Smith v. Comm'r of Soc. Sec.

• Citation: 880 F.3d 813
• Decision Date: 26 January 2018
• Docket Number: No. 17-5809,17-5809
• Parties: Ricky Lee SMITH, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

880 F.3d 813

Ricky Lee SMITH, Plaintiff-Appellant,

v.COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.

No. 17-5809

United States Court of Appeals, Sixth Circuit.

Decided and Filed: January 26, 2018

ON BRIEF: Wolodymyr Cybriwsky, Prestonburg, Kentucky, for Appellant. Laura H. Holland, SOCIAL SECURITY ADMINISTRATION, Denver, Colorado, for Appellee.

Before: MERRITT, GRIFFIN, and DONALD, Circuit Judges.

MERRITT, Circuit Judge.

Ricky Lee Smith filed an application for supplemental security income resulting from disability. A hearing was conducted before an administrative law judge ("ALJ"). The ALJ issued an unfavorable decision, finding that Smith was not disabled under the Social Security Act. The notice of decision stated that Smith had sixty days to file a written appeal with the Appeals Council if he disagreed with the ALJ's decision. Smith's attorney claimed he timely mailed a request for review to the Appeals Council, but was unable to provide any independent evidence of this. The Social Security Administration did not receive the request until approximately four months after the time for appeal had expired. Finding no good cause for the untimeliness, the Appeals Council dismissed the appeal. Smith subsequently filed a civil complaint seeking review of the Appeals Council's dismissal of his untimely request for review. The district court dismissed his complaint for lack of jurisdiction and because Smith made no colorable constitutional claims.

On appeal to this court, Smith alleges that he suffered due process violations because: (1) his request for Appeals Council review was timely submitted but dismissed as untimely, (2) a different ALJ signed his hearing decision than the one that presided over his hearing, and (3) the ALJ referenced Smith's 1988 favorable supplemental security income decision in his unfavorable decision denying income for new medical conditions, but failed to attach a copy of it as an exhibit. We hold that an Appeals Council decision to refrain from considering an untimely petition for review is not a "final decision" subject to judicial review in federal court. Further, for the reasons explained below, each of Smith's due process arguments fail. Therefore, we AFFIRM the order of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

On September 18, 1987, Smith filed an application for supplemental security income resulting from disability. On October 13, 1988, an ALJ issued a favorable decision. Smith received benefits until 2004, when he was found to be over the resource limit.

Smith filed another application for supplemental security income on August 7, 2012, alleging additional medical conditions as a result of his original disability. The claim was initially denied, and denied again upon reconsideration.

Smith timely filed a request for a hearing before an ALJ. A hearing was conducted by videoconference before ALJ Robert Bowling on February 18, 2014. On March 26, 2014, ALJ Don Paris signed a decision on behalf of ALJ Bowling denying Smith's claim. Pursuant to the governing regulations, Smith had sixty days to appeal the decision to the Appeals Council. He claims that he mailed a written request for review to the Appeals Council on April 24, 2014.¹ On September 21, 2014, Smith faxed a correspondence to the Society Security Administration, inquiring as to the status of his appeal, and attaching a copy of his written request, which was dated April 24, 2014. A claims representative informed Smith in a letter dated October 1, 2014, that his request had not been placed in the "electronic folder," and that if the Appeals Council had received the request, it would have mailed a receipt. The representative mailed a completed request for review form to the Appeals Council along with Smith's written request for review. The representative informed Smith that his appeals request was filed as of that day, October 1, 2014. On November 6, 2015, the Appeals Council dismissed the request for review as untimely, having found no good cause to extend the time for filing because Smith's attorney could not provide evidence indicating that it was sent within the appropriate time.

Smith filed a civil action seeking review of the Appeals Council's dismissal. Smith alleged in his complaint that the Appeals Council improperly dismissed his request for review and that he suffered due process violations. The Commissioner moved to dismiss the complaint for lack of subject matter jurisdiction, and alternatively, for failure to state a claim. The district court determined that there was no judicial review available because the Appeals Council's dismissal of Smith's request for appeal as untimely did not constitute a final decision and Smith made no colorable constitutional claims. It subsequently granted the Commissioner's motion. Smith filed a motion for relief from the court's order, which the court denied. He now appeals.

II. ANALYSIS

A. Jurisdiction

The threshold question is whether the decision of the Appeals Council not to consider Smith's untimely request for review was a "final decision" subject to judicial review under 42 U.S.C. § 405(g). We hold that it was not.

We review de novo a district court's dismissal for lack of subject matter jurisdiction. See Willis v. Sullivan , 931 F.2d 390, 395 (6th Cir. 1991). The Social Security Act limits judicial review to a "final decision" of the Commissioner made after a hearing. 42 U.S.C. § 405(g). When a claimant is not satisfied with an ALJ's hearing decision, the claimant may request review from the Appeals Council within sixty days of receipt of the decision.

20 C.F.R. §§ 416.1467 – 416.1468. The Appeals Council may "deny or dismiss the request for review, or it may grant the request and either issue a decision or remand the case" to an ALJ. Id. § 416.1467. If the claimant demonstrates good cause for missing the filing deadline, the regulations permit the Appeals Council to extend the time for filing an otherwise untimely request for review. Id. § 416.1468(b). If the Appeals Council dismisses the request for review as untimely, the dismissal is binding and not subject to further review. Id. §§ 416.1471–416.1472. Judicial review is available only after administrative exhaustion. Id. § 416.1400(a)(5).

In Califano v. Sanders , 430 U.S. 99, 108, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977), the Supreme Court held that judicial review of a denial of a petition to reopen a prior final decision is unavailable in the absence of a colorable constitutional claim. The Court reasoned that, "an interpretation that would allow a claimant judicial review simply by filing and being denied a petition to reopen his claim would frustrate the congressional purpose, plainly evidenced in [§] 205(g), to impose a 60–day limitation upon judicial review of the Secretary's final decision on the initial claim for benefits." Id.

We have not directly addressed the issue at hand in a published opinion, but we have addressed similar issues on which we can rely. In Hilmes v. Secretary of Health & Human Services , 983 F.2d 67, 68 (6th Cir. 1993), the claimant had sixty days to request a hearing before an ALJ after receiving a notice of award from the Social Security Administration. The claimant sought an extension of the request deadline, but then failed to request a hearing until after the extension had expired. Id. The ALJ subsequently dismissed the request for a hearing as untimely, and the Appeals Council declined to review the matter, although it noted that there had been no good cause for missing the extended deadline. Id. In affirming the district court's dismissal of the plaintiff's petition, we followed the Sanders rationale and held that the dismissal of a hearing request as untimely was unreviewable. Id. at 69–70. In subsequent unpublished cases, we have applied the Sanders and Hilmes rules to hold that an order from the Appeals Council dismissing a plaintiff's appeal as untimely is not a "final decision" as defined by the Social Security Act and regulations. See Coleman v. Comm'r of Soc. Sec. , No. 96-1395, 1997 WL 539674, at *2 (6th Cir. Aug. 29, 1997) (per curiam) (unpublished table decision); Young v. Comm'r of Soc. Sec. , No. 95-2357, 1996 WL 343527, at *1 (6th Cir. June 20, 1996) (unpublished table decision).

Turning to our sister circuits, the majority view is that the Appeals Council's decision to hear an untimely request for review is discretionary, and refusals of such requests do not constitute "final decisions" reviewable by district courts. See, e.g. , Brandtner v. Dep't of Health & Human Servs. , 150 F.3d 1306, 1307 (10th Cir. 1998) ; Bacon v. Sullivan , 969 F.2d 1517, 1520 (3d Cir. 1992) ; Matlock v. Sullivan, 908 F.2d 492, 494 (9th Cir. 1990) ("[P]ermitting claimants to obtain judicial review of denials of their requests for extensions of time would frustrate Congress' intent to forestall belated litigation of stale claims."); Harper ex rel. Harper v. Bowen, 813 F.2d 737, 743 (5th Cir. 1987) (holding that the Appeals Council's refusal to grant an extension and consider an untimely request for review is not, under Sanders and the Secretary's requirements for exhaustion, a "final decision"); Adams v. Heckler, 799 F.2d 131, 133 (4th Cir. 1986) ; Dietsch v. Schweiker, 700 F.2d 865, 867 (2d Cir. 1983). Only the Eleventh Circuit sees this issue differently. See Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

The Eighth Circuit expressed compelling reasoning for determining that the dismissal of an appeal for failure to timely file is not a final decision:

The Appeals Council may dismiss a request for review if it is not filed within the stated time. 20 C.F.R. § 404.971 (1984). Such dismissal is binding and not subject to further review. Id. 404.972. Such action does not address the merits of the claim, and thus cannot be considered appealable, as can the Appeals Council's decisions and denials of timely requests for review. See id. § 404.981. As we stated in Sheehan , "If the

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