Amanda Craven v. Kilolo Kijakazi ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted December 15, 2021 *
Decided December 15, 2021
Before
DAVID F. HAMILTON, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 19-1802
AMANDA CRAVEN, Appeal from the United States District Court
Plaintiff-Appellant, for the Western District of Wisconsin.
v. No. 16-cv-53-wmc
KILOLO KIJAKAZI, Acting William M. Conley,
Commissioner of Social Security, Judge.
Defendant-Appellee.
ORDER
Amanda Craven applied for supplemental security income in 2010, but her claim
was denied after she failed to respond to mailings sent to the address that she provided
the agency. Long after the deadline to seek reconsideration had passed, Craven sought
*
We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 19-1802 Page 2
reconsideration anyway, asserting that she never received the agency’s mailings and
was misled to believe that her claim was still pending. An administrative law judge
found her assertions not credible and denied her request as untimely. Craven appeals
the district court’s ruling upholding that decision and seeks review of her application
on the merits. Because substantial evidence supports the agency’s decision, we affirm.
Craven applied to the Social Security Administration in 2010 for benefits based
on a claim of mental illness. She first called in August, and the agency mailed
confirmation of that conversation to her social worker in Pennsylvania. She applied
electronically in September and gave a Florida address as her home for mailings from
the agency. On the application, Craven declared, “I do not expect these arrangements to
change.” The agency mailed a request for more information to the Florida address in
October, but Craven did not respond. In November, the agency mailed another notice
to the same address, this time denying her application for benefits. That mailing
advised Craven she had 60 days to appeal or seek reconsideration; she did not do so.
Neither mailing was returned as undeliverable.
Nearly three years passed. In June 2013, Craven called the agency to discuss her
claim. Learning that it was long denied, she requested reconsideration the next month.
From this point on, she used her appointed guardian’s Wisconsin address. (The record
is silent on the history and scope of Craven’s guardianship, but she does not argue that
it explains her lateness.) Craven argued that the agency should excuse her nearly three-
year delay. She insisted that she never received the notices mailed to Florida in 2010,
and an agency representative had misled her to believe that the agency would contact
her by phone and that the claim-review process would take years. When the agency
denied her request, she sought review by an ALJ. See 20 C.F.R. § 416.1433(c).
The ALJ considered her assertion that she never received the notices mailed to
her home in Florida. Craven admitted that she lived with her sister between August
2010 and 2013 at the Florida address that she gave the agency. Her guardian said that he
had “pushed” Craven to follow up on her claim in 2010. Craven was unable to name the
agency representative she said misled her; in any case, she asserted only that the
representative had stated “that we could keep in contact by phone.”
The ALJ issued an adverse decision. He discredited Craven’s assertions that she
did not receive the notices at the address she had provided the agency and the agency
had misled her. Furthermore, because Craven did not respond within 60 days of the
agency’s denial of her claim in November 2010, her request for reconsideration was
No. 19-1802 Page 3
untimely. See 20 C.F.R. § 1409(a). He also determined that Craven lacked good cause
under 20 C.F.R. § 416.1411(a) to excuse the untimeliness of her request. Specifically, she
admitted that the home address that she provided to the agency had not changed
between 2010 and 2013, she could and did call the agency at times, but she did not do so
in late 2010. Although she described herself as “frazzled” at that time, she did not assert
that this impaired her from calling or understanding the need to respond to mail. Based
on this evidence, the ALJ denied Craven’s request for reconsideration.
Craven contested this decision. First she appealed within the agency to the
Appeals Council. As additional evidence of good cause, she submitted evidence of her
mental health history. The Appeals Council did not hold a hearing, but it reviewed the
ALJ’s decision and Craven’s new evidence. It ruled that the evidence did not address
her failure to follow up on her application for nearly three years and thus did not
“provide a reason to alter” the ALJ’s finding. The Appeals Council modified the
disposition of the hearing from a denial of Craven’s request for reconsideration to a
dismissal to comport with 20 C.F.R. § 416.1457(c)(3). See HALLEX 1 I-3-4-20 (Appeals
Council may dismiss for any reason the ALJ could have dismissed). Craven then sought
judicial review, and the district court upheld the agency’s decision.
This appeal followed. (It was stayed for two years pending resolution of
Craven’s motion for relief from the judgment, which is not before us.) Craven argues
that the record shows good cause to excuse her belated request for reconsideration and
adds that the agency had an independent duty to call her when she did not respond to
her mail. We consider only the record that was before the agency, asking whether the
ALJ’s decision, as modified by the Appeals Council, was based on substantial evidence,
or “evidence a reasonable mind might accept to support a conclusion.” Biestek v.
Berryhill, 139 S. Ct. 1148, 1154 (2019) (applying 42 U.S.C. 405(g)).
As a preliminary matter, we address a jurisdictional argument. Both before the
district court and on appeal, Craven argues the Appeals Council’s modification of the
ALJ’s decision without a second hearing prevented the Appeals Council’s decision from
becoming final. It is correct that before a federal court can review the agency’s decision,
42 U.S.C. § 405(g) requires a “final decision … made after a hearing.” But the Supreme
Court has held that § 405(g) “naturally suggests” a hearing before an ALJ, not before the
Appeals Council. Smith v. Berryhill, 139 S. Ct. 1765, 1774, 1774 n.1 (2019). Craven
1
The SSA’s Hearings, Appeals, and Litigation Law Manual, available at
http://www.ssa.gov/OP_Home/hallex/hallex.html (last visited Nov. 17, 2021).
No. 19-1802 Page 4
received “the relevant ‘hearing’,” id., through the good-cause hearing before the ALJ.
Although the Appeals Council was willing to accept Craven’s new evidence, it was not
required to hold a second hearing for its decision to be final.
Turning to the merits, we address whether substantial evidence in the record, as
supplemented by Craven’s new evidence, supports the finding that Craven did not
meet her burden under 20 C.F.R. § 416.1411(a) to excuse her late request for
reconsideration. We agree with the district court that substantial evidence supports that
finding. Craven had to show that unavoidable circumstances, agency
misrepresentations, inability to understand the application requirements, or some other
impairment prevented her timely filing. 20 C.F.R. § 416.1411(b)(1)–(4). But substantial
evidence supports the contrary conclusion: Craven testified that the address in Florida
that she provided in her application, and which she never updated with the agency,
was her residence between 2010 and 2013. The agency used that address in 2010 to mail
her its decision, and mailing is evidence of receipt. See Matter of Navistar MaxxForce
Engines Mktg., Sales Pracs., & Prod. Liab. Litig., 990 F.3d 1048, 1050 (7th Cir. 2021) (citing
Hagner v. United States, 285 U.S. 427, 430 (1932)). Craven identifies nothing in her mental
health history or elsewhere that prevented her from contacting the agency in 2010.
Rather, she admitted that she could, did, and preferred to contact the agency by phone
at various times. Finally, she provided no compelling evidence that an agency
representative misled her into inaction. The agency thus had substantial evidence that
Craven “lacked ‘good cause’ for [her] delay.” Casey v. Berryhill, 853 F.3d 322, 326
(7th Cir. 2017).
Craven’s contention on appeal that the agency had a duty to call her when she
did not respond to the 2010 mailings is incorrect as a matter of law and fact. Craven
relies on the agency’s employee manual, the Programs Operations Manuals System, 2 to
argue that the agency had an “obligation to provide [her] notice.” But Craven correctly
observes that the manual “does not have the force and effect of law.” O’Donnell v. Saul,
983 F.3d 950, 958 (7th Cir. 2020) (internal citation omitted). In any event, it does not
support an argument that the agency had to provide more notice (such as by phone)
than Craven received by mail. Agency regulations state that it will communicate by
mail its requests for more information and notices of its decisions; likewise, the
applicant must request reconsideration in writing. See 20 C.F.R. §§ 416.1404(a),
416.1409(b), 416.1322. Beyond all this, the agency had no notice that Craven did not
2
Also known as POMS, available at
https://secure.ssa.gov/apps10/poms.nsf/Home?readform (last visited Nov. 30, 2021).
No. 19-1802 Page 5
receive its mailings. They were not returned to the agency as undeliverable; thus the
agency had no reason to think that Craven needed more notification.
AFFIRMED