10-3942-cv
Henry v. Social Security Administration

                  UNITED STATES COURT OF APPEALS
                      FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING
A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER").
A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan United
States Courthouse, 500 Pearl Street, in the City of New York, on
the 15th day of November, two thousand eleven.
PRESENT:
            AMALYA L. KEARSE,
            PIERRE N. LEVAL,
            DENNY CHIN,
                      Circuit Judges.

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JOHN ARNOLD HENRY,
          Plaintiff-Appellant,

                  -v.-                                  10-3942-cv

SOCIAL SECURITY ADMINISTRATION,
COMMISSIONER,
          Defendant-Appellee.

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FOR PLAINTIFF-APPELLANT:             JOHN J. BALKUNAS, JR., Bauer,
                                     Gravel, Farnham, Nuovo, Parker &
                                     Lang, North Hero, Vermont.

FOR DEFENDANT-APPELLEE:              KEVIN J. DOYLE, Assistant United
                                     States Attorney (Carol L. Shea,
                                     Chief, Civil Division, on the
                                     brief), for Tristram J. Coffin,
                                     United States Attorney for the
                                     District of Vermont, Burlington,
                                     Vermont.
          Appeal from the United States District Court for the

District of Vermont (Conroy, M.J.).
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

          Plaintiff-appellant John Arnold Henry appeals from the

district court's July 27, 2010 judgment granting summary judgment

in favor of defendant-appellee the Commissioner of Social

Security (the "Commissioner") and denying Henry's request for

leave to file an amended complaint.   Henry sought review of the

Commissioner's decision denying him back payments of disability

insurance benefits pursuant to 42 U.S.C. § 405(g).

          In the administrative proceedings below, an

Administrative Law Judge ("ALJ") determined that Henry was

disabled for a closed period beginning on December 24, 1999 and

ending on September 1, 2001.   The ALJ, however, concluded that

Henry was not entitled to back payments for this period of

disability because he had filed his application for benefits on
April 26, 2005, well beyond the prescribed twelve-month period in

which a claimant can file for benefits after the end of a

disability.   See 20 C.F.R. § 404.315(a)(3).   Henry sought review

by the Appeals Council of the ALJ's decision, alleging for the

first time that he had been misinformed by Social Security

Administration ("SSA") personnel as to when he had to file his

application for benefits.   The Appeals Council denied Henry's

request to review the determination and informed Henry that the




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ALJ's decision constituted the final decision of the Commissioner

in his case.

          Henry filed a complaint in the district court, seeking

judicial review of the Commissioner's decision.   The Commissioner

brought a motion to dismiss for lack of subject matter

jurisdiction under Federal Rule of Civil Procedure 12(b)(1),

which the district court treated as a motion to dismiss for

failure to state a claim under Rule 12(b)(6) and subsequently

converted into a motion for summary judgment in accordance with

Rule 12(d).    The court granted the motion for summary judgment in

favor of the Commissioner, and Henry now appeals.   We assume the

parties' familiarity with the underlying facts and issues on

appeal.

          "We review the administrative record de novo to

determine whether there is substantial evidence supporting the

Commissioner's decision and whether the Commissioner applied the

correct legal standard."   Machadio v. Apfel, 276 F.3d 103, 108

(2d Cir. 2002) (internal citation omitted).   We have conducted an

independent review of the record in light of these principles.

We affirm the district court's dismissal of Henry's complaint for

substantially the reasons articulated by the district court.

Specifically, Henry did not raise a properly supported

misinformation claim before the Appeals Council because he failed

to satisfy the substantive requirements of 20 C.F.R. § 404.633.

          If the SSA gives a claimant "misinformation about [his

or her] eligibility for . . . benefits," and that misinformation


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causes the claimant to file a benefits application outside the

twelve-month period noted above, the SSA may deem the application

to have been filed within the requisite period, thus allowing an

otherwise-qualified applicant to receive cash benefits.       20

C.F.R. § 404.633(a).   A misinformation claim "must contain

information that will enable [the SSA] to determine if [it] did

provide misinformation to [the individual] about [his or her]

eligibility for benefits."    20 C.F.R. § 404.633(f).   Section

404.633(d) requires evidence that SSA personnel provided

misinformation.   20 C.F.R. § 404.633(d).    "Preferred evidence"

includes an SSA "notice, letter or other document" or an SSA

record of a "telephone call, letter or in-person contact"

providing such misinformation.    20 C.F.R. § 404.633(d)(1)(i)-

(ii).    "Other evidence" that the SSA may consider in the absence

of "preferred evidence" includes statements by the claimant as to

the date and time of the alleged misinformation, how the SSA

provided the information, why the claimant requested the

information, who furnished the information, and any other details

about the interaction in which the alleged misinformation was

given.    20 C.F.R. § 404.633(d)(2).   Additionally, the SSA may

consider the statements of others who were present at the time of

the exchange, including the SSA employee who interacted with the

claimant or any witnesses on behalf of the claimant.    Id.        The

SSA will not, however, make a finding of misinformation "based

solely on [the claimant's] statements."     Id.




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          Here, Henry failed to present a properly supported

misinformation claim.     Henry's allegations of misinformation,

made for the first time in a letter from his attorney to the

Appeals Council,1 stated that Henry remembers calling the SSA

"between April 2000 and 2 years after . . . December 24, 1999"

and was told that "he could 'wait until the end of

treatment/disability before filing.'"    Claimant's Jan. 17, 2008

Letter to SSA at 2.   Henry offers no "preferred evidence" or

"other evidence" as prescribed by 20 C.F.R. § 404.633(d) in

support of his claim and relies solely on unsworn allegations

conveyed by his lawyer.    His counsel's description of a general

recollection lacking in specificity is insufficient.

Consequently, Henry failed to present a properly supported

misinformation claim before the Commissioner, and thus the claim

fails.

          We have considered appellant's other arguments on

appeal, and we find them to be without merit.    Accordingly, the

judgment of the district court is hereby AFFIRMED.


                                 FOR THE COURT:
                                 CATHERINE O'HAGAN WOLFE, CLERK




     1
          Because Henry failed to raise this claim earlier in the
administrative process, the Commissioner contends that he waived
it. We need not decide whether the claim was waived because,
even if Henry was allowed to raise his misinformation claim for
the first time before the Appeals Council, we conclude here that
he failed to satisfy the substantive requirements of 20 C.F.R. §
404.633 that the claim be properly supported.

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