Carlile v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 10/3/2018. (PSM)

FILED
2018 Oct-03 PM 04:06
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHWESTERN DIVISION
PAUL D. CARLILE,
Plaintiff,
vs.
SOCIAL SECURITY
ADMINISTRATION,
COMMISSIONER,
Defendant.

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3:10-cv-2778-LSC

MEMORANDUM OF OPINION
I.

Introduction
Before the Court is the “Memorandum in Support of the Appeals Council’s

Dismissal,” filed by Defendant, the Commissioner of the Social Security
Administration (“Commissioner”). (Doc. 11.) For the following reasons, this
action is due to be dismissed and judgment entered in favor of the Commissioner.
II.

Background
On May 2, 2008, Plaintiff protectively filed an application for a period of

disability, disability insurance benefits, and supplemental security income pursuant

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to the Social Security Act. 1 (Tr. at 4). After an initial denial and a hearing before an
Administrative Law Judge (“ALJ”), on December 3, 2009, the ALJ issued a
decision finding Plaintiff not disabled within the meaning of the Social Security
Act. (Tr. at 1-10). The ALJ sent a copy of the decision to both Plaintiff and his
attorney, notifying Plaintiff of his right to seek Appeals Council review within 60
days of his receipt of the decision if he disagreed with the decision. (Tr. at 1-3). The
notice stated that “[t]he 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 Council will dismiss a late request unless you show you had a good reason for
not filing it on time.” (Tr. at 1).
Plaintiff, though counsel, submitted a request for review of the ALJ’s
decision to the social security office in Florence, Alabama, sometime after February
8, 2010. (Tr. at 27). Plaintiff’s counsel’s cover letter to the request for review is
dated February 12, 2010, but there is no evidence that the field office received it on
that date. (Tr. at 11, 27). The actual request for review has a date stamp as being
transmitted by facsimile from Plaintiff’s counsel’s office on February 18, 2010. (Tr.
at 15).
1

The Social Security Administration administers a national plan of contributory social
insurance for retired or disabled persons and their survivors and dependents under the Social
Security Act, 42 U.S.C. § 1305.
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On August 12, 2010, the Appeals Council dismissed Plaintiff’s request for
review. (Tr. at 24-28). The Appeals Council explained that although Plaintiff’s
counsel stated that he did not receive the ALJ’s decision until December 14, 2009,
there was no evidence that Plaintiff did not timely receive his notice of the ALJ’s
decision. (Tr. at 27). The Appeals Council further noted that while Plaintiff’s
counsel stated, based on his receipt date, that the request for review was due
February 12, 2010, there was no evidence that the request was received by the
agency by that date. (Tr. at 27). The date it was received by the social security
office was covered, while the facsimile date stamp on the request indicates the
request was sent February 18, 2010. (Tr. at 27). The Appeals Council concluded
that Plaintiff did not set forth any reason that would warrant finding good cause for
a late filing of his request for review and dismissed the request. (Tr. at 27). The
Appeals Council advised Plaintiff of his right to seek judicial review of the dismissal
pursuant to Acquiescence Ruling (“AR”) 99-4(11), 1999 WL 1137369, and
Bloodsworth v. Heckler, 703 F.2d 1233 (11th Cir. 1983). (Tr. at 24-25).
On October 14, 2010, Plaintiff filed a Complaint in this Court, seeking
judicial review pursuant to AR 99-4(11) and Bloodsworth. (Doc. 1.) On January 21,
2011, the Commissioner moved to remand the case back to the Social Security
Administration pursuant to sentence six of 42 U.S.C. § 405(g), because further
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proceedings were needed to produce Plaintiff’s complete administrative record
before the civil lawsuit could proceed. (Doc. 5.) The Court granted the motion and
dismissed this action on January 25, 2011. (Doc. 6.) Nearly eight years later, the
Commissioner filed its Answer in this case, listing as an Affirmative Defense that
Plaintiff failed to timely exhaust his administrative remedies. (Doc. 8.) The Clerk of
Court reopened the case and entered a briefing schedule to the parties on
December 15, 2017. (Doc. 10.) Plaintiff has not filed a brief in support of his
Complaint. The Commissioner’s brief in support of the Appeals Council’s
dismissal is thus presently before the Court, and this action is ripe for disposition.
III.

Standard of Review
At issue is whether the Appeals Council abused its discretion in dismissing

Plaintiff’s request for review of the ALJ’s hearing decision denying Plaintiff
disability benefits. Congress has given courts “power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without remanding the
cause for rehearing.” 42 U.S.C. § 405(g). In the Eleventh Circuit, an Appeals
Council’s dismissal of a request for review due to untimeliness constitutes a “final
decision” subject to judicial review. Bloodsworth v. Heckler, 703 F.2d 1233, 1239
(11th Cir. 1983).
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When reviewing Appeals Council dismissals, the Court may only consider
whether the Appeals Council’s refusal to grant an extension of time was an abuse of
discretion. See Waters v. Massanari, 184 F. Supp. 2d 1333, 1341 (N.D. Ga. 2001)
(“All that this Court may consider pursuant to [Bloodsworth] is whether the
Appeals Council abused its discretion in dismissing Plaintiff’s tardy request for
review”). No abuse of discretion exists unless the Appeals Council has acted
“arbitrarily or unreasonably,” such as by failing to consider relevant factors or by
committing a clear error of judgment. Langford v. Fleming, 276 F.2d 215, 218 (5th
Cir. 1960); see also Atlanta Gas Light Co. v. F.E.R.C., 140 F.3d 1392, 1397 (11th Cir.
1998).
III.

Discussion
The Appeals Council properly exercised its discretion in dismissing

Plaintiff’s untimely request for review of the ALJ’s decision. As an initial matter,
because Plaintiff’s request for review was dismissed, this Court does not have
jurisdiction to review the merits of Plaintiff’s claim for disability benefits. Waters,
184 F. Supp. 2d at 1341. To hold otherwise “would essentially read out of the
administrative scheme the requirement that a claimant seek review at the Appeals
Council level.” See id. Thus, the only issue before this Court is whether the

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Appeals Council abused its discretion in dismissing Plaintiff’s untimely request for
review. See id.
A claimant who desires Appeals Council review of an ALJ decision has 60
days after the date that he receives notice of the decision to file a written request
for review. See 20 C.F.R. §§ 404.968(a)(1), 416.1468(a)(1). The date of receipt is
presumed to be 5 days after the date on the notice unless the claimant shows that
he did not receive it within the 5-day period. See 20 C.F.R. §§ 404.901, 416.1401.
The Appeals Council will dismiss a request for review if the claimant did not file
the request within the stated period of time and the time for filing has not been
extended. See 20 C.F.R. §§ 404.971, 416.1471.
A claimant may ask that the time for filing a request for review be extended.
See 20 C.F.R. §§ 404.968(b), 416.1468(b). The request for an extension of time
must be in writing, filed with the Appeals Council, and it must give the reasons why
the request for review was not filed within the stated time period. Id. If the claimant
shows that he had good cause for missing the deadline, the time period will be
extended. Id. To determine whether good cause exists, the Appeals Council
considers: (1) what circumstances kept the claimant from making the request on
time; (2) whether the agency’s action misled the claimant; (3) whether the
claimant did not understand the requirements of the Act resulting from
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amendments to the Act, other legislation, or court decisions; and (4) whether the
claimant had any physical, mental, educational, or linguistic limitations (including
any lack of facility with the English language) which prevented the claimant from
filing a timely request or from understanding or knowing about the need to file a
timely request for review. 20 C.F.R. §§ 404.911(a), 416.1411(a).
Here, the ALJ’s decision was dated December 3, 2009, giving Plaintiff until
February 8, 2010, to submit his request for review by the Appeals Council.2 (Tr. at
1). The fact that Plaintiff did not file a request for review by this time is not
disputed. Rather, sometime around February 12, 2010, Plaintiff’s counsel
presented to the agency that he did not receive notice of the ALJ’s decision until
December 14, 2009, and thus, asserted that he had good cause for not filing a
request for review earlier. (Tr. at 11). As the Appeals Council recognized, however,
Plaintiff’s counsel made no averments about when Plaintiff received the notice of
decision, which receipt would have been the trigger for Plaintiff’s time to file the
request for review. (Tr. at 27). See 20 C.F.R. §§ 404.968(a)(1), 416.1468(a)(1).
Moreover, there is no evidence that Plaintiff’s counsel even met the deadline for
submitting the request for review that he stated applied, February 12, 2010, as the
actual request shows it was faxed from Plaintiff’s counsel’s office on February 18,
2

Sixty-five days after December 3, 2009, is Saturday, February 6, 2010. Plaintiff
presumably would have been given until the next business day to file his request.
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2010. (Tr. at 15, 27). Plaintiff’s counsel thus did not raise any matter that would
tend to show good cause for the untimely filing, and the Appeals Council
reasonably declined to extend the time for filing and dismissed the request. See 20
C.F.R. §§ 404.911, 416.1411; Waters, 184 F. Supp. 2d at 1341 (noting claimant did
not demonstrate an impediment or confusion as to why she could not timely file a
request for review and affirming the Appeals Council’s dismissal).
Accordingly, the Appeals Council did not abuse its discretion in finding that
Plaintiff failed to meet the deadline for requesting review and that there was no
good cause to extend the time for filing, and dismissing Plaintiff’s request for
review.
IV.

Conclusion
In light of the foregoing, this case is due to be dismissed and judgment

entered in favor of the Commissioner. A separate closing order will be entered.
DONE and ORDERED on October 3, 2018.

_____________________________
L. Scott Coogler
United States District Judge
160704

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