Opinion
01-MC-6010 CJS
January 10, 2002
DECISION AND ORDER
Plaintiff, who is pursuing Social Security Disability Benefits at the administrative level, has brought the subject motion for a prompt hearing, and interim benefits. For the reasons that follow, that application is denied.
BACKGROUND
Plaintiff applied for disability benefits on January 19, 2001, claiming to be disabled as a result of fibromyalgia, depression, anxiety, and hypertension. Her application was denied initially and upon reconsideration. On September 18, 2001, plaintiff filed a motion [#1] before this Court, alleging that she had requested a hearing "in July 2001," and that respondent's delay in scheduling a hearing was unreasonable. Plaintiff also requested an award of interim benefits. At that time, plaintiff also filed a request to proceed in forma pauperis, in which she alleged that she has no income, and that she, her husband, and their three children, live upon her husband's Social Security Disability Benefits.
By Decision and Order filed on September 24, 2001 [#3], this Court granted plaintiff's application to proceed in forma pauperis, but denied the application for a prompt hearing as incomplete and premature, and gave plaintiff until October 22, 2001, to submit an amended motion, indicating the actual date upon which she requested the hearing, and attaching a copy of the notice she received from the respondent, notifying her of her right to file a motion for a prompt hearing.
On October 1, 2001, the Court received a letter [#4] from plaintiff, in which she states, "I cannot wait till next year for my hearing date. I need financial help. I will lose everything if I cannot receive some relief. Could you please help me?"
On October 9, 2001, plaintiff filed a new motion [#5] for a prompt hearing and interim benefits, in which she indicated that she had actually requested a hearing on August 14, 2001. Plaintiff also attached a "Report of Confidential Social Security Benefit Information," which she had received from the respondent, which states: "We show you did filing [sic] a hearing [sic] on 8/15/01 on your disability claim. A decision on this could take at least 6 mths sometimes up to 1 year [sic]." As part of this motion, plaintiff states, "It just seems so long because this is the second time I filed. I originally filed in Sept. or Oct. 2000." The Court interprets this statement to mean that she had previously applied for, and been denied, disability benefits.
On November 28, 2001, respondent filed a response [#7] to the motion, indicating that plaintiff's claim has not been unreasonably delayed, since she only requested a hearing in August, and that, by statute, she is not entitled to interim benefits.
ANALYSIS
42 U.S.C. § 405(b) provides, that, upon request of any individual who has been denied Social Security disability benefits, "the Commissioner shall give such applicant . . . reasonable notice and opportunity for a hearing." Section 405(b) further requires that such hearings be held within a reasonable time. Heckler v. Day, 467 U.S. 104, 111 (1984). In Day, the U.S. Supreme Court held that courts may not impose on the Social Security Administration general deadlines for determining disability claims: "We conclude that the legislative history make clear that Congress, fully aware of the serious delays in resolution of disability claims, has declined to impose deadlines on the administrative process." Id. at 110-11. However, the Supreme Court also noted: "We make clear that nothing in this opinion precludes the proper use of injunctive relief to remedy individual violations of § 405(b)." Id. at 119, n. 33 (Emphasis added). The Court therefore finds that it may, in a particular case, direct the Commissioner to schedule a hearing by a specific deadline, if the Commissioner has unreasonably delayed doing so.
The Court is aware, from its own experience, that, unfortunately, significant delays are commonplace in Social Security disability cases. See, e.g., Warne v. Apfel, 99-CV-6197 CJS, Decision and Order dated September 25, 2000, p. 5 (Plaintiff's claim was denied on reconsideration on October 4, 1995, and the hearing before an ALJ was not conducted until April 24, 1997). However, the Court does not believe that the delay which plaintiff has experienced to date in receiving a hearing date is necessarily either egregious or unreasonable. Nonetheless, the Court is troubled by the respondent's failure to explain the delay, or to give even an estimate as to when plaintiff's hearing will be scheduled. As indicated above, respondent notified plaintiff only that, "[a] decision on this could take at least 6 mths sometimes up to 1 year."
It is unclear from this statement whether the word "this" is referring to the scheduling of a hearing, or the hearing itself. Respondent's response appears to assume that a 4-month delay in setting a hearing date is per se reasonable, and that any explanation for the delay was therefore unnecessary. However, the Court disagrees.
Accordingly, the Court will deny plaintiff's motion for an order directing that a hearing be scheduled within a specific time, but it will direct respondent to file and serve, within 30 days of the date of the filing of this Decision and Order, a letter notifying the Court and the petitioner as to whether or not a hearing has been scheduled. In the event that a hearing has not been scheduled, the respondent is directed to set forth the reasons therefore. The respondent's failure to do so may result in the Court issuing an order, directing that a hearing be scheduled by a particular deadline.
As for plaintiff's request for interim benefits, that application is also denied. As respondent correctly asserts, the Social Security Act does not provide for an award of interim benefits in "original entitlement" cases such as this. Rather, the statute permits an award of interim benefits only in situations where the claimant has already been found entitled to receive benefits, such as where a claimant had been receiving disability benefits, and where the respondent subsequently determines that "the physical or mental impairment on the basis of which such benefits are payable is found to have ceased, not to have existed, or to no longer be disabling," or where an ALJ has found, after a hearing, that the claimant is entitled to benefits, but the Commissioner has delayed issuing a final decision within 110 days after the ALJ's determination. See, 42 U.S.C. § 423(g) (h).
However, despite the absence of any statutory authority, some courts in this district, relying upon Day v. Schweiker, 685 F.2d 19 (2d Cir. 1982), vacated, 467 U.S. 104, have ordered an award of interim benefits in original entitlement cases "where a claimant is faced with unreasonable delay attributable to the Secretary." Saltares v. Bowen, 711 F. Supp. 162, 164 (S.D.N.Y. 1989). However, the delay which plaintiff has experienced to date does not approach the level experienced by the claimants in those cases which have found such unreasonable delay. See, e.g., Saltares, 711 F. Supp at 165-66 (Finding that a period of 25 months to complete the administrative process was not unreasonable: "These time periods, though lengthy, do not appear unreasonably so, given the Court's experience in these matters. . . . Unlike the situation in Weiser and Jefferson, plaintiff has not undergone two sets of hearings and the Secretary has not delayed the proceedings before the Court. For these reasons, the Court concludes that the award of interim benefits is not warranted in this case."). Accordingly, plaintiff's application for interim benefits is denied.
The Second Circuit's decision in Day was vacated by Heckler v. Day, 467 U.S. 104 (1984), discussed above. However, the Supreme Court did not reach the issue of interim benefits. See, Id. at 119, n. 34.
CONCLUSION
For all of the foregoing reasons, petitioner's application for a hearing and for interim benefits is denied, without prejudice. Respondent is directed to file and serve a letter, within 30 days of the date of filing of this Decision and Order, notifying the Court and petitioner as to whether or not a hearing has been scheduled. In the event that a hearing has not been scheduled, the respondent is directed to set forth the reasons therefore. The respondent's failure to do so may result in the Court issuing an order, directing that a hearing be scheduled by a particular deadline.
So Ordered.