United States District Court, D. Connecticut
RULING ON MOTION TO DISMISS
R. Underhill United States District Judge
April 2012, Joann Rice-McKenzie filed an application for
benefits under Title II and Title XVI of the Social Security
Act. The following facts are undisputed. Rice-McKenzie's
claims were initially denied on October 10, 2012, and were
subsequently denied on reconsideration on April 12, 2013.
Upon Rice-McKenzie's request, an administrative law judge
(“ALJ”) issued a decision on June 27, 2014, which
found that Rice-McKenzie was not disabled. The ALJ decision
was mailed to Rice-McKenzie and the accompanying notice
informed her of her right to file an appeal with the Appeals
Council (“Council”) within sixty (60) days of
receipt of the notice. Mot. Dismiss, Ex. A at 1 (doc. #
19-2). The notice also stated that, absent proof otherwise,
the Council would assume that the claimant received the
notice five (5) days after the date of the notice.
Id. Finally, the notice stated that the Council
would dismiss late requests for review unless the claimant
showed that she had a good reason for not filing it on time.
September 4, 2014, Rice-McKenzie filed a request to the
Council seeking review of the ALJ's decision. In the
filing, counsel for Rice-McKenzie acknowledged the
untimeliness of the request and asked the Council to excuse
the lateness because counsel was waiting on additional
medical records and had lost track of time. Upon reviewing
Rice-McKenzie's submission, on June 21, 2016, the Council
found that there was no good cause to extend the time for
filing an appeal and accordingly dismissed the request for
review. Rice-McKenzie then filed an action in this court on
August 24, 2016.
instant complaint, Rice-McKenzie does not allege that the
Council committed any substantive or procedural error in
rejecting her request for review as untimely. Rather,
Rice-McKenzie advances an argument that was not advanced at
the administrative level. She argues that, upon further
review of her counsel's files, it appears that the ALJ
decision was not received by her counsel until July 7, 2014.
If true, Rice-McKenzie's September 4, 2014 request for
review to the Council would be considered timely. She argues
that the decision of this court to dismiss her request for
review without examining the merits of the case would result
in a gross injustice.
405(g) of the Social Security Act “has been interpreted
to require that, generally speaking, administrative
procedures must be exhausted before judicial review is
available.” Dietsch v. Schweiker, 700 F.2d
865, 867 (2d Cir. 1983). The procedures that a plaintiff must
exhaust include “an initial determination, a
reconsideration of that determination, a hearing decision by
an ALJ, and an Appeals Council review.” Gonzalez ex
rel. Guzman v. Sec'y of the Dep't of Health &
Human Servs., 360 F.App'x 240, 245 (2d Cir. 2010)
(citing 20 C.F.R. § 416, subpt. N); see also
Escalera v. Comm'r of Soc. Sec., 457 F.App'x 4,
5 (2d Cir. 2011). A federal court may excuse a claimant's
failure to exhaust administrative remedies if “(1) the
claim is collateral to a demand for benefits; (2) the
exhaustion of remedies would be futile; and (3) plaintiff
would suffer irreparable harm if required to exhaust
administrative remedies.” Faucette v.
Colvin, 2016 WL 866350, at *4 (S.D.N.Y. Mar. 3, 2016)
(citing Pavano v. Shalala, 95 F.3d 147, 150 (2d Cir.
there are exceptions to the administrative exhaustion
requirement, the failure to timely file a request for review
is not one of them. Dietsch, 700 F.2d at 867. In
Dietsch, the Second Circuit considered an action
seeking district court review of the Council's decision
to dismiss an untimely request for review. Id. The
Court held that “[t]he Appeals Council may dismiss an
untimely request for review, 20 C.F.R. § 404.971, and
such a dismissal is not reviewable by the district court
because it is not a ‘final decision' within the
meaning of § 405(g).” Id.; see also
Brandtner v. Dep't of Health & Human Servs., 150
F.3d 1306, 1307 (10th Cir. 1998) (“Plaintiff did not
request administrative review of the ALJ's decision in a
timely manner, the Appeals Council dismissed his request for
review as untimely, and, consequently, there is no
‘final decision' for us to review.”). The
rationale is that the “proper exhaustion of
administrative remedies, and not exhaustion accomplished only
through procedural default, is an element of a reviewable
‘final decision.'” Jones v. Heckler,
613 F.Supp. 72, 75 (N.D. Ill. 1985).
a constitutional claim, the only avenue for seeking review of
the Council's decision based on procedural default is
through the district court's power to issue a writ of
mandamus under 28 U.S.C. § 1361. See Dietsch,
700 F.2d at 868. Section 1361 is an extraordinary remedy that
gives a district court jurisdiction to review otherwise
unreviewable procedural issues not related to the merits of a
claim for benefits. See Id. Mandamus is only proper
if the claimant can show that the Council abdicated its duty
by improperly dismissing the claimant's timely request as
untimely. See id.
within the Council's discretion to decide whether a
claimant has shown the requisite good cause for requesting an
extension of the administrative deadlines. Rivera v.
Apfel, 2001 WL 699065, at *3 (S.D.N.Y. June 21, 2001).
Unless the claimant can point to a specific duty that the
Council failed to perform, the district court may not use its
mandamus powers to force the Council to reconsider its
decision. Compare Id. (mandamus improper because
Council had no duty to provide plaintiff with hearing on
request to extend filing deadline), with Dietsch,
700 F.2d at 868 (mandamus proper because Council failed to
perform duty to accept timely request for review).
instant case, Rice-McKenzie brought an action in this court
after the Council rejected her request for review of the ALJ
decision as untimely. Neither the ALJ's decision nor the
Council's rejection of her untimely request for review
constitutes a “final decision” under section
405(g). See Perry v. Astrue, 2010 WL 122443, at *2-3
(D. Conn. Jan. 7, 2010). Accordingly, I lack jurisdiction to
review either decision.
argues that subsequent information, not raised before the
Council, indicates that her request for review was, in fact,
timely. In support of that argument, Rice-McKenzie provides
the court with a copy of a cover sheet that accompanied the
ALJ's decision. Pl.'s Opp'n, Ex. A. The cover
sheet is marked in pen with the notation “rec'd
7-7-14.” Counsel for Rice-McKenzie attests that the
date on the envelope reflects the actual date that he
received the notice of the ALJ's decision. Id.,
Ex. B at ¶ 2. If he is correct, Rice-McKenzie's
request for review on September 4, 2014, was timely.
not able to consider the merits of that contention because I
have no jurisdiction to review the decision of the Council
absent a claim that it failed to perform a particular duty.
Rice-McKenzie did not raise the arguments before the Council
that she has raised before me. Rather, Rice-McKenzie admitted
to the Council that her request for review was untimely and
she attempted to show good cause for the delay. The Council
heard her request and rejected it for failure to show good
cause. There is no allegation that the Council failed to
perform a duty.
Rice-McKenzie had raised the argument that she received the
ALJ's decision on July 7, 2014, and thus her request for
review was timely, that would be for the Council to decide.
The regulations provide that there is a rebuttable
presumption that the claimant receives notice of the
ALJ's decision five (5) days after the notice is mailed.
See Robbins v. Colvin, 142 F.Supp.3d 205, 207 (D.
Mass. 2015) (citing 20 C.F.R. §§ 404.901,
416.1401). That date would be July 2, 2014. It would be up to
the Council to decide whether counsel's handwritten note
indicating that the notice was received on July 7, 2014,
constitutes adequate proof that it was actually received on
that date. Either way, I am without jurisdiction to
review the Council's decision and the facts do not
warrant the issuance of a writ of mandamus.