Dodd v. Commissioner of Social Security

Filing 21

MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; GRANTS 9 Motion to Dismiss. ADOPTS Report and Recommendations re 17 . DISMISSES this civil action WITH PREJUDICE; and DIRECTS that it be STRICKEN from the active docket of this Court. Court directs the Clerk of Court to enter a separate judgment order Signed by District Judge Irene M. Keeley on 1/13/2016. (copy counsel of record via CM/ECF, copy pro se plaintiff via certified mail)(jmm) (Additional attachment(s) added on 1/13/2016: # 1 Certified Mail Return Receipt) (jmm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

VICKIE RENE’ DODD,
Plaintiff,
v.

CIVIL ACTION NO. 1:14CV133
(Judge Keeley)

CAROLYN W. COLVIN,
ACTING COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.
MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION

Pending for review is the Report and Recommendation (“R&R”)
(dkt. no. 17) of Magistrate Judge James E. Seibert (“magistrate
judge”) dated May 11, 2015, recommending that the Court grant
“Defendant’s Motion to Dismiss” (dkt. no. 9). On June 1, 2015, the
plaintiff,

Vickie

Rene’

Dodd

(“Dodd”),

filed

a

“Response

to

Defendant’s Motion to Dismiss,” which the Clerk of Court docketed
as “objections” to the R&R (dkt. no. 19). On June 15, 2015, the
Commissioner objected to Dodd’s untimely objections to the R&R and
sought dismissal (dkt. no. 20). For the reasons that follow, this
Court adopts the reasoning in Magistrate Judge Seibert’s R&R and
GRANTS the Commissioner’s Motion to Dismiss.

DODD V. COMMISSIONER OF SOCIAL SECURITY

1:14CV133

MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
I. PROCEDURAL BACKGROUND
Plaintiff filed applications for disability insurance benefits
(“DIB”) and supplemental security income (“SSI”) under Titles II
and XVI of the Social Security Act.
initially and on reconsideration.

Her applications were denied

Plaintiff then filed a request

for a hearing before an administrative law judge (“ALJ”).
October

31,

2013,

the

ALJ

issued

a

decision

dismissing

On
her

application for DIB and finding she has been disabled since May 13,
2013, based on her application for SSI.
The ALJ’s decision informed Dodd of her right to file an
appeal with the Appeals Council within sixty (60) days from the
date of receipt of the Notice of Decision.1

In addition, the ALJ’s

decision instructed Dodd that, if she did not file her request for
review

withing

sixty

(60)

days

of

receipt

of

the

Notice

of

Decision, the Appeals Council would dismiss a late request unless
Dodd demonstrated that a good reason for not filing her request for
review on time.

The ALJ’s decision also stated that the Appeals

Council would presume Dodd had received a copy of the decision
within five (5) days of the date of the decision.
1

Therefore,

All facts set forth in the procedural history are undisputed.
Citations and exhibits in support of these facts can be found in
Defendant’s Memorandum in Support of Defendant’s Motion to Dismiss.
2

DODD V. COMMISSIONER OF SOCIAL SECURITY

1:14CV133

MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
including five (5) additional days for mailing, Dodd was required
to file her request for review on or before January 7, 2014, in
order for her request to be timely.
The Appeals Council received Dodd’s request for review of the
ALJ’s decision on January 16, 2014.

On June 4, 2014, the Appeals

Council dismissed her request for review of the ALJ’s decision,
finding that she had not filed a timely request for review and that
there was no good cause to extend the time for filing.

The

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

20 C.F.R. § 416.1472

On August 8, 2014, Dodd filed a Complaint in this Court
challenging the decision of the Appeals Council.

On October 20,

2014, defendant filed a motion to dismiss Dodd’s complaint for lack
of

jurisdiction

because

Dodd

had

failed

to

exhaust

her

administrative remedies by failing to timely appeal the ALJ’s
decision to the Appeals Council, a prerequisite for appealing to
federal district court.
On May 11, 2015, Magistrate Judge James E. Seibert issued an
R&R finding that Plaintiff had failed to timely request Appeals
Council review at the administrative level.

He also found the

Appeals Council’s dismissal of Plaintiff’s untimely request for

3

DODD V. COMMISSIONER OF SOCIAL SECURITY

1:14CV133

MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
review

did

not

constitute

an

appealable

final

decision

and

concluded that Dodd had failed to exhaust all administrative
remedies, a prerequisite to triggering judicial review. Magistrate
Judge Seibert then notified Dodd that she had fourteen (14) days to
file objections to his R&R.
On June 1, 2015, six (6) days after her deadline to file
objections to the R&R had passed,2 Dodd filed objections. The
defendant has requested that the Court strike these as untimely and
adopt the R&R.

The Commissioner contends that Dodd has offered no

good cause for failing to file her objections to the R&R within the
time allotted.

It further asserts that she failed to allege good

cause for not filing a timely appeal of the ALJ’s decision to the
Appeals Council during the entirety of the sixty-five (65) day
appeal period.
II. LEGAL AUTHORITY
42 U.S.C. § 405 governs a federal court’s judicial review of
the Commissioner of Social Security’s final decisions. In part,
§ 405 states:

2

Because Memorial Day was on May 25, 2015, Plaintiff had until
May 26, 2015, to file her objections. Even allowing three (3) days
for mailing, Plaintiff’s filing would still be untimely.
4

DODD V. COMMISSIONER OF SOCIAL SECURITY

1:14CV133

MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
Any 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.
. . .
The findings and decision of the Commissioner of Social
Security after a hearing shall be binding upon all
individuals who were parties to such hearing. No 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.
§ 405(g)-(h) (emphasis added). “This provision clearly limits
judicial review to a particular type of agency action, a ‘final
decision’” of the Commissioner. Califano v. Sanders, 430 U.S. 99,
108, 97 S. Ct. 980, 986, 51 L. Ed. 2d 192 (1977). The Supreme Court
has held that “[t]he term ‘final decision’ is not only left
undefined by the Act, but its meaning is left to the [Commissioner]
to flesh out by regulation.” Weinberger v. Salfi, 422 U.S. 749, 766
(1975).
Pursuant to the regulations, once a claimant completes four
required administrative steps, the Commissioner is considered to
have made a “final decision,” and the claimant has “exhausted” her
administrative remedies. 20 C.F.R. § 416.1400(a)(5); see also
5

DODD V. COMMISSIONER OF SOCIAL SECURITY

1:14CV133

MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
McCarthy v. Madigan, 503 U.S. 140, 144-45 (1992) (“This Court long
has acknowledged the general rule that parties exhaust prescribed
administrative remedies before seeking relief from the federal
courts.”); Weinberger, 422 U.S. at 766 (finding the Commissioner
“may specify such requirements for exhaustion as [s]he deems serve
h[er] own interests in effective and efficient administration.”).
Pursuant

to

20

C.F.R.

§

416.1400(a)(2013),

the

four

administrative steps include:
(1) Initial determination. This is a
make about your eligibility or
eligibility for benefits or about any
discussed in § 416.1402, that gives
further review.

determination we
your continuing
other matter, as
you a right to

(2) Reconsideration. If you are dissatisfied with an
initial determination, you may ask us to reconsider it.
(3) Hearing before an administrative law judge. If you
are dissatisfied with the reconsideration determination,
you may request a hearing before an administrative law
judge.
(4) Appeals Council review. If you are dissatisfied with
the decision of the administrative law judge, you may
request that the Appeals Council review the decision.
§ 416.1400(a)(1)-(4).
III.

Discussion of Law

The sole issue pending for review is whether the Appeals
Council’s dismissal of Dodd’s request for review was a “final

6

DODD V. COMMISSIONER OF SOCIAL SECURITY

1:14CV133

MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
decision.”

The Commissioner does not contest that Dodd completed

the first three steps under 20 C.F.R. § 416.1400 relevant to the
determination.

As the magistrate judge found, Dodd’s application

for DIB and SSI were denied during an initial determination and on
reconsideration. After Dodd had requested a hearing before an ALJ,
she amended the alleged onset date of disability to May 13, 2013,
a decision that meant she would not be entitled to a period of
disability and disability insurance benefits under Title II because
she would not have disability insured status on the date of onset.
At the hearing, Dodd, through her attorney, voluntarily elected to
withdraw her request for hearing as it pertained to her application
for DIB benefits.
The ALJ issued his decision on October 31, 2013, finding Dodd
disabled under § 1614(a)(3)(A) of the Act since May 13, 2013, and
dismissing her application for disability and for DIB benefits. He
also concluded that the final determination date as to that portion
of her claim was June 29, 2012, the date on which her request for
reconsideration had been denied.
On June 4, 2014, the Appeals Council dismissed Dodd’s request
for review as untimely.

As the magistrate judge noted in the R&R,

refusing to review for failure to file a timely request is not a

7

DODD V. COMMISSIONER OF SOCIAL SECURITY

1:14CV133

MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
final decision by the Secretary.
1396(4th Cir. 1992).

Dillows v. Sullivan, 252 F.2d

Moreover, the Ninth Circuit has observed

that, “the Appeals Council’s decision to hear an untimely request
for review is discretionary and the Appeals Council may deny a
request for an extension without a hearing.”

Matlock v. Sullivan,

908 F.2d 492, 494 (9th Cir. 1990)(citing 20 C.F.R. § 416.1468).
In support of the motion to dismiss, the Acting Commissioner
submitted the sworn affidavit of Kathie Hart (“Hart”), Chief of
Court Case Preparation and Review Branch 2 of the Office of
Appellate Operations Office of Disability Adjudication and Review
of the Social Security Administration.

In her affidavit, Hart

provides a chronology of the progress of Dodd’s case following the
decision of the ALJ on October 31, 2013.

Despite timely notice,

Dodd did not file a request for review with the Appeals Council
until January 16, 2014, beyond the permitted sixty-five (65) day
period.

Finding no good cause for the late filing, the Appeals

Council dismissed Dodd’s request for review.

The magistrate judge

concluded that the Appeals Council’s dismissal was not a final
agency

decision

and

that

Dodd

had

not

administrative steps necessary for review.

completed

the

four

He therefore concluded

that the Court had no jurisdiction to review the merits of Dodd’s

8

DODD V. COMMISSIONER OF SOCIAL SECURITY

1:14CV133

MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
disability claim and recommended that the Commissioner’s Motion to
Dismiss be granted. The Court agrees with this recommendation and,
finding no error, ACCEPTS the magistrate judge’s R&R in whole.

It

therefore:
1.

GRANTS the defendant's motion to dismiss (dkt No. 9);

2.

DISMISSES this civil action WITH PREJUDICE; and

3.

DIRECTS that it be STRICKEN from the active docket of

this Court.
Pursuant to Fed.R.Civ.P. 58, the Court directs the Clerk of
Court to enter a separate judgment order and to transmit copies of
this Memorandum Opinion and Order Adopting Magistrate Judge’s
Report and Recommendation to plaintiff by certified mail and to
counsel of record.
It is so ORDERED.
DATED: January 13, 2016.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

9