Raley v. Astrue (CONSENT)

Filing 16

MEMORANDUM OPINION AND ORDER that Defendant's 12 Motion to Dismiss is GRANTED, and that this case is DISMISSED without prejudice. Signed by Honorable Judge Terry F. Moorer on 6/6/2011. (br, )

IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
KAREN RALEY,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,

Defendant.

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MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendant’s Motion to Dismiss Plaintiff’s Complaint
for Failure to Exhaust Her Administrative Remedies (Doc. 12, filed May 9, 2011) and
Plaintiff’s responses (Doc. 14, filed May 16, 2011; Doc. 15, filed May 18, 2011). After
due consideration of the Motion to Dismiss, Plaintiff’s responses, and the applicable law,
the Court finds it is due to be GRANTED.
I. BACKGROUND AND MOTION TO DISMISS
Plaintiff Karen Raley (“Plaintiff” or “Raley”) originally applied for disability
insurance benefits on June 7, 2006, pursuant to Title II of the Social Security Act (“the
Act”), 42 U.S.C. §§ 401, et seq., and for supplemental security income benefits under
Title XVI of the Act, 42 U.S.C. §§ 1381, et seq. The Administrative Law Judge (ALJ)
denied Raley’s application on January 15, 2008, and she appealed that decision to the
Appeals Council which denied review on January 9, 2009. See Raley v. Astrue, Civ. Act.
No. 2:09-cv-154 (M.D. Ala. 2009), Doc. 16, at 4-10. Raley appealed the Commissioner

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of Social Security’s (“Commissioner”) unfavorable decision to this Court on February 26,
2009. Id. at Doc. 1. On April 27, 2010, this Court remanded her case for further
administrative proceedings based on “the Court’s finding that work as either a
receptionist or cashier requires primarily working with one’s fingers, and the
inapplicability of the medical-vocational guidelines in this case the Court remands this
case to the ALJ to fully develop the record to demonstrate the occupations Raley can still
perform do not require her to ‘work with the fingers primarily.’” Id.at Doc. 18, at 9-10.
On May 19, 2010, the Appeals Council remanded the case back to an ALJ for a
rehearing. After the rehearing, the ALJ issued an unfavorable decision on October 25,
2010, to which the Plaintiff requested a review by the Appeals Council on November 4,
2010. The second request for review by the Appeals Council remains pending. See Doc.
15, at 2.
Raley filed this federal suit on February 2, 2011. Doc. 1. Her complaint does not
mention or refer to the filing of the request for Appeals Council review, but Raley stated
that she “has exhausted her administrative remedies” in her complaint. Doc. 1, at 2. The
Commissioner filed his Motion to Dismiss Plaintiff’s Complaint for Failure to Exhaust
her Administrative Remedies on May 9, 2011. Doc. 12. In the motion, the Commissioner
argues that by not receiving a “final decision” from the Appeals Counsel that the Plaintiff
did not exhaust her administrative remedies before filing the present suit which deprives
the Court of jurisdiction. Further, the Commissioner argues Raley has not alleged or
qualified for any permissible waiver of the exhaustion requirement. Doc. 12. at 2-7.
Raley filed her first response to government’s motion on May 16, 2011. Doc. 14. The
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initial response is essentially a timeline of the administrative and judicial process of her
case since the original filing.

However, the final paragraph contains substantive

arguments. Doc. 14, at 3-4. The second response is entitled Answer and essentially
contains the same, but expanded, arguments in Raley’s initial response. Doc. 15.
Raley’s responses to the motion to dismiss indicate that her appeal to this Court
was filed in an attempt to comply with the language in the decision by the ALJ dated
October 25, 2010. Doc. 15. Raley notes that she did not file for any extensions as she is
trying to expedite this process. Id. at 1. Raley was allegedly given a time period in
which to expect a final decision and states “[t]his will be about (Dec. 19, 2010).” Id.
However, Raley does not dispute that the Appeals Council has not yet rendered an
opinion or refused to hear the case. Id. Rather she argues it is unnecessarily “trying to
stretch the time frame.” Doc. 14. at 3. Raley also argues she does not have to wait on
another council ruling. Id. at 4. While the Court recognizes that the administrative
process can take an extended period of time the Court cannot bypass a necessary step in
the process.
II. DISCUSSION
It is well settled that, “[a]bsent a waiver, sovereign immunity shields the Federal
Government and its agencies from suit.” Federal Deposit Insurance Corp. v. Meyer, 510
U.S. 471, 475 (1994).

42 U.S.C. § 405(g) allows this Court to review adverse

administrative decisions by the Commissioner. It 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
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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) (emphasis added). The succeeding statutory provision, § 405(h),
provides “[n]o findings of fact or decision of the Commissioner of Social Security shall
be reviewed by any person, tribunal, or governmental agency except as herein provided.”
This provision reinforces Congressional intent that § 405(g) is the “exclusive grant of
jurisdiction with respect to federal court claims challenging the Secretary’s administrative
actions on disability claims.” Stone v. Heckler, 778 F.2d 645, 647 n.4 (11th Cir. 1985).
Finally, “the United States, as sovereign, ‘is immune from suit, save as it consents to be
sued … and the terms of its consent to be sued in any court define that court’s jurisdiction
to entertain the suit.’” United States v. Dalm, 494 U.S. 596, 608, 110 S.Ct. 1361, 1368
(1990) (quoting United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, (1976).
Although the Act does not define “final decision,” the Commissioner has
exercised his administrative authority to give meaning to the term through regulations, as
authorized by the Act. See 42 U.S.C. § 405(a) (“The Commissioner of Social Security
shall have full power and authority to make rules and regulations . . . which are necessary
or appropriate.”). Social Security regulations provide that, if the Appeals Council grants
review of a claim, then the decision by the Council becomes the Commissioner’s final
decision. If, on the other hand, the Council denies the request for review, the ALJ’s
adverse decision becomes the final decision. See 20 C.F.R. §§ 404.900(a)(4-5), 404.955,
404.981, 422.210(a); see also Waters v. Massanari, 184 F.Supp.2d 1333, 1337-38 (N.D.
Ga. 2001) (defining the decision by Council or denial by Council is the final decision).
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Raley’s responses to the motion indicate that she requested a second review from
the Appeals Council after the ALJ’s rehearing and adverse decision of November 4,
2010. Doc. 14, at 2. Regulations at 20 C.F.R. § 404.981 give the Appeals Council
discretion to “deny a party’s request for review or . . . decide to review a case and make a
decision.” Further, this provision specifies that the “Appeals Council’s decision, or the
decision of the administrative law judge if the request for review is denied, is binding
unless you or another party file an action in Federal district court” within 60 days of
receiving notice of the Appeals Council’s action. As of May 9, 2011, and, to the best of
this Court’s knowledge, the date of this opinion the Appeals Council still has not acted on
the request for review. As Raley’s November 4, 2010 request to the Appeals Council
remains pending, and pursuant to the regulatory scheme, there is not yet a final decision
by the Commissioner.
Raley’s response argues her Complaint was filed pursuant to her belief that the
time period in which to file had already elapsed or was about to elapse. Doc. 14, at 3-4.
In Raley v. Astrue, Civ. Act No. 2:09-cv-154 (M.D. Ala. 2009), the Notice of DecisionUnfavorable was issued by the ALJ on January 15, 2008, and indicated that Raley had 60
days from the date that she received the notification to file with the Appeals Council. Id.,
Doc. 16, at 10. On January 9, 2009, Raley then received Notice of Appeals Council
Action wherein Raley was informed that she had another 60 days in which to file an
appeal to the Federal District Court. Id., Doc. 16, at 4. The Notice of Appeals Council
Action also stated that “[t]his means that the Administrative Law Judge’s decision is the

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final decision of the Commissioner of Social Security in your case.” Id. (emphasis
added).
Raley’s complaint states that she had exhausted all administrative remedies. Doc.
1, at 2. Raley states “[n]owhere in my paperwork did it say it was talking about the
appeal council’s answer and not the decision of the ALJ.” Doc. 15, at 1. However,
regardless of any confusion, Raley cannot show administrative exhaustion by mere
passage of time. The regulations dictate when a “final decision” is rendered for purposes
of judicial review, and the alternative events which trigger finality, i.e., Appeals Council
decision or rejection, have not occurred.
Raley now acknowledges the underlying action remains pending before the
Appeals Council, that they informed her that they would notify her of their decision and
that “[she] never received that letter either.”

Doc. 15, at 1.

Raley’s request for

administrative review precludes judicial review until the Appeals Council exercises its
options to either grant and complete a review of the ALJ decision, or to let the ALJ
decision stand as the Commissioner’s “final decision.” Therefore, this language did not
authorize judicial review of the ALJ decision of October 25, 2010.
The Commissioner notes that it is possible for a waiver of the requirement to
exhaust all administrative remedies. Doc. 12. at 7-8. Citing to Heckler v. Ringer, the
Commissioner states that in cases wherein the plaintiff raises a challenge wholly
collateral to the claim for benefits and makes a colorable showing that the injury could
not be remedied by the retroactive payment of benefits, the plaintiff may qualify for a
waiver from the requirement to exhaust all administrative remedies. Doc. 12. at 7.
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(citing Heckler v. Ringer, 466 U.S. 602, 618 (1984)). Raley does not address the issue of
waiver nor does it appear that she would qualify based on the information presented by
both parties in that the circumstances here do not meet the requirements.
CONCLUSION
Having found that there is no “final decision” of the Commissioner appropriate for
judicial review pursuant to 42 U.S.C. § 405(g), this Court lacks jurisdiction to review the
Plaintiff’s claims for benefits.

Accordingly, it is the ORDER, JUDGMENT, and

DECREE of this Court that Defendant’s Motion to Dismiss (Doc. 12) is GRANTED, and
that this case is DISMISSED without prejudice.
DONE this 6th day of June, 2011.

/s/ Terry F. Moorer
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

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