United States District Court, N.D. Alabama, Northwestern Division
PAUL D. CARLILE, Plaintiff,
SOCIAL SECURITY ADMINISTRATION, COMMISSIONER, Defendant.
MEMORANDUM OF OPINION
Scott Coogler United States District Judge
the Court is the “Memorandum in Support of the Appeals
Council's Dismissal, ” filed by Defendant, the
Commissioner of the Social Security Administration
(“Commissioner”). (Doc. 11.) For the following
reasons, this action is due to be dismissed and judgment
entered in favor of the Commissioner.
2, 2008, Plaintiff protectively filed an application for a
period of disability, disability insurance benefits, and
supplemental security income pursuant to the Social Security
(Tr. at 4). After an initial denial and a hearing before an
Administrative Law Judge (“ALJ”), on December 3,
2009, the ALJ issued a decision finding Plaintiff not
disabled within the meaning of the Social Security Act. (Tr.
at 1-10). The ALJ sent a copy of the decision to both
Plaintiff and his attorney, notifying Plaintiff of his right
to seek Appeals Council review within 60 days of his receipt
of the decision if he disagreed with the decision. (Tr. at
1-3). The notice stated that “[t]he Appeals Council
assumes you got this notice 5 days after the date of the
notice unless you show you did not get it within the 5-day
period. The Council will dismiss a late request unless you
show you had a good reason for not filing it on time.”
(Tr. at 1).
though counsel, submitted a request for review of the
ALJ's decision to the social security office in Florence,
Alabama, sometime after February 8, 2010. (Tr. at 27).
Plaintiff's counsel's cover letter to the request for
review is dated February 12, 2010, but there is no evidence
that the field office received it on that date. (Tr. at 11,
27). The actual request for review has a date stamp as being
transmitted by facsimile from Plaintiff's counsel's
office on February 18, 2010. (Tr. at 15).
August 12, 2010, the Appeals Council dismissed
Plaintiff's request for review. (Tr. at 24-28). The
Appeals Council explained that although Plaintiff's
counsel stated that he did not receive the ALJ's decision
until December 14, 2009, there was no evidence that Plaintiff
did not timely receive his notice of the ALJ's decision.
(Tr. at 27). The Appeals Council further noted that while
Plaintiff's counsel stated, based on his receipt date,
that the request for review was due February 12, 2010, there
was no evidence that the request was received by the agency
by that date. (Tr. at 27). The date it was received by the
social security office was covered, while the facsimile date
stamp on the request indicates the request was sent February
18, 2010. (Tr. at 27). The Appeals Council concluded that
Plaintiff did not set forth any reason that would warrant
finding good cause for a late filing of his request for
review and dismissed the request. (Tr. at 27). The Appeals
Council advised Plaintiff of his right to seek judicial
review of the dismissal pursuant to Acquiescence Ruling
(“AR”) 99-4(11), 1999 WL 1137369, and
Bloodsworth v. Heckler, 703 F.2d 1233 (11th Cir.
1983). (Tr. at 24-25).
October 14, 2010, Plaintiff filed a Complaint in this Court,
seeking judicial review pursuant to AR 99-4(11) and
Bloodsworth. (Doc. 1.) On January 21, 2011, the
Commissioner moved to remand the case back to the Social
Security Administration pursuant to sentence six of 42 U.S.C.
§ 405(g), because further proceedings were needed to
produce Plaintiff's complete administrative record before
the civil lawsuit could proceed. (Doc. 5.) The Court granted
the motion and dismissed this action on January 25, 2011.
(Doc. 6.) Nearly eight years later, the Commissioner filed
its Answer in this case, listing as an Affirmative Defense
that Plaintiff failed to timely exhaust his administrative
remedies. (Doc. 8.) The Clerk of Court reopened the case and
entered a briefing schedule to the parties on December 15,
2017. (Doc. 10.) Plaintiff has not filed a brief in support
of his Complaint. The Commissioner's brief in support of
the Appeals Council's dismissal is thus presently before
the Court, and this action is ripe for disposition.
Standard of Review
issue is whether the Appeals Council abused its discretion in
dismissing Plaintiff's request for review of the
ALJ's hearing decision denying Plaintiff disability
benefits. Congress has given courts “power to enter,
upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the
Commissioner of Social Security, with or without remanding
the cause for rehearing.” 42 U.S.C. § 405(g). In
the Eleventh Circuit, an Appeals Council's dismissal of a
request for review due to untimeliness constitutes a
“final decision” subject to judicial review.
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
reviewing Appeals Council dismissals, the Court may only
consider whether the Appeals Council's refusal to grant
an extension of time was an abuse of discretion. See
Waters v. Massanari, 184 F.Supp.2d 1333, 1341 (N.D.Ga.
2001) (“All that this Court may consider pursuant to
[Bloodsworth] is whether the Appeals Council abused
its discretion in dismissing Plaintiff's tardy request
for review”). No abuse of discretion exists unless the
Appeals Council has acted “arbitrarily or unreasonably,
” such as by failing to consider relevant factors or by
committing a clear error of judgment. Langford v.
Fleming, 276 F.2d 215, 218 (5th Cir. 1960); see also
Atlanta Gas Light Co. v. F.E.R.C., 140 F.3d 1392, 1397
(11th Cir. 1998).
Appeals Council properly exercised its discretion in
dismissing Plaintiff's untimely request for review of the
ALJ's decision. As an initial matter, because
Plaintiff's request for review was dismissed, this Court
does not have jurisdiction to review the merits of
Plaintiff's claim for disability benefits.
Waters, 184 F.Supp.2d at 1341. To hold otherwise
“would essentially read out of the administrative
scheme the requirement that a claimant seek review at the
Appeals Council level.” See id. Thus, the only
issue before this Court is whether the Appeals Council abused
its discretion in dismissing Plaintiff's untimely request
for review. See id.
claimant who desires Appeals Council review of an ALJ
decision has 60 days after the date that he receives notice
of the decision to file a written request for review.
See 20 C.F.R. §§ 404.968(a)(1),
416.1468(a)(1). The date of receipt is presumed to be 5 days
after the date on the notice unless the claimant shows that
he did not receive it within the 5-day period. See
20 C.F.R. §§ 404.901, 416.1401. The Appeals Council
will dismiss a request for review if the claimant did not