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Carlile v. Social Security Administration, Commissioner

United States District Court, N.D. Alabama, Northwestern Division

October 3, 2018

PAUL D. CARLILE, Plaintiff,
v.
SOCIAL SECURITY ADMINISTRATION, COMMISSIONER, Defendant.

          MEMORANDUM OF OPINION

          L. Scott Coogler United States District Judge

         I. Introduction

         Before 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.

         II. Background

         On May 2, 2008, Plaintiff protectively filed an application for a period of disability, disability insurance benefits, and supplemental security income pursuant to the Social Security Act.[1] (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).

         Plaintiff, 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).

         On 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).

         On 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.

         III. Standard of Review

          At 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 Cir. 1983).

         When 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).

         III. Discussion

         The 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.

         A 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. ยงยง 404.901, 416.1401. The Appeals Council will dismiss a request for review if the claimant did not ...


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