United States District Court, D. Connecticut
RULING ON MOTION TO DISMISS
Donna
F. Martinez United States Magistrate Judge
Pending
before the court in this social security appeal is the
defendant's motion to dismiss. (Doc. #16.) The motion is
granted.[1]
I.
Procedural Background
In
February 2018, the plaintiff, who is self-represented,
commenced this action seeking review of the final
determination of the Commissioner denying the plaintiff's
application for SSA benefits. Attached to the complaint was a
notice from the Appeals Council that it had "dismissed
[his] request for review" and that "dismissal of a
request for review is final and not subject to review."
(Doc. #1 at 4.) The defendant thereafter moved to dismiss the
plaintiff's complaint because the plaintiff failed to
exhaust administrative remedies. (Doc. #16.) The plaintiff
did not file any response to the defendant's motion. The
court, in an abundance of caution, issued an order extending,
sua sponte, the deadline by which the plaintiff could file a
response. In addition, the court notified the plaintiff that
"[i]f no opposition is filed, the court may grant the
defendant's motion." (Doc. #18.) Still the plaintiff
did not file a response to the defendant's motion.
II.
Facts
On
March 1, 2016, an Administrative Law Judge ("ALJ")
issued a Notice of Decision ("Notice") denying the
plaintiff's applications. (Doc. #16-5.) The Notice
advised the plaintiff of his right to appeal the ALJ's
decision by filing a request for Appeals Council review
within 60 days of receipt of the Notice, that is, by no later
than May 5, 2016. 20 C.F.R. § 404.968(a)(1). It warned,
however, that untimely requests for review would be dismissed
unless plaintiff could show a "good reason for not
filing it on time." (Doc. #16-5.)
The
plaintiff did not file a Request for Review of the ALJ's
decision with the Appeals Council until January 26, 2017.
(Doc. #16, Prelle Decl. ¶3(d).) On November 14, 2017,
the Appeals Council sent the plaintiff a letter notifying him
that his request for review was untimely. The letter
explained that the Notice of the ALJ's decision was dated
March 1, 2016 and therefore "the last day you could file
your request for review was May 5, 2016." (Doc. #16,
Prelle Decl. ¶(3)(e); doc. #16-7 at 1.) The letter
further stated that the plaintiff's request for review
did not contain any "statement or other information
about why [the plaintiff] did not file an appeal on
time." (Doc. #16-7 at 1.) The SSA advised the plaintiff
to "send us a statement showing the reason(s) why you
did not file the request for review within 60 days."
(Doc. #16-7 at 1.) On December 4, 2017, the plaintiff
submitted a letter. (Doc. #16-8.) By order dated December 19,
2017, the Appeals Council found that the plaintiff had not
demonstrated good cause for extending the deadline. (Prelle
Decl. ¶(3)(g); doc. #16-9 at 2.). This action followed.
III.
Discussion
The
defendant argues that the plaintiff's complaint should be
dismissed for failure to exhaust administrative remedies.
Section
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 Fed.Appx. 240, 245 (2d Cir. 2010)
(citing 20 C.F.R. § 416, subpt. N); see also
Escalera v. Comm'r of Soc. Sec., 457 Fed.Appx.
4, 5 (2d Cir. 2011). "[A] timely request for review by
the Appeals Council is required for exhaustion of
administrative remedies." Rivera v. Apfel, No.
01 CIV. 0752 (NRB), 2001 WL 699065, at *2 (S.D.N.Y. June 21,
2001). "Though there are exceptions to the
administrative exhaustion requirement, the failure to timely
file a request for review is not one of them."
Rice-McKenzie v. Colvin, No. 3:16CV1448(SRU), 2017
WL 2960507, at *1 (D. Conn. July 11, 2017). at
*2.[2].
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."). See Rice-McKenzie, 2017 WL 2960507, at *2
(where plaintiff brought an action after the Council rejected
her request for review of the ALJ decision as untimely,
"[n]either the ALJ's decision nor the Council's
rejection of her untimely request for review constitutes a
'final decision' under section 405(g). . . .
Accordingly, I lack jurisdiction to review either
decision."); Rivera, 2001 WL 699065, at *2 ("It is
well settled in the Second Circuit that the Appeals Council
may dismiss untimely requests for review and that such
dismissals do not constitute 'final decisions' within
the meaning of § 405(g). . . . The Appeals Council may
extend the filing time on a showing of good cause, but a
refusal to do so, like a dismissal of an untimely request, is
not considered a final decision by the Commissioner.")
(citing cases)
Here,
it is undisputed that the plaintiff did not request review of
the ALJ's within 60 days. Therefore, he failed to exhaust
his administrative remedies and the court lacks jurisdiction.
See Echeandia v. Berryhill, No. 3:18CV42(JGM), 2018
WL 1951132, at *4 (D. Conn. Apr. 25, 2018)(where plaintiff
failed to exhaust, the court lacks jurisdiction); Muniz
v. Astrue, No. 07-CV-1945, 2007 WL 4591259, at *1
(E.D.N.Y. 2007) ("[W]here a claimant has not received a
'final decision' from the Commissioner, his claim for
benefits is unexhausted and a federal district court is
without subject matter jurisdiction to review it.");
Keesing v. Apfel, 124 F.Supp.2d 134, 135 (N.D.N.Y.
2000) ("The requirements of 42 U.S.C. §§
405(g) and (h) are prerequisites for subject matter
jurisdiction, which plaintiff satisfied once he exhausted his
administrative procedures and obtained a final decision after
being denied review from the Appeals Council.").
There
are certain circumstances in which a federal court may excuse
a claimant's failure to exhaust. "[A]
plaintiff's failure to exhaust administrative remedies
can be excused if (1) the claim is collateral to a demand for
benefits, (2) exhaustion would be futile, or (3) requiring
exhaustion would result in irreparable harm." Skubel
v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997). Here, the
plaintiff's claim "is not collateral to his demand
for benefits, as it involves a demand for [retroactive]
benefits." Escalera, 457 Fed.Appx. at 6. Moreover,
nothing in the record suggests that exhaustion would be
futile or that requiring exhaustion would result in
irreparable harm. Accordingly, in the absence of a
"final decision" as required by 42 U.S.C. §
405(g), this case must be dismissed.
IV.
Conclusion
For
these reasons, the defendant's motion to dismiss the
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