Commissioner points out, “[t]he very limited issue before this
Court on appeal is whether the ALJ erred by finding there was no good cause for the Plaintiff’s
failure to timely request an administrative hearing. That was the only issue for which Plaintiff
exhausted her administrative remedies and therefore the only issue on which she could seek
judicial review.” Doc. 22 at 6.11
8 Plaintiff’s Request for Review of Hearing Decision/Order is dated March 27, 2024. AR 7. Her
letter to the Appeals Council, however, is dated March 29, 2024. AR 8–9. This date discrepancy
is not material to the Court’s analysis.
9 The relevant time period ran through the date of the ALJ’s decision, August 10, 2023. AR 4.
10 A claimant has 60 days to file an appeal. 20 C.F.R. § 416.1481. A claimant may request an
extension of time to file an appeal. 20 C.F.R. § 416.1482.
11 The issue of whether Plaintiff is disabled is not before the Court. The ALJ never made a
substantive decision on Plaintiff’s disability. Therefore, the Court may not consider Plaintiff’s
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Plaintiff does not argue that the ALJ erred in finding there was no good cause for
Plaintiff’s failure to timely request an administrative hearing. Thus, Plaintiff offers no argument
on the only issue the Court may consider. The Court therefore finds no error and denies
Plaintiff’s motion.
V. 	Conclusion
IT IS THEREFORE ORDERED that the relief requested in Plaintiff’s Opening Brief
(Doc. 16) is DENIED.
IT IS FURTHER ORDERED that the Commissioner’s final decision is AFFIRMED and
this case is dismissed WITH PREJUDICE.
________________________________
JENNIFER M. ROZZONI
United States Magistrate Judge
Presiding by Consent
new providers, new diagnoses, and new treatment that she claims support her application for
disability. See Doc. 22.
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