Robbins v. Colvin

Filing 27

Magistrate Judge Marianne B. Bowler: ORDER entered. MEMORANDUM AND ORDER. In accordance with the foregoing discussion, the motion to dismiss (Docket Entry # 13 ) is ALLOWED to the extent that the dismissal of the untimely request for review is not a "final decision" under 42 U.S.C. § 405(g) subject to judicial review. The motion to dismiss (Docket Entry # 13 ) is DENIED inasmuch as plaintiff presents a colorable constitutional claim of a denial of due process sufficient to confer jurisdiction. Counsel shall advise this court within 30 days whether he wishes to pursue this constitutional claim. (Patton, Christine)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JEFFREY ROBBINS,
Plaintiff,
v.

CIVIL ACTION NO.
14-13829-MBB

CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

MEMORANDUM AND ORDER RE:
MOTION TO DISMISS FOR LACK OF
SUBJECT MATTER JURISDICTION
(DOCKET ENTRY # 13)
November 3, 2015

BOWLER, U.S.M.J.
Pending before this court is a motion to dismiss this social
security disability action for lack of subject matter
jurisdiction filed by defendant Carolyn W. Colvin, Acting
Commissioner of the Social Security Administration
(“Commissioner”), under Fed.R.Civ.P. 12(b)(1) (“Rule 12(b)(1)”).
(Docket Entry # 13).

The Commissioner submits this court lacks

jurisdiction to review a decision by the Appeals Council denying
plaintiff Jeffrey Robbins (“plaintiff”) an extension of time to
file a request for review of a decision by an administrative law
judge (“ALJ”).
Plaintiff contends that neither he nor his attorney received
the ALJ’s decision until after the 60 day appeal period expired.

In opposing the motion, plaintiff provides affidavits from his
attorney and office staff attesting that the office did not
receive the ALJ’s August 19, 2013 decision until an office case
manager retrieved it on November 11, 2013, from an electronic
records portal maintained by the Social Security Administration
(“SSA”).

Plaintiff promptly filed a motion seeking an extension

of time to file an appeal of the ALJ’s decision, which the
Appeals Council denied.

Plaintiff filed this action thereafter

under 42 U.S.C. § 405(g) and, notably, “the Due Process Clause of
the Fifth Amendment.”

(Docket Entry # 1).
BACKGROUND

On April 14, 2011, plaintiff, at the age of 21, filed an
application for child insurance benefits on the basis of a
disability and the earnings record of his mother.

On the same

day, plaintiff filed an application for supplemental security
income.

(Docket Entry # 14-1, pp. 8, 32).1

the state agency denied the applications.

On July 29, 2011,
On August 8, 2011,

plaintiff filed a request for reconsideration within the 60 day
time period.

(Docket Entry # 14-1, pp. 8-9, 30); 20 C.F.R. §§

404.909, 416.1409.
reconsideration.

On October 19, 2011, the Commissioner denied

(Docket Entry # 14-1, pp. 9, 30); 20 C.F.R. §§

404.920, 416.1420.

On November 1, 2011, plaintiff filed a timely

1

Page numbers refer to the docketed page as opposed to the
page number of the document itself.
2

request for a hearing before the ALJ.

(Docket Entry # 14-1, pp.

9, 30); 20 C.F.R. §§ 404.933, 416.1433.
evidentiary hearing on July 23, 2013.
9).

The ALJ conducted an

(Docket Entry # 14-1, p.

On August 19, 2013, the ALJ issued a written decision and

determined that plaintiff was not disabled.

(Docket Entry # 14-

1, pp. 8-23); 20 C.F.R. §§ 404.953, 416.1453.
Regulations dictate that the ALJ “shall mail a copy of the
decision to all the parties at their last known address.”
C.F.R. §§ 404.953(a), 416.1453(a).

20

Where, as here, plaintiff had

an attorney, the regulations also require the SSA to send
plaintiff’s attorney notice of the decision.

20 C.F.R. §

404.1715 (“We shall send your representative–(1) Notice and a
copy of any administrative action, determination, or decision”)
(emphasis added); 20 C.F.R. § 416.1515.
The ALJ’s decision is ordinarily binding on the parties
unless a party “request[s] a review of the decision by the
Appeals Council within the stated time period.”

20 C.F.R. §§

404.955, 416.1455; see also 20 C.F.R. §§ 404.900(a)(4),
416.1400(a)(4).

The stated time period to file a request for

review by the Appeals Council is 60 days from receipt of the
notice.

20 C.F.R. §§ 404.968(a)(1), 416.1468.

As stated in the

regulations, plaintiff has “60 days after the date [plaintiff]
receive[s] notice of the hearing decision or dismissal” of a
request for a hearing to file a written request for Appeals

3

Council review.

20 C.F.R. §§ 404.968(a)(1), 416.1468; see 20

C.F.R. §§ 404.967, 416.1467.

Receipt as opposed to the mailing

date of the notice is the operative guideline.
404.968(a)(1), 416.1468.

20 C.F.R. §§

Regulations define the date a plaintiff

receives notice as “5 days after the date on the notice, unless
you show us that you did not receive it within the 5-day
period.”2

20 C.F.R. §§ 404.901, 416.1401.

This same presumption

applies to receipt of the ALJ’s decision by plaintiff’s attorney.
20 C.F.R. §§ 404.1703, 416.1503.
A plaintiff may also request an extension of the 60 day time
period to file a request for Appeals Council review.
§§ 404.968(a)(1), 416.1468.

20 C.F.R.

Filed with the Appeals Council, the

written request “must give the reasons why the request for review
was not filed within the stated time period.”
404.968, 416.1468.

20 C.F.R. §§

If plaintiff shows “good cause for missing

the deadline, the time period will be extended.”3

20 C.F.R. §§

2

In comparison, the plaintiff must make a “reasonable
showing” to rebut the five day presumption when seeking an
extension of time to seek judicial review from an Appeals
Council’s denial of a request to review the ALJ’s decision. 20
C.F.R. § 422.210(c).
3

In full, the regulations read as follows:

(b) Extension of time to request review. You or any party
to a hearing decision may ask that the time for filing a
request for the review be extended. The request for an
extension of time must be in writing. It must be filed with
the Appeals Council, and it must give the reasons why the
request for review was not filed within the stated time
period. If you show that you had good cause for missing the
4

404.968, 416.1468.

The regulations define “good cause.”

C.F.R. §§ 404.911, 416.1411.

20

One of the nine examples of

circumstances “where good cause may exist” is that the plaintiff
“did not receive notice of the determination or decision.”4

20

C.F.R. §§ 404.911, 416.1411.
Here, the electronic file maintained by the Office of
Disability Adjudication and Review applicable to plaintiff’s
applications includes the ALJ’s August 19, 2013 decision along
with a notice of the unfavorable decision dated August 19, 2013.
The notice is addressed to plaintiff at 22 Wall Street in
Brockton, Massachusetts with a courtesy copy to plaintiff’s
counsel at his current and correct address in Portland, Maine.
Consistent with the regulations, the notice explained that
plaintiff must file a written appeal with the Appeals Council
“within 60 days of the date you get this notice” and the “Appeals
Council assumes you got this notice 5 days after the date of the

deadline, the time period will be extended. To determine
whether good cause exists, we use the standards explained in
§ 416.1411.
20 C.F.R. §§ 404.968, 416.1468.
4

The regulations read as follows:

Examples of circumstances where good cause may exist
include, but are not limited to, the following situations: .
. . (7) You did not receive notice of the initial
determination or decision.
20 C.F.R. § 416.1411(b); accord 20 C.F.R. §§ 404.911(b).
5

notice unless you show you did not get it within the 5-day
period.”

(Docket Entry # 14-1, p. 5).

There is no dispute that the Appeals Council did not receive
a request for review within the 65 day time period after the
ALJ’s August 19, 2013 decision, i.e., October 23, 2013.

Rather,

by letter dated November 19, 2013, plaintiff’s counsel wrote to
the Appeals Counsel and requested an extension of time to file an
appeal of the ALJ’s decision with the Appeals Council.
Entry # 14-1, p. 24).

(Docket

The letter stated the reasons for not

filing the request for review in a timely manner, namely, that
plaintiff’s counsel did not receive the ALJ’s decision until
November 14, 2013,5 and that the “decision was not sent to his
office at the time it was issued.”6
24).

(Docket Entry # 14-1, p.

On November 23, 2013, plaintiff’s counsel filed a request

for Appeals Council review.7
On August 11, 2014, the Appeals Council “dismissed [the]
request for review.”

(Docket Entry # 14-1, pp. 26-27) (emphasis

5

By affidavit filed in this court, counsel acknowledges
that he mistakenly wrote the date of November 14, 2013, when in
fact his office received the decision on November 11, 2013.
(Docket Entry # 17-2).
6

The Commissioner argues that this “unsworn assertion” by
counsel is not sufficient to rebut the presumption of receipt
five days after the date of the August 19, 2013 decision.
(Docket Entry # 20).
7

The request notes a different Brockton address for
plaintiff than the 22 Wall Street address.
6

added).

The decision stated that, “The request for review filed

on November 23, 2013, was not filed within 60 days from the date
notice of the decision was received” and the date of receipt “is
presumed to be five (5) days after the date of such notice unless
a reasonable showing to the contrary is made.”
14-1, p. 27).

(Docket Entry #

The decision found “no good cause to extend the

time for filing” because the ALJ’s “decision was mailed to the
same address listed on the attorney letterhead and the same
address listed on the request for review.”

(Docket Entry # 14-1,

p. 27).
The accompanying cover letter explained that, “Under our
rules, the dismissal of a request for review is final and not
subject to further review.”

(Docket Entry # 14-1, p. 26).

The

applicable regulations confirm that, “The Appeals Council will
dismiss your request for review if you did not file your request
within the stated period of time and the time for filing has not
been extended.”

20 C.F.R. §§ 404.971, 416.1471.

Further, “The

dismissal of a request for Appeals Council review is binding and
not subject to further review.”

20 C.F.R. §§ 404.972, 416.1472

(emphasis added).
The regulations explain that, when presented with a request
for review, the Appeals Council has three options.

It “may deny

or dismiss the request for review, or it may grant the request
and either issue a decision or remand the case to an

7

administrative law judge.”
(emphasis added).

20 C.F.R. §§ 404.967, 416.1467

Whereas the regulations dictate that a

dismissal of a request for review is “not subject to further
review,” 20 C.F.R. §§ 404.972, 416.1472, a denial of a request
for review or a decision by the Appeals Council “is binding
unless” the plaintiff “or another party file[s] an action in
Federal district court within 60 days after the date you receive
notice of the Appeals Council’s action.”

20 C.F.R. §§ 404.981,

416.1481.
Plaintiff filed this action within 60 days of receipt of the
Appeals Council’s August 11, 2014 dismissal.

The statute allows

a plaintiff judicial review “after any final decision of the
Commissioner of Social Security made after a hearing . . ..”
U.S.C. § 405(g) (emphasis added).

42

The corresponding regulations

state that, “If you are dissatisfied with our final decision, you
may request judicial review by filing an action in a Federal
district court.”

20 C.F.R. §§ 404.900(a)(5), 416.1400(a)(5).

In opposing the Rule 12(b)(1) motion, plaintiff filed three
affidavits evidencing that neither his counsel nor counsel’s
office received the ALJ’s decision until an office case manager
retrieved it from the SSA’s electronic records system on November
11, 2013.8

(Docket Entry ## 17-2, 17-3, 17-4).

8

The affidavits

Plaintiff did not file the affidavits with the Appeals
Council in November 2013. Rather, he submitted only the letter
explaining the basis for the late filing and, a few days later,
8

explain in detail that by 2013 plaintiff’s counsel had installed
a computerized case management system for Social Security matters
to track and enter all incoming office documents.
## 17-2, 17-3, 17-4).

The system allows for “contemporaneous

entries of events and conversations with clients.”
# 17-2).

(Docket Entry

(Docket Entry

Thus, by 2013, plaintiff’s counsel’s office “had a

system in place whereby each piece of incoming mail [was] scanned
into the database in the case management program” and received a
computer generated date “on the date received.”
17-3).

(Docket Entry #

In addition to scanning all incoming mail, the hearing

case manager at the firm received computer generated reminders
every 30 days from the date of an ALJ hearing to check for
receipt of the decision.

(Docket Entry # 17-2).

By affidavit, the hearing case manager assigned to
plaintiff’s case states she checked the office case management
system on August 21, and 22, 2013, in response to telephone calls
from plaintiff and his mother asking for the status of the case.
(Docket Entry # 17-4).

Having checked the case management

system, she determined there had not been a decision.
Entry # 17-4).

(Docket

She checked the system again on October 4, 2013,

when plaintiff’s mother telephoned the office for a second time
inquiring about the status of the case.

The hearing case

manager’s entry that day reflects there was still no receipt of

the request for review.
9

the ALJ’s decision.

A few weeks later on October 29, 2013,

plaintiff telephoned the office asking about the status of the
case.

The hearing case manager again checked the case management

system and it still showed no receipt of the decision.

The

affidavits therefore evidence not only that counsel’s office had
not received the ALJ’s decision but also that plaintiff had not
received the decision in light of his telephone calls asking for
the status of the case.9

(Docket Entry # 17-4).

On November 11, 2013, the hearing case manager checked the
electronic records portal maintained by the SSA.

It was only at

that time that she received the decision, according to her
affidavit and plaintiff’s counsel’s affidavit.

As set out in all

three affidavits, the office was never sent a copy of the
decision in the mail and it never received the decision until
November 11, 2013.
DISCUSSION
The Commissioner argues there was no “final decision” made
after a hearing within the meaning of 42 U.S.C. § 405(g).
Accordingly, jurisdiction is lacking.

Plaintiff maintains that

neither he nor his attorney received the ALJ’s decision within

9

The Commissioner argues that, assuming that the court
accepts the evidence not submitted to the Appeals Council,
plaintiff “submitted nothing regarding whether he failed to
timely receive the ALJ’s decision.” (Docket Entry # 20)
(emphasis in original). In light of the above circumstantial
evidence, the argument is not convincing.
10

the 60 day time period and that lack of notice provides a basis
to avoid dismissal.
Under 42 U.S.C. § 405(g), this court’s “jurisdiction [is]
limited to review of ‘any final decision of the Secretary made
after a hearing . . ..’”

Doe v. Secretary of Health and Human

Services, 744 F.2d 3, 4 & n.1 (1st Cir. 1984) (quoting 42 U.S.C.
§ 405(g) and citing 42 U.S.C. § 405(h) while noting the latter
equally applies to 42 U.S.C. § 1383(c)(3)).

The statute, 42

U.S.C. § 405(g), does not specify the components of a final
decision, Mills v. Apfel, 244 F.3d 1, 5 (1st Cir. 2001) (“statute
permits review of ‘the final decision of the Commissioner’
without specifying components”), and not all final decisions made
after a hearing are subject to judicial review under 42 U.S.C. §
405(g).

Doe v. Secretary of Health and Human Services, 744 F.2d

at 4 (“not every final decision made after a hearing . . . is
routinely subject to judicial review under 42 U.S.C. § 405(g)”).
Under the administrative scheme of the statute’s
implementing regulations, the plaintiff ordinarily must proceed
through four administrative stages to obtain a final decision
that is subject to judicial review.

See 20 C.F.R. §§ 404.900(a),

416.1400(a); McDonald v. Secretary of Health and Human Services,
834 F.2d 1085, 1087 (1st Cir. 1987) (if “state agency makes a
finding of no disability, the applicant has available several
levels of administrative review within which to seek a different

11

outcome”); Parker v. Califano, 644 F.2d 1199, 1202 (6th Cir.
1981) (regulations require claimant to “proceed through four
administrative stages: the initial determination, the
reconsideration, the hearing, and Appeals Council Review”)
(citations omitted).

Throughout these stages, the regulations

require the ALJ or the SSA to provide notice of administrative
decisions to the parties by mail to their last known address and
to the parties’ representatives.

See 20 C.F.R. §§ 404.904,

404.922, 404.938, 404.953, 404.973, 404.979, 404.1715, 416.1404,
416.1422, 416.1438, 416.1453, 416.1458, 416.1473, 416.1479,
416.1515; Parker v. Califano, 644 F.2d at 1202 (“regulations
further provide that notice of the agency action taken at each
stage and the right to proceed to the next stage be transmitted
to the claimant”).

When a plaintiff fails to seek review at the

next administrative level within the proper time period, the
determination at the prior level “becomes binding.”

McDonald v.

Secretary of Health and Human Services, 834 F.2d at 1087
(claimant “must request review at the next administrative level
within 60 days of receipt of an adverse determination at the
preceding level” and “prior determination becomes binding if
review is not sought within the proper time limits”).
A “final decision” within the meaning of 42 U.S.C. § 405(g)
inures after administrative exhaustion of these levels of review.
See Wilson v. Secretary of Health and Human Services, 671 F.2d

12

673, 677 (1st Cir. 1982).

Indeed, the “final decision” required

to invoke jurisdiction under 42 U.S.C. 405(g) “has been
authoritatively interpreted to mean ‘that the administrative
remedies provided by the Secretary be exhausted.’”

Id. (quoting

Mathews v. Eldridge, 424 U.S. 319, 328 (1976)) (emphasis added).
It also usually reflects a substantive decision on the benefits
claim as opposed to a dismissal of a request for review.

See Doe

v. Secretary of Health and Human Services, 744 F.2d at 4 (“‘final
decision of the Secretary’ generally means ‘the initial
substantive decision of the Secretary on the benefits claim’”).10
With respect to an untimely request for review of the ALJ’s
decision, the regulations unequivocally state that, “The Appeals
Council will dismiss” the request “if you did not file your
request within the stated period of time and the time for filing
has not been extended,” 20 C.F.R. §§ 404.971, 416.1471, by a
showing of good cause.

See 20 C.F.R. §§ 404.968, 416.1468.

Moreover, “The dismissal . . . is binding and not subject to
further review.”

20 C.F.R. §§ 404.972, 416.1472; see Rothman v.

Secretary of Health and Human Services, 1994 WL 866086, at *1
(1st Cir. Dec. 8, 1994) (citing Bacon v. Sullivan, 969 F.2d 1517,
10

Strictly speaking, the administrative exhaustion
requirement is not jurisdictional. See Bowen v. City of New
York, 476 U.S. 467, 480 (1986); McDonald v. Secretary of Health
and Human Services, 834 F.2d at 1089. That said, there is no
indication that the August 19, 2013 decision was not available on
or before October 23, 2013, given the ability to log onto the
electronic records portal maintained by the SSA.
13

1519-21 (3rd Cir. 1992) (collecting cases));11 see also Doe v.
Secretary of Health and Human Services, 744 F.2d at 4-5; Rios v.
Secretary of Health, Education and Welfare, 614 F.2d 25 (1st Cir.
1980); Matos v. Secretary Health, Education and Welfare, 581 F.2d
282, 286–287 (1st Cir. 1978).

As stated in Rothman, where, as

here, the Appeals Council rejects an “untimely request for review
of the ALJ’s decision after finding that [the plaintiff] failed
to establish the requisite good cause[,] . . . such a dismissal
is not a ‘final decision’ for the purposes of 42 U.S.C. § 405(g)
and thus is not reviewable in federal court.”

Rothman v.

Secretary of Health and Human Services, 1994 WL 866086, at *1
(citing Bacon v. Sullivan, 969 F.2d at 1519-21).

The plain

language of the foregoing regulations, 20 C.F.R. §§ 404.971,
404.772, 416.1471, 416.1472, the limited delineation of
jurisdiction in 42 U.S.C. § 405(g), see Doe v. Secretary Health
and Human Services, 744 F.2d at 4-5,12 and the First Circuit’s
11

As an unpublished decision, Rothman does not provide
binding precedent but can be used for its “persuasive value.”
1st Cir. R. 32.1 (court may consider unpublished opinions “for
their persuasive value but not as binding precedent”).
12

The First Circuit in Doe recognized the unfairness that
could result from denying review in certain circumstances but
explained that:
“‘[T]he right to receive social security benefits does not
derive from the common law or the United States
Constitution. It came into being by Act of Congress’ . . .
. Congress delineates the jurisdiction of the federal courts
to hear claims based on the Act, and any change in this
court’s jurisdiction must come from Congress.”
14

decision in Rothman uniformly support the fact that there is no
“final decision” in the case at bar that would allow judicial
review under 42 U.S.C. § 405(g).

This conclusion is consonant

with the progressive administrative stages of review and the bar
that occurs at each stage when the plaintiff does not seek review
at the next stage.
Section 405(g) therefore “clearly limits judicial review to
a particular type of agency action, a ‘final decision of the
Secretary made after a hearing.’”
99, 108 (1977).

Califano v. Sanders, 430 U.S.

Indeed, the decision by the Third Circuit in

Bacon, cited by the First Circuit in Rothman, recognizes that,
except for the Eleventh Circuit, “every court of appeals which
has addressed this question has held that the Appeals Council may
dismiss untimely requests for review of ALJ decisions, and such
dismissals are not reviewable by district courts because they are
not ‘final decisions’” within the meaning of 42 U.S.C. § 405(g).
Bacon v. Sullivan, 969 F.2d at 1520 (collecting cases from
Second, Fourth, Fifth, Seventh, Eighth and Ninth Circuits); see
also Hilmes v. Secretary of Health and Human Services, 983 F.2d
67, 70 (6th Cir. 1993).
Even arbitrary refusals by the Commissioner to reopen an
untimely claim supported by good cause are not subject to

Doe v. Secretary of Health and Human Services, 744 F.2d at 4-5
(quoting Matos v. Secretary Health, Education and Welfare, 581
F.2d at 282, 286–287).
15

judicial review under 42 U.S.C. § 405(g).

See Califano v.

Sanders, 430 U.S. at 107-108 (42 U.S.C. § 405(g) “cannot be read
to authorize judicial review of alleged abuses of agency
discretion in refusing to reopen claims for social security
benefits”).

The First Circuit in Matos agrees.

See Matos v.

Secretary of Health, Education and Welfare, 581 F.2d at 286
(“Under Sanders, the Secretary likewise arbitrarily could refuse
to reopen a claim for which ‘good cause’ to reopen had been
presented by the claimant”).

In light of Sanders, this court

lacks jurisdiction under 42 U.S.C. § 405(g) to review the
Commissioner’s dismissal of the request for review even if the
refusal to extend the time to seek review of the ALJ’s denial was
arbitrary.

In sum, based on the arguments presented, the Appeals

Council’s dismissal of plaintiff’s untimely request for review
and its finding that plaintiff failed to show good cause is not a
final decision subject to judicial review under 42 U.S.C. §
405(g).
Plaintiff, however, asserts a constitutional claim of a
denial of due process.

(Docket Entry ## 1, 17).

The Supreme

Court recognizes a limited exception to the bar to judicial
review posed by 42 U.S.C. § 405(g) for colorable constitutional
claims.

See Califano v. Sanders, 430 U.S. at 109.

Circuit likewise recognizes such an exception.

The First

See Doe v.

Secretary of Health and Human Services, 744 F.2d at 5 (citing

16

Califano v. Sanders, 430 U.S. at 109, and Penner v. Schweiker,
701 F.2d 256 (3rd Cir. 1983); Matos v. Secretary of Health,
Education and Welfare, 581 F.2d at 286 n.6; see also Rothman v.
Secretary of Health and Human Services, 1994 WL 866086, at *1
(citing Bacon v. Sullivan, 969 F.2d at 1519-1521, which, in turn,
cites Penner v. Schweiker, 701 F.2d at 261, for principle that
constitutional claim alone may confer jurisdiction).
“Constitutional questions obviously are unsuited to resolution in
administrative hearing procedures and, therefore, access to the
courts is essential to the decision of such questions.”
v. Sanders, 430 U.S. at 109.

Califano

Moreover, a constitutional attack

based on a denial of due process is particularly well suited for
review because it is divorced from the merits of plaintiff’s
disability and supplemental security income claims.

See McDonald

v. Secretary of Health and Human Services, 834 F.2d at 1089-1090.
The issue therefore reduces to whether plaintiff shows a
colorable constitutional claim of being denied due process.13
See Doe v. Secretary of Health and Human Services, 744 F.2d at 45 (finding no “tenable constitutional claim” of due process when
ALJ required claimant to provide “‘satisfactory reason’” of
claimant’s inability to attend hearing or face dismissal of
13

As noted above, the issue is not whether the
Commissioner, even arbitrarily, refused to find good cause for
filing the request for review of the ALJ’s decision after the 65
day time period. See Matos v. Secretary of Health, Education and
Welfare, 581 F.2d at 286.
17

hearing request and ALJ thereafter dismissed hearing request when
not satisfied with claimant’s further response).
The ALJ in Doe requested evidence in the form of a medical
certificate and the First Circuit found that “the Secretary could
reasonably expect” the claimant to “be able to secure a medical
note.”

Id. at 5.

In finding “no tenable” due process claim, the

court noted that the circumstances fell “considerably short of
the demonstration of the presence of a constitutional issue in
Penner v. Schweiker, 701 F.2d 256 (3rd Cir. 1983),” which
involved “faulty notice of [an] adverse determination by [the]
Secretary.”
F.2d at 5.

Doe v. Secretary of Health and Human Services, 744
The implication, therefore, is that a faulty notice

of an adverse determination as set out in Penner might provide
the requisite showing.

Similar to Penner, plaintiff sets out a

due process claim of faulty notice.
Plaintiff provides more than sufficient evidence that, at a
minimum, his attorney did not actually receive notice of the
ALJ’s decision within the 60 day time period or, applying the
presumption of receipt in the regulations, the 65 day time
period.

20 C.F.R. §§ 404.901, 404.968, 416.1401, 416.1468.

In

addition, plaintiff’s conduct of repeatedly contacting his
attorney to determine the status of the case provides
circumstantial evidence that he did not receive a copy of the
decision during the same time period.

18

As a result of not

receiving notice of the decision, plaintiff was denied an
opportunity to challenge the denial of benefits before the
Appeals Council.

Plaintiff therefore makes a colorable showing

of being denied procedural due process.

See generally Parker v.

Califano, 644 F.2d at 1203 (“42 U.S.C. § 405(b), and due process
require that a claimant receive meaningful notice and an
opportunity to be heard before her claim for disability benefits
may be denied”).
Relying on 42 U.S.C. § 405(g), which requires “good cause”
for the failure to present the evidence (the affidavits) to the
Appeals Council, the Commissioner submits it is improper to
consider the affidavits because plaintiff did not present them to
the Appeals Council.

Left with the unsworn assertions in the

November 2013 letter to the Appeals Council, this court should
uphold the dismissal, according to the Commissioner.

(Docket

Entry # 20).
First, this court has upheld the dismissal.

It is a

separate and distinct question whether there was a constitutional
violation.
Second, it is true “that affidavits that merely state a date
of receipt more than five days after the Appeals Council’s
notice, or allege non-receipt within the five days, are not
sufficient, standing alone, to rebut the presumption” of receipt.
McLaughlin v. Astrue, 2011 WL 5085011, at *3 (1st Cir. Oct. 27,

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2011).

The issue, however, is not whether substantial evidence

supports the Appeals Council’s determination of the absence of
good cause to extend the 60 or 65 day period for receipt.
Rather, having found that 42 U.S.C. § 405(g) does not provide a
jurisdictional basis to review the dismissal of the request for
review by the Appeals Council of the ALJ’s decision, the issue is
whether there was a colorable showing of a due process violation.
The affidavits were not considered or necessary to adjudicate the
former issue and they were properly considered in determining the
latter constitutional issue.
In a related argument, the Commissioner submits that the
affidavits are not new evidence under sentence six of 42 U.S.C. §
405(g).

Sentence six states that:

The court may, on motion of the Commissioner of Social
Security made for good cause shown before the Commissioner
files the Commissioner’s answer, remand the case to the
Commissioner of Social Security for further action by the
Commissioner of Social Security, and it may at any time
order additional evidence to be taken before the
Commissioner of Social Security, but only upon a showing
that there is new evidence which is material and that there
is good cause for the failure to incorporate such evidence
into the record in a prior proceeding
42 U.S.C. § 405(g).

At this point, this court is not remanding

this case to the Commissioner to consider the new evidence.
Accordingly, the argument is premature.
In sum, 42 U.S.C. § 405(g) limits judicial review to final
decisions of the Secretary made after a hearing.

The Appeals

Council’s decision to deny the untimely request for review of the
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ALJ’s decision therefore is not subject to judicial review under
42 U.S.C. § 405(g).

Because plaintiff presents a colorable

constitutional claim of a denial of due process, this case will
proceed on the issue of whether there is a constitutional
violation and, if so, the appropriate remedy.

An appropriate

remedy does not necessarily entail a remand for an award of
benefits.

See generally Penner v. Schweiker, 701 F.2d at 261

(dicta noting that district court, once supplied with sufficient
record, will “decide what relief, if any, is consonant with due
process and the Secretary’s regulatory scheme”).
CONCLUSION
In accordance with the foregoing discussion, the motion to
dismiss (Docket Entry # 13) is ALLOWED to the extent that the
dismissal of the untimely request for review is not a “final
decision” under 42 U.S.C. § 405(g) subject to judicial review.
The motion to dismiss (Docket Entry # 13) is DENIED inasmuch as
plaintiff presents a colorable constitutional claim of a denial
of due process sufficient to confer jurisdiction.

Counsel shall

advise this court within 30 days whether he wishes to pursue this
constitutional claim.
/s/ Marianne B. Bowler
MARIANNE B. BOWLER
United States Magistrate Judge

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