WHARY v. COMMISSIONER OF THE SOCIAL SECURITY ADMINSTRATION

Filing 9

MEMORANDUM OPINION AND ORDER signed by JUDGE JAMES A. BEATY, JR on 4/15/2013; that Defendant's Motion to Dismiss [Doc. # 6 ] is hereby GRANTED and this case is DISMISSED WITH PREJUDICE. A Judgment will be filed contemporaneously herewith. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
RONALD D. WHARY,
Plaintiff,
v.
CAROLYN W. COLVIN1,
Acting Commissioner of Social Security,
Defendant.

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1:12CV1261

MEMORANDUM OPINION AND ORDER
BEATY, District Judge.

This matter is before the Court on a Motion to Dismiss [Doc. #6] filed by Defendant
Carolyn W. Colvin, Acting Commissioner of Social Security (“Defendant” or “Commissioner”).
Defendant moves to dismiss Plaintiff Ronald D. Whary’s (“Plaintiff”) Complaint for lack of
subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.
Plaintiff has not responded in any way to Defendant’s Motion to Dismiss.2 For the reasons set

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Carolyn W. Colvin became the Acting Commissioner of Social Security on February
14, 2013. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin
should be substituted for Michael J. Astrue as the Defendant in this suit. No further action need
be taken to continue this suit by reason of the last sentence of section 205(g) of the Social
Security Act, 42 U.S.C. § 405(g). For simplicity, this Order will refer to the Acting
Commissioner as the Commissioner.
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Local Rule 7.3(k) states in relevant part that “[i]f a respondent fails to file a response
within the time required by this rule, the motion will be considered and decided as an
uncontested motion, and ordinarily will be granted without further notice.” L.R. 7.3(k).
Therefore, because Plaintiff has failed to file any Response to Defendant’s Motion to Dismiss,
the Court could, in its discretion, grant Defendant’s Motion without further discussion.
However, as set forth below, the Court will undertake a review of this matter to determine
whether subject matter jurisdiction exists.

forth below, the Court will grant Defendant’s Motion and will dismiss this case with prejudice.
I.

PROCEDURAL BACKGROUND
On September 20, 2006, Plaintiff filed an application for a period of disability and

disability insurance benefits, which was denied initially and upon reconsideration. (Jones Decl.
¶ 3(a), [Doc. #7-1]).3 On May 28, 2009, an Administrative Law Judge (“ALJ”) issued a fully
favorable decision, finding Plaintiff disabled as of June 1, 2006. (Jones Decl. ¶ 3(b), [Doc. #71]). However, on August 6, 2010, the Assistant Regional Commissioner for Processing Center
Operations returned Plaintiff’s case to the Appeals Council for consideration of Plaintiff’s
earnings after the stated onset of disability. (Jones Decl. ¶ 3(b), [Doc. #7-1]). As a result, the
Appeals Council remanded the case on October 27, 2010, for further development of Plaintiff’s
work activity during the relevant period. (Jones Decl. ¶ 3(c), [Doc. #7-1]). On April 10, 2012,
following a hearing, the ALJ issued a partially favorable decision, finding Plaintiff disabled as
of January 1, 2010, but not before. (Jones Decl. ¶ 3(d), [Doc. #7-1]). In the Notice of Decision
sent to Plaintiff, the ALJ informed Plaintiff of his right to file an appeal of the ALJ’s decision
with the Appeals Council. (Ex. A-1 to Def.’s Memorandum in Support, [Doc. #7-2]). The ALJ
further informed Plaintiff that to file such an appeal, Plaintiff must, within sixty (60) days of the
date Plaintiff received the Notice of Decision, request in writing that the Appeals Council
review the ALJ’s decision. (Ex. A-1 to Def.’s Memorandum in Support, [Doc. #7-2]). Plaintiff

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All citations to “Jones Decl.” reference the Declaration of Mr. James Jones, Chief of
Court Case Preparation and Review Branch 2 of the Office of Appellate Operations, Office of
Disability Adjudication and Review, Social Security Administration. Mr. Jones’ Declaration is
attached to Defendant’s Memorandum in Support of her Motion to Dismiss.

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did not file a request for review of the ALJ’s decision until July 20, 2012, outside of the sixty-day
time period set forth in the Notice of Decision.3 In his request, Plaintiff included a“good cause”
explanation for the late filing, contending that Plaintiff did not receive additional evidence until
July 17, 2012, and, therefore, was unable to submit the additional evidence to the Appeals
Council or properly request the appeal. (Ex. A-3 to Def.’s Memorandum in Support, [Doc. #74]). On August 13, 2012, the Appeals Council issued an order finding that Plaintiff’s reason
for late filing his request for review did not constitute good cause to extend the time for filing.
(Ex. A-3 to Def.’s Memorandum in Support, [Doc. #7-4]). As such, the Appeals Council
dismissed Plaintiff’s request for review. (Ex. A-3 to Def.’s Memorandum in Support, [Doc. #74]). On November 26, 2012, Plaintiff filed his Complaint in the present action, in which
Plaintiff seeks review by this Court of the ALJ’s decision. Defendant moves to dismiss this case
for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil
Procedure.
II.

DISCUSSION
When a defendant moves to dismiss based on lack of subject matter jurisdiction, the

Plaintiff bears the burden of proving that subject matter jurisdiction exists. Richmond,
Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991). In this

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The date on the Notice of Decision was April 10, 2012. As stated in the Notice of
Decision, and as set forth in the relevant regulations, a claimant is deemed to have received the
Notice of Decision five (5) days after the date on the Notice unless he shows that he did not
receive it within the five-day period. 20 C.F.R. § 404.901. Therefore, Plaintiff had sixty (60)
days from April 15, 2012, or up to June 14, 2012, to file his request for review with the Appeals
Council. In his request for review, Plaintiff did not make any showing that he did not receive
the Notice of Decision within five days of April 10, 2012.

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case, Defendant contends that the Court lacks subject matter jurisdiction because Plaintiff failed
to exhaust his administrative remedies in accordance with 42 U.S.C. § 405(g). Section 405(g)
provides in relevant part that “[a]ny individual, after any final decision of the Commissioner of
Social Security made after a hearing to which he was a party . . . may obtain a review of such
decision by civil action” in the United States District Court for the judicial district in which the
plaintiff resides. 42 U.S.C. § 405(g) (emphasis added). In order to obtain a judicially reviewable
“final decision,” the Plaintiff must complete an administrative review process within a specific
time. 20 C.F.R. § 404.900(a)(1-4); Matthews v. Eldridge, 424 U.S. 319, 327, 96 S. Ct. 893, 899,
47 L. Ed. 2d 18 (1976) (“The only avenue for judicial review is [42 U.S.C. § 405(g)], which
requires exhaustion of the administrative remedies provided under the [Social Security] Act as
a jurisdictional prerequisite.”). Under the relevant regulations, the administrative process has
four steps, which must be taken in order: (1) initial determination, (2) reconsideration, (3)
hearing before an administrative law judge, and (4) appeals council review. 20 C.F.R.
§ 404.900(a)(1-4). Only after the completion of all four steps may the plaintiff request judicial
review in a federal district court. 20 C.F.R. § 404.900(a)(5); 20 C.F.R. § 404.900(b) (“If you are
dissatisfied with our decision in the review process, but do not take the next step within the
stated time period, you will lose your right to further administrative review and your right to
judicial review, unless you can show us that there was good cause for your failure to make a
timely request for review.”).
More specifically, if, in the course of the administrative process, a plaintiff is dissatisfied
with the decision of the ALJ, he may request review of that decision by the Appeals Council

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within sixty (60) days of the ALJ’s decision. 20 C.F.R. §§ 404.955, 404.967. The Appeals
Council may deny the request for review and allow the ALJ’s decision to stand, or the Appeals
Council may grant the request for review and issue its own decision. 20 C.F.R. § 404.981. In
either case, the plaintiff may then seek judicial review of the Commissioner’s final decision by
filing an action in the appropriate federal district court within sixty (60) days after receiving
notice of the Appeals Council’s decision. 20 C.F.R. § 404.981. However, if the plaintiff fails
to file a request for review before the Appeals Council within the stated time period, and the
time for filing is not extended, the Appeals Council will dismiss the plaintiff’s request for review,
and the ALJ’s decision becomes binding on all parties. 20 C.F.R. § 404.971; 20 C.F.R. §
404.955.
In the present case, it is undisputed that Plaintiff failed to timely request that the Appeals
Council review the ALJ decision and, as a result, the Appeals Council dismissed Plaintiff’s
request for review. Therefore, the issue before the Court is whether the Appeals Council’s
decision to dismiss Plaintiff’s untimely request for review is a “final decision” by the
Commissioner subject to judicial review. The Fourth Circuit has previously addressed this very
issue, holding that “refusal to review for failure to file a timely request [does] not constitute a
final decision by the [Commissioner].” Adams v. Heckler, 799 F.2d 131, 133 (4th Cir. 1986).
Therefore, based on this Fourth Circuit precedent, the Commissioner did not issue a “final
decision” in this case that is subject to judicial review. More specifically, the decision of the ALJ
issued on April 10, 2012, became binding on the parties upon Plaintiff’s failure to timely file a
request for review by the Appeals Council, and is not subject to further review by this Court due

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to Plaintiff’s failure to timely exhaust his administrative remedies. See 20 C.F.R. § 404.900; 20
C.F.R. § 404.955. Moreover, the Appeals Council’s dismissal of Plaintiff’s request for review
is also binding and not subject to further review by this Court. Adams, 799 F.2d at 133; 20
C.F.R. § 404.972. Accordingly, because no judicially reviewable decision has been issued in this
case, Plaintiff has failed to show that the Court has subject matter jurisdiction to review his
claims. As such, the Court will grant Defendant’s Motion to Dismiss and will dismiss this case
with prejudice.
IT IS THEREFORE ORDERED that Defendant’s Motion to Dismiss [Doc. #6] is
hereby GRANTED and this case is DISMISSED WITH PREJUDICE. A Judgment will be
filed contemporaneously herewith.
This the 15th day of April, 2013.

United States District Judge

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