Didato v. Commissioner of Social Security

Filing 20

ORDER granting 16 Motion to Dismiss for Lack of Jurisdiction. See attached. Signed by Judge Donna F. Martinez on 10/4/2019. (Constantine, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MIGUEL ROBERT DIDATO,
Plaintiff,
v.
ANDREW M. SAUL, COMMISSIONER
OF SOCIAL SECURITY,
Defendant.

:
:
:
:
:
:
:
:
:
:

CASE NO.

3:18cv341(DFM)

RULING ON MOTION TO DISMISS
Pending before the court in this social security appeal is
the defendant's motion to dismiss. (Doc. #16.) The motion is
granted.1
I.

Procedural Background
In February 2018, the plaintiff, who is self-represented,

commenced this action seeking review of the final determination of
the

Commissioner

benefits.

denying

the

plaintiff's

application

for

SSA

Attached to the complaint was a notice from the Appeals

Council that it had "dismissed [his] request for review" and that
"dismissal of a request for review is final and not subject to
review."

(Doc. #1 at 4.)

The defendant thereafter moved to

dismiss the plaintiff's complaint because the plaintiff failed to
exhaust administrative remedies.

1This

(Doc. #16.)

is not a recommended ruling.
the jurisdiction of a magistrate judge.

The plaintiff did

The parties consented to
(Doc. #10.)

not file any response to the defendant's motion.

The court, in an

abundance of caution, issued an order extending, sua sponte, the
deadline

by

which

the

plaintiff

could

file

a

response.

In

addition, the court notified the plaintiff that "[i]f no opposition
is filed, the court may grant the defendant's motion." (Doc. #18.)
Still the plaintiff did not file a response to the defendant's
motion.
II.

Facts
On March 1, 2016, an Administrative Law Judge ("ALJ") issued

a

Notice

of

applications.

Decision

("Notice")

(Doc. #16-5.)

denying

the

plaintiff's

The Notice advised the plaintiff of

his right to appeal the ALJ's decision by filing a request for
Appeals Council review within 60 days of receipt of the Notice,
that is, by no later than May 5, 2016. 20 C.F.R. § 404.968(a)(1).
It warned, however, that untimely requests for review would be
dismissed unless plaintiff could show a "good reason for not filing
it on time."

(Doc. #16-5.)

The plaintiff did not file a Request for Review of the ALJ's
decision with the Appeals Council until January 26, 2017.
#16, Prelle Decl. ¶3(d).)

(Doc.

On November 14, 2017, the Appeals

Council sent the plaintiff a letter notifying him that his request
for review was untimely.

The letter explained that the Notice of

the ALJ's decision was dated March 1, 2016 and therefore "the last
day you could file your request for review was May 5, 2016."
2

(Doc.

#16, Prelle Decl. ¶(3)(e); doc. #16-7 at 1.)

The letter further

stated that the plaintiff's request for review did not contain any
"statement or other information about why [the plaintiff] did not
file an appeal on time."

(Doc. #16-7 at 1.)

The SSA advised the

plaintiff to "send us a statement showing the reason(s) why you
did not file the request for review within 60 days."
at 1.)

(Doc. #16-7

On December 4, 2017, the plaintiff submitted a letter.

(Doc. #16-8.)

By order dated December 19, 2017, the Appeals

Council found that the plaintiff had not demonstrated good cause
for extending the deadline.
2.).

(Prelle Decl. ¶(3)(g); doc. #16-9 at

This action followed.

III. Discussion
The defendant argues that the plaintiff's complaint should be
dismissed for failure to exhaust administrative remedies.
Section

405(g)

of

the

Social

Security

Act

"has

been

interpreted to require that, generally speaking, administrative
procedures must be exhausted before judicial review is available."
Dietsch v. Schweiker, 700 F.2d 865, 867 (2d Cir. 1983).

The

procedures that a plaintiff must exhaust include "an initial
determination, a reconsideration of that determination, a hearing
decision by an ALJ, and an Appeals Council review." Gonzalez ex
rel. Guzman v. Sec'y of the Dep't of Health & Human Servs., 360 F.
App'x 240, 245 (2d Cir. 2010) (citing 20 C.F.R. § 416, subpt. N);
see also Escalera v. Comm'r of Soc. Sec., 457 F. App'x 4, 5 (2d
3

Cir. 2011).

"[A] timely request for review by the Appeals Council

is required for exhaustion of administrative remedies."

Rivera v.

Apfel, No. 01 CIV. 0752 (NRB), 2001 WL 699065, at *2 (S.D.N.Y.
June 21, 2001). "Though there are exceptions to the administrative
exhaustion requirement, the failure to timely file a request for
review

is

not

one

of

them."

Rice-McKenzie

v.

Colvin,

No.

3:16CV1448(SRU), 2017 WL 2960507, at *1 (D. Conn. July 11, 2017).
at *2.2.

See also Brandtner v. Dep't of Health & Human Servs.,

150 F.3d 1306, 1307 (10th Cir. 1998) ("Plaintiff did not request
administrative review of the ALJ's decision in a timely manner,
the Appeals Council dismissed his request for review as untimely,
and,

consequently,

review.").

there

is

no

'final

decision'

for

us

to

See Rice-McKenzie, 2017 WL 2960507, at *2 (where

plaintiff brought an action after the Council rejected her request
for review of the ALJ decision as untimely, "[n]either the ALJ's
decision nor the Council's rejection of her untimely request for
review constitutes a 'final decision' under section 405(g). . . .
Accordingly, I lack jurisdiction to review either decision.");
Rivera, 2001 WL 699065, at *2 ("It is well settled in the Second

2Moreover,

the court does not have jurisdiction to review a
decision by the Appeals Council to dismiss an untimely request for
review.
See Dietsch v. Schweiker, 700 F.2d 865, 867 (2d Cir.
1983)("[t]he Appeals Council may dismiss an untimely request for
review, 20 C.F.R. § 404.971, and such a dismissal is not reviewable
by the district court because it is not a 'final decision' within
the meaning of § 405(g).")
4

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). . . . 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.") (citing cases)
Here, it is undisputed that the plaintiff did not request
review of the ALJ's within 60 days.
exhaust

his

jurisdiction.

administrative

remedies

Therefore, he failed to
and

the

court

lacks

See Echeandia v. Berryhill, No. 3:18CV42(JGM), 2018

WL 1951132, at *4 (D. Conn. Apr. 25, 2018)(where plaintiff failed
to exhaust, the court lacks jurisdiction); Muniz v. Astrue, No.
07–CV–1945, 2007 WL 4591259, at *1 (E.D.N.Y. 2007) ("[W]here a
claimant has not received a 'final decision' from the Commissioner,
his claim for benefits is unexhausted and a federal district court
is without subject matter jurisdiction to review it."); Keesing v.
Apfel, 124 F.Supp.2d 134, 135 (N.D.N.Y. 2000) ("The requirements
of 42 U.S.C. §§ 405(g) and (h) are prerequisites for subject matter
jurisdiction, which plaintiff satisfied once he exhausted his
administrative procedures and obtained a final decision after
being denied review from the Appeals Council.").
There are certain circumstances in which a federal court may
excuse a claimant's failure to exhaust.

"[A] plaintiff's failure

to exhaust administrative remedies can be excused if (1) the claim
5

is collateral to a demand for benefits, (2) exhaustion would be
futile, or (3) requiring exhaustion would result in irreparable
harm." Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir. 1997).
the

plaintiff's

claim

"is

not

collateral

to

his

Here,

demand

for

benefits, as it involves a demand for [retroactive] benefits."
Escalera, 457 F. App'x at 6.
suggests

that

exhaustion

Moreover, nothing in the record

would

be

futile

exhaustion would result in irreparable harm.

or

that

requiring

Accordingly, in the

absence of a "final decision" as required by 42 U.S.C. § 405(g),
this case must be dismissed.
IV.

Conclusion
For these reasons, the defendant's motion to dismiss the

plaintiff's complaint (doc #16) is granted.
SO ORDERED at Hartford, Connecticut, this 4th day of October,
2019.
_________/s/___________________
Donna F. Martinez
United States Magistrate Judge

6