99-C V-6377 (JG)
June 9, 2000.
BARBARA PERKINS, Plaintiff Pro Se.,
LORETTA E. LYNCH, By: Michelle Perez, Attorney for Defendant
MEMORANDUM AND ORDER
Plaintiff Barbara Perkins commenced this action to seek review of her claim for disability insurance benefits. Defendant Kenneth Apfel, Commissioner of the Social Security Administration ("SSA"), now moves to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1). For the following reasons, the motion is granted.
The plaintiff did not file any written opposition to the defendant's motion to dismiss. The following recitation of facts is based on the defendant's submission as well as the plaintiffs statements at oral argument on June 2, 2000.
On January 22, 1998, an Administrative Law Judge ("ALJ") issued a decision denying the plaintiffs claim for Supplemental Security Income ("SSI") benefits. The notice of decision, which was mailed to the plaintiff at her current address, stated that if she did not agree with the decision she must file a request for review within 60 days from the date of receipt. It further stated that "[t]he Appeals Council assumes you got the notice 5 days after the date shown above unless you show you did not get it within the 5-day period. The Council will dismiss a late request unless you show you have a good reason for not filing it on time." (Waxman Decl., Ex. 1.) Thus, any request for review should have been filed by March 28, 1998, 65 days after the date of issuance of the AU's decision.
The plaintiff requested the Appeals Counsel to review the AU's decision on April 15, 1998. (See Waxman Decl., Ex. 2.) The notes of the SSA officer reflect that, at the time the plaintiff filed for review, she indicated that she did not file on time because she thought she needed to secure additional medical evidence and that she could not get an appointment with her doctor until the following month. (See id.) At oral argument, the plaintiff explained that she was not able to read the AU's decision and sought assistance at the SSI office. There, an unidentified person allegedly told her that she needed a doctor's letter regarding her liver condition, but did not inform her of the 60-day limitations period. According to the plaintiff, she only realized that she needed to file her appeal within 60 days after the time period had already expired. There is no evidence, however, that the plaintiff ever informed the Appeals Council of her inability to read the AU's decision or the advice of the SSI officer.
The Appeals Council denied the plaintiffs request for an extension of time on September 14, 1999. (See Waxman Decl., Ex. 3.) Specifically, the court considered her explanation that she thought she needed additional medical evidence, but found "no basis to extend the time limits for requesting review." (Id.) Thereafter, on October 15, 1999, the plaintiff filed the instant complaint, seeking to "modify the decision of the [Commissioner] to grant maximum monthly insurance and/or Supplemental Security Income benefits to the plaintiff, retroactive to the date of initial disability." (Compl. par; 3.) The defendant now moves to dismiss the complaint for lack of jurisdiction.
Under § 405(g) of Title 42, United States Code, a claimant may seek judicial review of any "final decision" of the Social Security Commissioner. 42 U.S.C. § 405(g). This is the exclusive means for judicial review of a Commissioner's final decision. To obtain a final decision, the claimant must follow the administrative procedures set forth in the regulations promulgated under 42 U.S.C. § 405(a), including the procedures for obtaining Appeals Council review of an AU's adverse determination.
These subsections are made applicable to SSI by 42 U.S.C. § 1383 (c)(3).
Pursuant to these regulations, a written request for Appeals Council review must be filed "[w]ithin 60 days after the date [the claimant] receive[s] notice of the hearing decision or dismissal." 20 C.F.R. § 416.1468(a). As it is presumed that the notice is received five days from the date of decision, "a claimant in actuality has 65 days from the date of the AU's decision in which to file a request for review."Dietsch v. Schweiker, 700 F.2d 865, 867 (2d Cir. 1983). If the claimant's request is untimely, it may be dismissed. See 20 C.F.R. § 416.1471 ("The Appeals Council will dismiss your request for review if you did not file your request within the stated period of time and the time for filing has not been extended."). Under those circumstances, a district court does not have subject matter jurisdiction to review the adverse AU decision because the Appeals Council's dismissal is not a "final decision" within the meaning of 42 U.S.C. § 405(g). Dietsch, 700 F.2d at 867; see also Tudor on Behalf of Sanders v. Shalala, 863 F. Supp. 119, 124 (E.D.N Y 1994) ("[I]t is well-established that dismissal by the Secretary of an untimely request for review or an untimely request for an extension of time is not reviewable by the district court, because such a dismissal is not a "final decision' within the meaning of section 405(g)."). "In such administrative-law parlance, such a claimant may not obtain judicial review because he has failed to exhaust administrative remedies." Sims v. Apfel, ___ U.S. ___, No. 9809537, 2000 WL 712806, at *3 (June 5, 2000).
Here, the plaintiff received a notice that if she wished to appeal the AU's decision, she had to do so within 60 days from the date she received notice of the decision, or within 65 days from the date of the decision. (See Waxman Decl., Ex. 1.) Thus, to comply with this requirement, the plaintiff would have had to file her request for review by March 28, 1998. It is undisputed that the plaintiff filed her request out of time, on April 15, 1998, (See Waxman Decl., Ex. 2), that the Appeals Council considered her grounds on which to extend the limitations period, i.e. her assertion that she thought she needed additional medical evidence, and that the court found no good cause for an extension and dismissed the request for review pursuant to 20 C.F.R. § 416.1471, (see Waxman Decl., Ex. 3). Although the plaintiff claims that she could not read the notice and that an unidentified person at the SSI office told her that she needed an additional doctor's letter for her appeal, but did not tell of the 60-day limitations period, these issues were neither raised before nor considered by the Appeals Council. Further, the plaintiff has offered no explanation as to why she failed to do so. These grounds do not provide a basis on which to confer jurisdiction to this Court. As the plaintiff did not obtain a final decision within the meaning of 42 U.S.C. § 405(g), I lack subject matter jurisdiction to consider the appeal.
For the foregoing reasons, the defendant's motion to dismiss for lack of subject matter jurisdiction is granted.