Morris v. Colvin

Filing 19

MEMORANDUM OPINION AND ORDER directing that the decision of the Commissioner is AFFIRMED and this case DISMISSED WITH PREJUDICE, as further set out in order. Signed by Honorable Judge Gray M. Borden on 2/14/17. Also mailed to Chief Judge SSA and SSA Office of Hearings and Appeals.(djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
TIMOTHY SCOT MORRIS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
Defendant.

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CASE NO.: 1:15-cv-495-GMB

MEMORANDUM OPINION AND ORDER
This is an appeal from a final decision of the Commissioner of Social Security (the
“Commissioner”) denying Plaintiff Timothy Scot Morris’ applications for benefits. The
case is ripe for review pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). The parties have
consented to the entry of a final judgment by the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. § 636(b) and Rule 73.1 of the Local Rules for the United States
District Court for the Middle District of Alabama. Docs. 14 & 15. Based upon a review of
the parties’ briefs, the relevant authority, and the record as a whole, the court finds that, for
the reasons that follow, the Commissioner’s decision is due to be AFFIRMED.
I. BACKGROUND
On November 15, 2011, Morris filed an application for a period of disability,

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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Carolyn W. Colvin, Acting
Commissioner of Social Security, as the defendant in this lawsuit. No further action needs to be taken to
continue this lawsuit pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). The Clerk
of Court is DIRECTED to take the appropriate steps to reflect this change on the docket sheet.

disability insurance benefits, and supplemental security income benefits, alleging a
disability onset date of August 28, 2009. Docs. 18-2 & 18-3. Morris’ claims were denied
at the initial administrative level. Doc. 18-4.

Morris then requested review by an

Administrative Law Judge (“ALJ”), and on August 12, 2013, he appeared, along with a
non-attorney representative,2 and testified at a hearing before the ALJ.3 Doc. 18-2.
On August 26, 2013, the ALJ denied Morris’ claims. Doc. 18-2. The cover letter
attached to the ALJ’s decision, entitled “Notice of Decision,” is dated and addressed to
Morris and his representative. Doc. 18-2. The Notice of Decision advised Morris of his
appeal rights, explaining:
If you disagree with my decision, you may file an appeal with the Appeals
Council.
***
To file an appeal, you or your representative must ask in writing that the
Appeals Council review my decision. You may use our Request for Review
form (HA-520) or write a letter.
***
You must file your written appeal within 60 days of the date you get this
notice. The 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 Appeals Council will dismiss a late request unless you show you had a
good reason for not filing it on time.
Doc. 18-2. Based on the above, Morris’ deadline to file a request for review with the

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Morris retained the services of Rose Hallford, a non-attorney representative, on May 28, 2013. Doc. 18-4.
Morris had also appeared at a May 17, 2013 hearing before the same ALJ, but since Morris was
unrepresented at that time, the hearing was continued until August 12, 2013 so that Morris could secure
representation and could also submit updated medical evidence to the ALJ. Doc. 18-2.
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Appeals Council was October 30, 2013 (i.e., 65 days after the ALJ issued his August 26,
2013 decision).
The record indicates that, on December 24, 2014, Morris’ representative faxed to
the Appeals Council a “Request for Review of Hearing Decision/Order” form along with
a separate letter requesting Appeals Council review of the ALJ’s August 26, 2013 decision.
Doc. 18-2. The form and the letter are addressed to the Appeals Council’s office in Falls
Church, Virginia,4 and both are dated September 3, 2013. Doc. 18-2. Notably, while the
form and the letter submitted with Morris’ December 24, 2014 facsimile are both dated
September 3, 2013, there is no other evidence or documentation in the record
demonstrating that either of those documents was actually filed with the Appeals Council
on September 3, 2013, or at any other time before Morris’ October 30, 2013 deadline
expired.
On January 20, 2015, the Appeals Council sent Morris and his representative written
notification that his request for review was untimely. Doc. 18-2. In that letter, the Appeals
Council explained that Morris’ deadline to request review was October 30, 2013, that the
Appeals Council’s records show that his request was filed on December 24, 2014, and that
there “is no statement or other information about why you did not file the appeal on time.”
Doc. 18-2. The Appeals Council concluded its letter by requesting that Morris submit “a
statement showing the reason(s) why you did not file the request for review within 60

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The Notice of Decision accompanying the ALJ’s August 26, 2013 decision instructed Morris to send his
request for review to the Appeals Council’s office at 5107 Leesburg Pike, Falls Church, Virginia. Doc.
18-2.

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days,” along with “any evidence that supports your explanation.” Doc. 18-2.
The record shows that the Appeals Council sent Morris and his representative a
second letter on February 26, 2015. Doc. 18-2. In that letter, the Appeals Council
acknowledged that it “received [Morris’] response to our letter dated January 20, 2015
requesting good cause for late filing.” Doc. 18-2. However, the record before the court
does not contain a copy of Morris’ response to the Appeals Council’s January 20, 2015
letter. Nonetheless, based upon the Appeals Council’s February 26, 2015 letter, it appears
that Morris responded to the January 20, 2015 letter by claiming that he timely submitted
his request for review on September 3, 2013 and that his December 24, 2014 fax was a
“resubmission” that “included evidence of timely submission.” Doc. 18-2. The Appeals
Council’s February 26, 2015 letter explained, however, that after reviewing Morris’
December 24, 2014 submission, it could not find a record of the evidence he claimed to
have submitted. Doc. 18-2. The Appeals Council further noted that Morris’ December 24,
2014 submission “appears to be missing a page (page 3 of 3) and that the missing page
may contain the evidence of timely submission you refer to in your recent response.” Doc.
18-2. The Appeals Council invited Morris to resubmit any evidence of his September 3,
2013 submission within 30 days. Doc. 18-2.
Morris did not respond to the Appeals Council’s February 26, 2015 letter. As a
result, on May 15, 2015, the Appeals Council entered an order dismissing Morris’ request
for review, concluding there was “no evidence that the claimant filed the request for review
on time.” Doc. 18-2.
Morris filed a lawsuit in this court on July 10, 2015. Doc. 1.
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II. DISCUSSION
At first blush, it appears that Morris is challenging only the merits of the ALJ’s
finding that he is not disabled within the meaning of the Social Security Act. Doc. 1. In
fact, the only issues presented for review in Morris’ brief are related to the merits of the
ALJ’s disability determination.5 Doc. 16. However, as the Commissioner’s brief points
out, and correctly so, the merits of the ALJ’s disability decision are not at issue here—in
substance the only issue before this court is whether the Appeals Council abused its
discretion when it dismissed Morris’ request for review as untimely. For the reasons that
follow, the court finds that the Appeals Council did not abuse its discretion in dismissing
Morris’ request for review as untimely, and therefore the decision of the Commissioner is
due to be affirmed.
The Eleventh Circuit is the only circuit in which district courts have jurisdiction,
pursuant to 42 U.S.C. § 405(g), to review an Appeals Council’s decision dismissing a
request for review of an ALJ’s decision as a final decision of the Commissioner. See
Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983); Waters v. Massanari, 184
F. Supp. 2d 1333, 1339 (N.D. Ga. 2001) (“The Eleventh Circuit is the only federal circuit
which grants judicial review of the Appeals Council’s dismissal of an untimely request for
review. . . . [T]he other circuit courts of appeal have expressly or implicitly held that when
the Appeals Council dismisses a request for review, as opposed to denying the request for
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The issues presented for review in Morris’ brief are (1) whether the ALJ’s residual functional capacity
failed to comply with SSR-96-8p because the ALJ failed to include the required “function-by-function”
assessment; (2) whether the ALJ failed to analyze properly whether Morris’ indigency was a justifiable
excuse for failing to follow treatment; and (3) whether the ALJ’s finding that Morris can perform a full
range of light work is unsupported by substantial evidence. Doc. 16.

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review, there is no right to judicial consideration of the dismissal, because there is no ‘final
decision’ of the Commissioner.”) (citing Stone v. Heckler, 778 F.2d 645, 647-48 (11th Cir.
1985); Harper v. Bowen, 813 F.2d 737, 740-43 (5th Cir. 1987)). However, in reviewing
the Appeals Council’s decision, the district court “is limited to considering whether the
Appeals Council’s decision that a claimant did not demonstrate good cause for an untimely
request for review is arbitrary and capricious, i.e., whether the Appeals Council abused its
discretion.” Drake v. Comm’r of Soc. Sec., 2016 WL 3763225, at *1 (M.D. Fla. June 17,
2016); see also Waters, 184 F. Supp. 2d at 1341 (“All that this Court may consider . . . is
whether the Appeals Council abused its discretion in dismissing Plaintiff’s tardy request
for review.”); Maxwell v. Comm’r of Soc. Sec., 2013 WL 298267, at *2 (M.D. Fla. Jan. 25,
2013); Walker v. Comm’r of Soc. Sec., 2013 WL 3833199, at *3 (M.D. Fla. July 23, 2013).
Morris does not dispute that the Appeals Council dismissed his request for review as
untimely, or that this court is limited to reviewing only whether the Appeals Council abused
its discretion in making that decision.6 “Thus, although [Morris] attempts to challenge the
substance of the ALJ’s unfavorable decision . . . the only issue before the Court is whether
the Appeals Council’s refusal to extend time was unreasonable or arbitrary.” Drake, 2016
WL 3763225, at *1.
The Social Security regulations set forth the 60-day period during which a claimant
must request Appeals Council review of an ALJ decision. See 20 C.F.R. § 416.1468. The

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While Morris admits that his request for review by the Appeals Council was dismissed as untimely, he
wholly ignores the case law in this Circuit permitting limited judicial review of such a dismissal. Rather
than directly address the timeliness of his appeal request, Morris spends the entirety of his brief arguing the
merits of the ALJ’s disability determination—an issue that is not before the court for review. Doc. 16.

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Appeals Council may deny a request for review, or it may decide to review a case and to
make a decision. The Appeals Council’s decision, or the decision of the ALJ if the request
for review is denied, is binding unless a party files an action in district court. See 20 C.F.R.
§ 416.1481. Alternatively, the regulations provide that the Appeals Council may dismiss
a request for review if the claimant does not file the request within the 60-day timeframe
and the time for filing has not been extended. See 20 C.F.R. § 416.1471.
A claimant may request review of an ALJ’s decision from the Appeals Council after
the 60-day deadline has passed only upon a showing of good cause. See 20 C.F.R.
§ 416.1411. The record does not reflect that Morris demonstrated good cause for failing
to file a timely request for review with the Appeals Council. Morris’ appeal deadline was
October 30, 2013. On December 24, 2014, more than a year after his appeal deadline had
passed, Morris’ representative faxed the Appeals Council a submission that consisted of
(1) a letter requesting review of the ALJ’s August 26, 2013 decision; (2) a Request for
Review of Hearing Decision/Order form, also requesting review of the ALJ’s decision; and
(3) what appears to be a missing third page.7 While both the letter and the form were dated
September 3, 2013, the fax itself contained no evidence tending to prove that either the
letter or the form was actually filed with the Appeals Council on September 3, 2013 or any
other time before Morris’ October 30, 2013 deadline expired. See Doc. 18-2.
After receiving Morris’ December 24, 2014 facsimile submission, the Appeals

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Although the facsimile transmission notes at the top of Morris’ December 24, 2014 fax indicate that the
fax consisted of three pages, the third page of the fax was not contained in the record before the Appeals
Council, and it is not contained in the record currently before this court. Doc. 18-2.

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Council sent Morris and his representative a letter dated January 20, 2015, which explained
that his request for review was untimely and that he had 60 days to send the Appeals
Council a statement showing why he did not file his request on time, along with any
evidence to support his explanation. Doc. 18-2. The record does not contain Morris’
response to the Appeals Council’s January 20, 2015 letter. However, a review of the
Appeals Council’s February 26, 2015 letter to Morris and his representative shows that
Morris did respond to the Appeals Council’s January 20, 2015 letter with a reaffirmation
that he timely requested appellate review on September 3, 2013 and that he had already
submitted evidence of his timely request to the Appeals Council via his fax on December
24, 2014. Doc. 18-2. The Appeals Council explained, however, in its February 26, 2015
letter that it could not find the evidence of timely submission Morris claimed to have
submitted with his December 24, 2014 fax and that the missing third page of this fax could
contain this evidence. Doc. 18-2. As a result, the Appeals Council gave Morris an
additional thirty days to submit to them any evidence he had demonstrating that he filed
his request for review on September 3, 2013. Doc. 18-2. Morris never responded to this
request.
Based upon the foregoing, the court finds that Morris did not demonstrate good
cause for failing to timely request Appeals Council review of the ALJ’s September 26,
2013 decision. More to the point in light of the court’s standard of review, the court is
unable to conclude that the Appeals Council acted arbitrarily or capriciously, or otherwise
abused its discretion, in dismissing Morris’ untimely request for review. The record
contains no evidence demonstrating that Morris actually filed or submitted a letter or
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request for review form to the Appeals Council on or before his October 30, 2013 appeal
deadline. The record before the court does not contain an affidavit, certified mail receipt,
or facsimile transmission confirmation demonstrating that Morris timely filed a request for
review with the Appeals Council by October 30, 3013. Morris also “demonstrated no
impediment or confusion as to why [he] could not timely file a request for review.” Waters,
184 F. Supp. 2d at 1341. To the contrary, the Appeals Council gave Morris multiple
opportunities to provide it with evidence of timely filing, and the record before the court
demonstrates that Morris failed to comply. Accordingly, the court finds that the Appeals
Council’s finding that there was no good cause to extend Morris’ time for filing an appeal
request was not an abuse of discretion, and the final decision of the Commissioner is due
to be affirmed. See Maxwell, 2013 WL 298267, at *2-3 (finding that claimant failed to
present sufficient evidence demonstrating that Appeals Council’s decision to dismiss his
untimely request for review was an abuse of discretion); Walker, 2013 WL 3833199, at *5
(explaining that claimant failed to point the court to any evidence presented to the Appeals
Council, such as an affidavit or certified mail receipt, demonstrating that her request for
review was timely filed; thus, the court could not find that the Appeals Council’s dismissal
of her untimely request for review was an abuse of discretion); Waters, 184 F. Supp. 2d at
1340-42.
III. CONCLUSION
For the reasons stated herein, it is ORDERED that the decision of the Commissioner
is AFFIRMED and this case DISMISSED WITH PREJUDICE.
A final judgment will be entered separately.
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DONE this 14th day of February, 2017.
/s/ Gray M. Borden
UNITED STATES MAGISTRATE JUDGE

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