Lee v. Commissioner, Social Security
Filing
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REPORT AND RECOMMENDATIONS. Signed by: Judge Magistrate Judge Stephanie A Gallagher. Signed by Magistrate Judge Stephanie A Gallagher on 7/13/2017. (c/m 7/13/17 bmhs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SHAWN CRAIG LEE,
Plaintiff,
v.
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendants.
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Civil Case No. JKB-17-912
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REPORT AND RECOMMENDATIONS
Plaintiff Shawn Craig Lee filed an action pro se under the Social Security Act, 42 U.S.C.
§ 405(g), seeking review of the denial of his Social Security disability claim by the Social
Security Administration (“SSA”). The SSA has filed a motion to dismiss for lack of subject
matter jurisdiction (“motion”) pursuant to Federal Rule of Civil Procedure 12(b)(1), on the
grounds that Mr. Lee failed to exhaust his administrative remedies prior to filing his complaint.
[ECF No. 9]. Pursuant to Standing Order 2014-01, this motion is referred to me for a Report and
Recommendations. [ECF No. 3]. A Rule 56 letter was sent to Mr. Lee on June 15, 2017,
explaining the potential consequences of failing to respond to the motion to dismiss, but no
response was filed. [ECF No. 10]. No hearing is deemed necessary. See Local Rule 105.6 (D.
Md. 2016). For the reasons stated below, I recommend that the SSA’s motion to dismiss be
granted.
I.
Facts
In October, 2013, Mr. Lee filed for Supplemental Security Income disability benefits
with the SSA. [ECF No. 9-2, at 2]. His claim was denied initially on January 31, 2014, and on
reconsideration on April 16, 2014. Id. at 2-3. Mr. Lee then filed a request for a hearing on April
23, 2014, which was dismissed by an Administrative Law Judge (“ALJ”) on June 22, 2015 after
Mr. Lee failed to appear at a scheduled hearing. Id. at 3, [ECF No. 9-2, Ex. 6]. After Mr. Lee
again requested review, the Appeals Council remanded the case to the ALJ for a hearing. [ECF
No. 9-2, at 3]. This time, the hearing took place, and on March 9, 2017, the ALJ issued an
unfavorable decision denying benefits. Id.; [ECF No. 9-2, Ex. 9]. Mr. Lee did not file a request
for review of the unfavorable decision with the Appeals Council. [ECF No. 9-2, at 3]. Instead,
on April 5, 2017, Mr. Lee filed the instant action in this Court. [ECF No. 1].
II.
Standard of Review
Motions to dismiss for lack of subject matter jurisdiction are governed by Fed. R. Civ. P.
12(b)(1). While the plaintiff bears the burden of proving that the court has jurisdiction over the
claim or controversy at issue, a 12(b)(1) motion should only be granted if the “material
jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of
law.” Ferdinand-Davenport v. Children’s Guild, 742 F. Supp. 2d 772, 777 (D. Md. 2010); see
also Evans v. B.F. Perkins Co., a Div. of Standex Int’l Corp., 166 F.3d 642, 647 (4th Cir. 1999).
In a motion to dismiss for lack of subject matter jurisdiction, the pleadings should be regarded as
“mere evidence on the issue,” and courts may “consider evidence outside the pleadings without
converting the proceeding to one for summary judgment.” Evans, 166 F.3d at 647.
III.
Discussion
The SSA argues that this Court does not have jurisdiction over Mr. Lee’s claim because
he failed to exhaust his administrative remedies and is not appealing from a final order. Under
Social Security Act sections 205(g) and (h), an individual may only obtain judicial review of the
Commissioner’s “final” decision after he has exhausted all administrative remedies. 42 U.S.C.
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§§ 405(g)-(h). Because there is no formula for determining whether a decision is final, the
meaning of that term is left to federal and state agencies to define by regulation. Weinberger v.
Salfi, 422 U.S. 749, 766 (1975). Section 405(g) of the Social Security Act provides that “any
individual, after any final decision of the Commissioner made after a hearing to which he was a
party . . . may obtain a review of such decision by a civil action . . .” 42 U.S.C. § 405(g). This
Court must determine whether the ALJ’s unfavorable ruling constitutes a “final decision” that
may be reviewed in federal court, even though Mr. Lee did not first seek Appeals Council
review.
Social Security regulations define “final decision” as a decision made after completion of
a four-step administrative process.
Specifically, the regulations require: (1) an initial
determination; (2) reconsideration; (3) a hearing before an ALJ; and (4) review by the Appeals
Council. 20 C.F.R. § 416.1400(a). In fact, the notice sent to Mr. Lee along with the ALJ’s
unfavorable decision stated:
If you do not appeal and the Appeals Council does not review my decision on its
own, my decision will become final. A final decision can be changed only under
special circumstances. You will not have the right to Federal court review.
[ECF No. 9-2, Ex. 9].
The Fourth Circuit has not considered any cases in the exact procedural posture of this
case, where all of the other procedural steps were exhausted but the claimant did not seek
Appeals Council review. However, the Fourth Circuit has determined that a claimant’s
administrative remedies were not exhausted where she belatedly filed a request for review by the
Appeals Council, and the Appeals Council therefore declined to review her claim. See Adams v.
Heckler, 799 F.2d 131, 133 (4th Cir. 1986) (“We therefore affirm the district court’s conclusion
that no final decision by the Secretary has been presented by the facts herein and thus no
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jurisdiction for judicial review of the merits of Adams’ disability claim exists.”). If no final
decision is presented where the Appeals Council is asked belatedly to review a case, then it
follows logically that no final decision is presented where, as here, the Appeals Council is never
asked to perform review. Most other federal courts that considered this precise issue have
reached the same conclusion, and have determined that a claimant has not exhausted his
administrative remedies if he has failed to seek review by the Appeals Council. See, e.g., Puente
v. Callahan, No. 97-1056, slip op. at 2 (10th Cir. July 18, 1997) (“Examining plaintiff’s SSI
claim under § 405(g), we agree that plaintiff failed to exhaust the claim because she did not seek
review before the Appeals Council.”); Goff v. Sullivan, No. CV-90-955-MFM, slip op. at 2 (9th
Cir. Sept. 2, 1992) (“Because Goff did not appeal the ALJ’s adverse decision to the Appeals
Council, he failed to exhaust his administrative remedies in a timely manner and could not seek
judicial review in district court.”); Alexander v. Sullivan, Civ. A. No. 92-1950, 1992 WL 315105,
at *1 (E.D. La. Oct. 16, 1992) (“In situations where a claim has proceeded to a hearing before an
administrative law judge and has been denied on the merits, the Secretary’s ‘final decision’
comes only after the claimant has sought review by the Appeals Council.”); Hylton v. Bowen,
No. 87-0091-CV-W-8, 1987 WL 123574, at *3 (W.D. Mo. July 31, 1987) (“Thus, there cannot
be a ‘final decision’ of the Secretary when petitioner has failed to file a timely request for
Appeals Council review as Hylton has failed to do.”); Goodreau v. Bowen, 647 F. Supp. 1409
(W.D. Pa. 1986) (“Review by the Appeals Council is necessary to obtain a ‘final decision’ which
is subject to review.”). In light of the Fourth Circuit’s analysis in Adams and the general
consensus among other federal courts, the law as determined by Congress and the Commissioner
requires Appeals Council review before a “final decision” can be obtained. Since Mr. Lee
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sought no such review, he did not exhaust his administrative remedies and this Court lacks
jurisdiction over his appeal.
For the foregoing reasons, I recommend that the Commissioner’s motion to dismiss,
[ECF No. 9], be granted. I direct the Clerk to mail a copy of this Report and Recommendations
to Plaintiff at the address listed on the docket.
Any objections to this Report and
Recommendations must be served and filed within fourteen (14) days, pursuant to Fed. R. Civ. P.
72(b) and Local Rule 301.5.b.
NOTICE TO PARTIES
Failure to file written objections to the proposed findings, conclusions, and
recommendations of the Magistrate Judge contained in the foregoing report within fourteen (14)
days after being served with a copy of this report may result in the waiver of any right to a de
novo review of the determinations contained in the report and such failure shall bar you from
challenging on appeal the findings and conclusions accepted and adopted by the District Judge,
except upon grounds of plain error.
Dated: July 13, 2017
/s/
Stephanie A. Gallagher
United States Magistrate Judge
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