Lyons v. Astrue
MEMORANDUM AND ORDER re: 10 MOTION to Dismiss Case filed by Defendant Michael J. Astrue; motion is GRANTED. A separate Judgment shall accompany this Memorandum and Order. Signed by Magistrate Judge Lewis M. Blanton on 1/4/2013. (JMC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Case No. 2:12CV 1 LMB
MEMORANDUM AND ORDER
In this action, Plaintiff Duane Lyons seeks judicial review of an adverse ruling by the
Social Security Administration (“SSA”) on his application for a Period of Disability and Disability
Insurance Benefits pursuant to Title II of the Social Security Act. The parties have consented to
the exercise of authority by the undersigned United States Magistrate Judge under 28 U.S.C. §
636(c). Presently pending before the court is Defendant’s Motion to Dismiss With Suggestions in
Support. (Doc. No. 10). Plaintiff has filed a Response (Doc. No. 11), and defendant has filed
Reply. (Doc. No. 12).
In a letter dated November 1, 2010, the Commissioner advised plaintiff that an initial
determination had been made denying his application for benefits. See Def’s Ex. 1, Declaration of
Marian Jones, p. 2-3. The Commissioner also informed plaintiff that he had sixty days in which to
request a hearing, and that the sixty-day period started the day after he received the letter. Id.
Plaintiff was informed that the Commissioner assumes he received the letter five days after the
date on it unless he shows the Commissioner that he did not receive it within the five-day period.
Id. Finally, the Commissioner advised plaintiff that he had to request a hearing in writing, and
that he would need a good reason for waiting more than sixty days to submit his request. Id.
On January 18, 2011, plaintiff filed his request for a hearing. See Def’s Ex. 2.
On April 18, 2011, an Administrative Law Judge (“ALJ”) issued an Order of Dismissal
dismissing plaintiff’s request for a hearing because it was filed more than 65 days after the date of
the notice of initial determination, and plaintiff had not established that he did not receive the
determination within five days of this date. See Def’s Ex. 3. The ALJ stated that plaintiff’s
representative alleges that plaintiff missed the deadline to request a hearing because of “lack of
transportation,” and due to his “responsibilities related to his foster daughter’s medical care
treatments.” Id. The ALJ indicated that he considered this explanation and found that plaintiff
had not established good cause for missing the deadline to request a hearing. Id.
On June 10, 2011, plaintiff filed a request for review of the ALJ’s Order of Dismissal. See
Def’s Ex. 4.
On November 4, 2011, the Appeals Council denied plaintiff’s request for review of the
Order of Dismissal. See Def’s Ex. 5.
On January 5, 2012, plaintiff filed his Complaint in the instant action. (Doc. No. 1).
Defendant argues in his motion to dismiss that because plaintiff failed to timely request a
hearing in this matter and failed to exhaust his administrative remedies, this court does not have
subject matter jurisdiction over this case.
In his Response to defendant’s motion, plaintiff argues that defendant’s motion should be
denied because plaintiff has diligently pursued his benefits.
It is well settled that “[t]he United States, as sovereign, ‘is immune from suit save as it
consents to be sued, . . . and the terms of its consent to be sued in any court define that court’s
jurisdiction to entertain the suit.’” Lehman v. Nakshian, 453 U.S. 156, 160 (1981) (quoting
United States v. Testan, 424 U.S. 392, 399 (1976) and United States v. Sherwood, 312 U.S. 584,
586-87(1941)). Congress may prescribe the procedures and conditions under which, and the
courts in which, judicial review of administrative orders may be obtained. Tacoma v. Taxpayers
of Tacoma, 357 U.S. 320, 336 (1958). 42 U.S.C. § 405(g) and (h) provide the exclusive
jurisdictional basis for judicial review of final decisions on claims arising under Title II and Title
XVI. Title 42 U.S.C. § 405(g) provides for judicial review of final decisions of the
Commissioner of Social Security and includes a 60-day statute of limitations for seeking such
review. In particular, § 405(g) provides:
[a]ny individual, after any final decision of the Commissioner of Social Security
made after a hearing to which he was a party, irrespective of the amount in
controversy, may obtain a review of such decision by a civil action commenced
within sixty days after the mailing to him of notice of such decision or within such
further time as the Commissioner of Social Security may allow.
42 U.S.C. § 405(g) (emphasis added). In addition, § 405(h) provides:
[n]o findings of fact or decision of the Commissioner of Social Security shall be reviewed
by any person, tribunal, or governmental agency except as herein provided. No action
against the United States, the Commissioner of Social Security or any officer or
employee thereof shall be brought under section 1331 or 1346 of Title 28, United States
Code, to recover on any claim arising under this subchapter.
42 U.S.C. § 405(h).
Whether the district court has jurisdiction over the subject matter of this case depends on
whether the actions taken by the Commissioner constitute a “final decision.” The Supreme Court
in Weinberger v. Salfi, 422 U.S. 749, 766 (1975) stated:
The requirement [of a final decision] is...something more than simply a codification of
the judicially developed doctrine of exhaustion...The term “final decision” is not only left
undefined by the Act, but its meaning is left to the [Commissioner] to flesh out by
regulation...The statutory scheme is thus one in which the [Commissioner] may specify
requirements for exhaustion as he deems serve his own interests in effective and efficient
The regulations provide that the claimant for benefits first receives an initial determination.
See 20 C.F.R. § 404.902. If dissatisfied with this determination, the claimant may request
reconsideration. See 20 C.F.R. § 404.907. If dissatisfied with the reconsidered determination,
the claimant may request a hearing before an ALJ. See 20 C.F.R. § 404.929.
Here, plaintiff received an unfavorable initial determination. The notice explained to him
that if he disagreed with the Commissioner’s determination, he had sixty days in which to request
a hearing and that the sixty-day period started the day after he received the letter. Plaintiff failed
to request a hearing within the required time frame. The ALJ denied plaintiff’s request for a
hearing on the basis that the request was untimely, and that plaintiff had failed to establish good
cause for missing the deadline. The Appeals Council found no reason to review the ALJ’s
dismissal. No hearing was held in plaintiff’s claim.
The ALJ’s dismissal of plaintiff’s hearing request is not a ‘final decision’ subject to judicial
review. See Boock v. Shalala, 48 F.3d 348, 351 (8th Cir. 1995) (“the Secretary’s determination
of no good cause to extend the period for appeal...is not subject to judicial review under §
405(g)”); Smith v. Heckler, 761 F.2d 516, 519 (8th Cir. 1985) (Appeals Council’s dismissal of
plaintiff’s untimely request for review was not a final action for purposes of review under section
205(g)). Because plaintiff’s request for a hearing was denied as untimely, there is no final
decision subject to review by this court, and plaintiff did not exhaust his administrative remedies.
When actions of the Commissioner are challenged on colorable constitutional grounds that
are collateral to the substantive claim for benefits, the requirement of exhaustion of remedies is
waivable by the court. See Gipson v. Harris, 633 F.2d 120, 122 (8th Cir. 1980).
Plaintiff raises no such constitutional claim. Rather, plaintiff contends that the court
should excuse his failure to file a timely request for a hearing due to his lack of transportation and
the illness of a foster child. Plaintiff points out that 20 C.F.R. §§ 404.911(b)(2) and
416.1411(b)(2) provide that “a death or serious illness in your immediate family” may be good
cause for missing a deadline to request review. Plaintiff, however, does not explain how his foster
daughter’s medical condition prevented him from making a timely written request for a hearing or
for more time in which to request a hearing. See 20 C.F.R. § 404.933(c) (providing for
extensions of time to request a hearing).
If the court were free to do so, it would be inclined to find that the claimant has stated
good cause for an extension of time to request a hearing before an A administrative Law Judge.
The claimant alleged that he had missed the deadline to request a hearing because of his
“responsibilities related to his foster daughter’s medical care treatments.” (Document #10,
Exhibit #4). The claimant’s affidavit supports his statement.
However, because Mr. Lyons’s request for a hearing was untimely and the Administrative
Law Judge issued an Order of Dismissal of Mr. Lyons’s request and the Appeals Council denied
the claimant’s request for review of the Order of Dismissal, the court does not have subject matter
jurisdiction over this case. This court must follow the decisions of the Eighth Circuit Court of
Appeals. See Boock v. Shalala, supra; Smith v. Heckler, supra; Turner v. Bowen, 862 F.2d 708,
709-710 (8th Cir. 1988). See also Ogbe v. Astrue, 2010 WL 6463875*2+ (D.Minn. 2010). In
accordance with those decisions, there is no final decision subject to review by this court.
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss (Doc. No. 10) be and it
A separate Judgment shall accompany this Memorandum and Order.
LEWIS M. BLANTON
UNITED STATES MAGISTRATE JUDGE
4th day of January, 2013.
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