Didato v. Commissioner of Social Security
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,
ANDREW M. SAUL, COMMISSIONER
OF SOCIAL SECURITY,
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
In February 2018, the plaintiff, who is self-represented,
commenced this action seeking review of the final determination of
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
(Doc. #1 at 4.)
The defendant thereafter moved to
dismiss the plaintiff's complaint because the plaintiff failed to
exhaust administrative remedies.
is not a recommended ruling.
the jurisdiction of a magistrate judge.
The plaintiff did
The parties consented to
not file any response to the defendant's motion.
The court, in an
abundance of caution, issued an order extending, sua sponte, the
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
On March 1, 2016, an Administrative Law Judge ("ALJ") issued
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."
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).)
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."
#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."
On December 4, 2017, the plaintiff submitted a letter.
By order dated December 19, 2017, the Appeals
Council found that the plaintiff had not demonstrated good cause
for extending the deadline.
(Prelle Decl. ¶(3)(g); doc. #16-9 at
This action followed.
The defendant argues that the plaintiff's complaint should be
dismissed for failure to exhaust administrative remedies.
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).
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
"[A] timely request for review by the Appeals Council
is required for exhaustion of administrative remedies."
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
3:16CV1448(SRU), 2017 WL 2960507, at *1 (D. Conn. July 11, 2017).
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,
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
the court does not have jurisdiction to review a
decision by the Appeals Council to dismiss an untimely request for
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).")
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
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.
Therefore, he failed to
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
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).
benefits, as it involves a demand for [retroactive] benefits."
Escalera, 457 F. App'x at 6.
Moreover, nothing in the record
exhaustion would result in irreparable harm.
Accordingly, in the
absence of a "final decision" as required by 42 U.S.C. § 405(g),
this case must be dismissed.
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,
Donna F. Martinez
United States Magistrate Judge
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