Opinion
01 Civ. 0752 (NRB)
June 21, 2001
OPINION and ORDER
Plaintiff Hortencia Rivera ("plaintiff") commenced this action pursuant to 42 U.S.C. § 405 (g), 28 U.S.C. § 1361, and the Due Process Clause of the Fifth Amendment seeking review of an order of the Social Security Appeals Council ("Appeals Council") denying as untimely filed plaintiff's request for review of an Administrative Law Judge's ("ALJ") unfavorable decision. The Commissioner of Social Security ("Commissioner") moves to dismiss the complaint for lack of subject master jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1)
Procedural History
On April 8, 1996, plaintiff filed concurrent Title II and XVI applications for disability and supplemental security income benefits, which were denied initially and upon reconsideration. Plaintiff timely filed a request for a hearing. A hearing was held before ALJ Kenneth G. Levin on June 17, 1998 at which plaintiff was represented by an attorney. On June 26, 1998, the ALJ denied plaintiff's application for Social Security benefits finding that the plaintiff was not "disabled" within the meaning of the Social Security Act.
The ALJ sent the Notice of Decision ("Notice") to both plaintiff and her attorney. The Notice advised plaintiff of her right to appeal the ALJ's decision by filing a request for Appeals Council review with any Social Security office or by mailing a request to the Appeals Council within 60 days of receipt of the Notice. 20 C.F.R. § 404.968(a)(1). It warned, however, that untimely requests for review would be dismissed unless plaintiff could show "good cause" for late filing. Under the Social Security Code, a party is presumed to have received Notice five days after it is postmarked. 20 C.F.R. § 404.901. Because the Notice was dated June 26, 1998, the time for requesting review expired on August 31, 1998. However, plaintiff and her attorney claim that they never received notification of the unfavorable decision.
On October 2, 1998, plaintiff's attorney states that he contacted ALJ Levin's assistant, Ms. Violet Williams, to ascertain the status of the case. At that time, plaintiff's attorney learned of the unfavorable decision.
On November 24, 1998, the Appeals Council received, by facsimile, several letters with attachments from plaintiff's attorney requesting review of the ALJ's decision. By letterr dated May 29, 1999, the Appeals Council advised plaintiff that her request was untimely and that she had thirty days to demonstrate "good cause" for her failure to request review within the 60-day period. Plaintiff thereafter submitted copies of a letter from her attorney and his law firm's office manager that indicated the firm did not learn of the decision until her attorney's October 2, 1998 telephone conversation with Ms. Williams. The firm also informed the Appeals Council by letter that it had been unable to obtain a statement from plaintiff regarding when she received the decision because she had been hospitalized for the previous eight weeks.
By order of July 21, 2000, the Appeals Council found that plaintiff had not demonstrated good cause for extending the deadline. The Appeals Council noted that a review of the record file revealed that copies of the hearing decision were directed to plaintiff and her attorney, and that the file contained no indication that either of these copies of the decision had been returned by the post office. Furthermore, the Appeals Council found that the evidence did not establish that the plaintiff's hospitalization prevented her from timely filing her request for review. Thus, the Appeals Council denied plaintiff's request for review. On January 31, 2000, plaintiff commenced this action seeking an order directing the Appeals Council to review the ALJ's decision.
DISCUSSION
Plaintiff identifies three bases for this Court's jurisdiction over this action: (1) the judicial review provision of the Social Security Act, 42 U.S.C. § 405(g); (2) the mandamus provision of 28 U.S.C. § 1361; and the Due Process Clause of the Fifth Amendment to the Constitution.Congress has created a very limited scheme for judicial review of disability claims under Title II of the Social Security Act, 42 U.S.C. § 401-33 (1976 Supp. V. 1981). 42 U.S.C. § 405(h) explicitly precludes any action to recover on a disability claim brought under certain statutes, such as 28 U.S.C. § 1331, 1346. In addition, a claimant must follow administrative procedures before obtaining judicial review where it is available. Regulation 20 C.F.R. § 404.968 (a)(1) requires that a claimant file a written request for review of an ALJ's decision "within 60 days after the date (the claimant] receive(s] notice of the hearing decision or dismissal." When notice of an ALJ's decision is sent to a claimant, it is presumed that the notice is received within five days after the date of the decision. Therefore, in practice, claimants actually have 65 days to file a request for review. The Appeals Council may extend this 65-day period if the claimant demonstrates "good cause" for missing the deadline. 20 C.F.R. § 404.969 (b).
Section 405(g) governs judicial review of an individual's claim for Social Security benefits and provides:
Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow.42 U.S.C. § 405(g). Courts have interpreted this section to mean that administrative procedures must be exhausted before judicial review becomes available. See Mathews v. Eldridge, 424 U.S. 319, 327-330 (1976); Weinberger v. Salfi, 422 U.S. 749, 757 (1975); Dietsch v. Schweiker, 700 F.2d 865, 867 (2d Cir. 1983)
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). See Dietsch v. Schweiker, 700 F.2d at 867; Oquendo v. Commissioner of Social Security, 98 F. Supp.2d 507, 509-510 (S.D.N.Y. 2000); see also, Bacon v. Sullivan, 969 F.2d 1517, 1520-21 (3d Cir. 1992); Sheehan v. Secretary, Health, Educ. and Welfare, 593 F.2d 323, 326 (8th Cir. 1979). 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. Maloney v. Harris, 526 F. Supp. 621, 622 (E.D.N.Y. 1980), aff'd mem., 657 F.2d 264 (2d Cir. 1981); Weiss v. Secretary of U.S. Dept. of Health and Human Servs., 859 F. Supp. 58, 61 (E.D.N.Y. 1994). Courts have also found that a timely request for review by the Appeals Council is required for exhaustion of administrative remedies. See Oquendo v. Commissioner of Social Security, 98 F. Supp.2d at 509; Harper by Harper v. Bowen, 813 F.2d 737, 743 (5th Cir. 1987)
The Commissioner contends that this Court does not have subject matter jurisdiction over this action under § 405(g) because plaintiff does not seek review of a "final decision." We find, as in Oquendo, that since another level of administrative review would have been available to plaintiff if she had submitted her request within the 65-day period, the ALJ's decision does not constitute a "final decision" and, therefore, is not subject to judicial review under § 405(g).
Plaintiff next argues that this court has jurisdiction to review the Appeals Council's denial on mandamus. 28 U.S.C. § 1361 provides that "district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or an employee of the United States or any agency thereof to perform a duty owed to the plaintiff." The Supreme Court has explained that "[t]he common-law writ of mandamus . . . is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty." Heckler v. Heckler, 466 U.S. 602, 616 (1984)
The Second Circuit has held that under certain limited circumstances, a district court may take subject matter jurisdiction through mandamus over social security cases where the 405(g) final requirement has not been met. See Dietsch v. Schweiker, 700 F.2d at 868. The key question is whether the Appeals Council had a clear nondiscretionary duty to find that plaintiff demonstrated "good cause" and to grant her request for review of the ALJ's decision. See Burbage v. Schweiker, 559 F. Supp. 1371 (N.D.Cal. 1983); Tudor v. Shalala, 863 F. Supp. 119, 124-125 (E.D.N.Y. 1994). In Dietsch, plaintiff mailed his request for review on the last day of the 60-day filing period, but the Appeals Council received his request after the deadline had expired. The Appeals Council dismissed his appeal on the ground that it was untimely filed. The district court then dismissed plaintiff's suit for judicial review of the Appeals Council decision because it was not a "final decision" within the meaning of § 405(g). The Second Circuit reversed the district court's decision and held that the district court had mandamus jurisdiction to review plaintiff's case. In making its determination, the Second Circuit found that if mailing the appeal constituted filing, and plaintiff mailed his request within the 60-day period, the Commissioner had a clear nondiscretionary duty to deny or review plaintiff's timely request.
However, plaintiff's case is readily distinguished from Dietsch. The Appeals Council has discretion to extend the time for filing a hearing request. See Garza v. Chater, 891 F. Supp. 464, 468 n. 7 (N.D. Ill. 1995); Burbage v. Schweiker, 559 F. Supp. at 1375; Tudor v. Shalala, 863 F. Supp. at 124-125; see also Suffolk County Dept. of Soc. Servs. v. Shalala, No. 95-CV-3143, 2000 WL 1157827, at *8 (E.D.N.Y. Mar. 3, 2000) (action for review of Medicare administration decision, rejecting plaintiff's contention that the Commissioner owed plaintiff a nondiscretionary duty to apply its good cause standards). Although 20 C.F.R. § 404.911 does list the factors that the Appeals Council should consider in determining whether a plaintiff has good cause for late filing, ultimately, the Appeals Council's decision is discretionary. Furthermore, relevant regulations do not impose a duty on the ALJ to conduct a hearing on the issue of good cause. See Garza v. Chater, 891 F. Supp. at 469 ("the Social Security Administration had no duty to provide plaintiff with any hearing to decide whether good cause existed for her belated request for a hearing."); Burbage v. Schweiker, 559 F. Supp. at 1375. Therefore, because the Appeals Council has discretion in finding whether to extend a plaintiff's time to file for good cause, mandamus does not apply.
In the present case, the Appeals Council acted well within its discretionary authority in deciding that plaintiff failed to demonstrate good cause for her untimely appeal and dismissing her request for review of the ALJ's decision. Plaintiff's appeal was clearly untimely. Since the Notice was dated June 26, 1998, the time for requesting review expired on August 31, 1998. Plaintiff did not file her appeal until November 24, 1998, nearly three months after the 60-day deadline. The Appeals Council noted that the file contained no indication that the post office returned either plaintiff's or her attorney's copy of the ALJ's unfavorable decision. It also reviewed the evidence submitted by her attorney indicating that plaintiff had been hospitalized, but found that this evidence did not establish that medical treatment prevented plaintiff from timely filing her request for review. Therefore, mandamus jurisdiction is not warranted in this case because the Commissioner followed applicable regulations and had no clear nondiscretionary duty to find that plaintiff had shown good cause or to grant her request for review.
Furthermore, we note that plaintiff waited 54 days after she acknowledged receiving notice of the Appeals Council's adverse decision, to file her appeal.
Finally, plaintiff asserts that the Appeals Council violated her due process rights by dismissing her request for review of the ALJ's decision. A fundamental requirement of due process is the opportunity to be heard "at a meaningful time in a meaningful manner." Mathews v. Eldridge, 424 U.S. 319 (1976). The Supreme Court has recognized an exception to § 405(g)'s "final decision" requirement, holding that a district court may have jurisdiction to review a constitutional challenge to a decision of the Commissioner. Califano v. Sanders, 430 U.S. 99, 109 (1977).
However, plaintiff has failed to state a "colorable constitutional claim" for violation of her due process rights. Plaintiff's due process right to be heard does not entitle her to a hearing prior to every administrative action in which she has an interest. In Burbage v. Schweiker, the district court faced similar facts and found that plaintiff "was merely asking this Court to review the ALJ's discretionary decision to deny an extension of time for filing a hearing request, or in the alternative, to order the ALJ to grant a hearing to determine whether "good cause' for plaintiff filing exists. Plaintiff has simply not articulated a constitutional claim such as would support jurisdiction . . ." Burbage v. Schweiker, 559 F. Supp. at 1374; §See Coleman v. Secretary of Health and Human Servs., 1994 WL 808125 (W.D.N.Y. Nov. 24, 1994) ("The SSA's decision [not to extend for good cause plaintiff's time to appeal] is not reviewable by this Court and plaintiff has raised no colorable constitutional claim which would otherwise confer subject-matter jurisdiction upon this Court").
Moreover, the Appeals Council fully complied with the relevant regulations during the events at issue in this case. See Coleman v. Secretary of Health and Human Servs., 1994 WL 808125, at *2 (citingRobertson v. Sullivan, 979 F.2d 623, 625 (8th Cir. 1992) (no constitutional violation where Secretary has complied with applicable regulations); see also Hilmes v. Secretary of Health and Human Servs., 983 F.2d 67 (6th Cir. 1993); Garza v. Chater, 891 F. Supp. 464. The Appeals Council expressly invited plaintiff to explain her failure to submit a timely request for review. She responded by submitting affidavits from her attorney and his firm' s office manager indicating that they did not learn of the ALJ's decision until October 2, 1998 and that she had been hospitalized during portions of the period in question. The Appeals Council then properly exercised its discretion by considering her submissions, as evidenced by its written decision, but ultimately rejecting her application for an extension of her time to file a request for review. Therefore, plaintiff was not deprived of her due process rights under the Fifth Amendment.
Conclusion
Accordingly, for the reasons state above, the Commissioner's motion to dismiss "the complaint for lack of subject matter jurisdiction is granted.IT IS SO ORDERED.