Opinion
Case No. 02-CV-71032-DT
June 30, 2002
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Report and Recommendation of Magistrate Judge Donald A. Scheer dated May 31, 2002. Plaintiff Mr. Schwarck filed a timely objection to the Magistrate Judge's recommendation on June 12, 2002.
The Court has had an opportunity to review this matter and finds that the Magistrate Judge reached the correct conclusion for the proper reasons in finding that the Plaintiff failed to exhaust his administrative remedies by filing his request for review in an untimely manner. Accordingly, the Court ACCEPTS the Magistrate Judge's Report and Recommendation and GRANTS Defendants' motion to dismiss.
I. FACTS
Plaintiff filed an application for Social Security Disability Insurance Benefits ("DIB") on December 1, 1999, alleging that he was disabled and unable to work. The Social Security Administration ("SSA") denied benefits initially and upon reconsideration. Plaintiff requested a de novo hearing. Administrative Law Judge John A. Ransom held a hearing on April 2, 2001 and found that the claimant was not entitled to disability benefits because he retained the residual functional capacity to perform a restricted range of sedentary work activity.
It is undisputed that copies of the ALJ's decision denying benefits were sent to Plaintiffs residence and his attorney on June 28, 2001, advising them that, if they disagreed with the determination, they could request Appeals Council review of the decision within sixty (60) days from the date of receipt of the notice. The notice also advised Plaintiff and his attorney that the Appeals Council would assume the notice was received five (5) days after June 28, 2001.
On November 26, 2001, Plaintiffs attorney faxed a request for review to the Appeals Council, and on February 26, 2002, the Appeals Council issued an order denying Plaintiffs request as untimely. Plaintiffs attorney had stated that he did not receive a copy of the June 28, 2001, notice until November 9, 2001. The Appeals Council further informed Plaintiffs attorney that Plaintiff had failed to show good cause for an extension of time in which to request review pursuant to 20 C.F.R. § 404.968 (b) and 404.911.
Plaintiff filed a civil action in this Court on March 28, 2002 seeking judicial review of the denial of Social Security benefits. On May 24, 2002, Defendant filed a Motion to Dismiss for Failure to State a Claim for which Relief could be Granted, arguing that Plaintiff had failed to exhaust his administrative remedies. Magistrate Judge Scheer issued a Report and Recommendation on May 31, 2002 suggesting dismissal on this ground. Plaintiff now objects to the Magistrate Judge's Report and Recommendation.
II. STANDARD OF REVIEW
This Court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405 (g) and 405(h). Under 405(g):
[A]ny individual, after any final decision of the Commissioner 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 may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides or has his principal place of business, or if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Colombia.
Section 405(h) states:
The findings and decision of the Commissioner after a hearing shall be binding upon all who were parties to such hearing. No findings of fact or decision of the Commissioner shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Commissioner, or any officer or employee thereof shall be brought under Section 1331 or 1346 of title 28 to recover on any claim arising under this subchapter.
The first two sentences of Section 405(h) guarantee that "administrative exhaustion will be required. Specifically, they prevent review of decisions of the Commissioner save as provided in the [Social Security] Act, which provision is made in § 405(g)." Weinberg v. Salfi, U.S. 749 (1975).
Three conditions must be satisfied to obtain judicial review under § 405(g): (1) a final decision of the Commissioner after a hearing; (2) commencement of a civil action within sixty days after the mailing of notice of such decision, or within such additional time as the Commissioner may permit; and (3) filing of the action in the appropriate district court. 42 U.S.C. § 405 (g); Salfi, 422 U.S. at 763-764. The last two requirements are waivable by the parties; the first requirement, however, of a final decision, because it is "central to the requisite grant of subject-matter jurisdiction," is not waivable. Salfi, 422 U.S. at 764.
III. ANALYSIS
The Commissioner and Congress have established a four-step process to facilitate the orderly and sympathetic administration of disputed claims, which culminates in a final decision of the Commissioner subject to judicial review. 20 C.F.R. §§ 416.1402-1483. After the Commissioner has made an initial determination of disability, 42 U.S.C. § 421 (a); 20 C.F.R. § 404.1503 (1995), if dissatisfied the Plaintiff may request a de novo review of that determination. 20 C.F.R. §§ 404.907-921. If still dissatisfied Plaintiff has a right to an evidentiary hearing and a de novo review before an ALJ. 42 U.S.C. § 405 (b); 20 C.F.R. §§ 404.967-404.983 (1995). For the purposes of the finality requirement set forth in § 405(g), a claim becomes final after the appeals council renders its decision. The claimant may then seek judicial review in federal district court. 42 U.S.C. § 405 (g).
The Magistrate Judge found that both Mr. Schwarck and his attorney were given notice of the ALJ's decision. Both were also advised of the requirement to request a review of the decision within sixty days of that notification. See Report and Recommendation at 5 (referencing affidavit of Ms. Kelly at ¶ 3(a) and Exhibit 3). However, the attorney did not file a request for review until November 26, 2001, some ninety days beyond the filing deadline. See Report and Recommendation at 6. If the request for review has not been filed within sixty days, "the right provided by the statute cease(s) to exist, and the present action (would be) properly dismissed." Willis v. Secretary, 931 F.2d 390, 396 (6th Cir. 1994). Due to this untimely filing, the Plaintiff did not obtain a "final decision" sufficient to satisfy the requirements of § 405(g).
Plaintiffs Objection to the Magistrate Judge's Report and Recommendation states that an error on the part of Plaintiffs counsel caused the untimely appeal. See Objections to Magistrate Judge's Report and Recommendations at 1 (hereinafter referred to as "Pl.'s Br."). Plaintiffs Objection requests this Court to excuse his failure to exhaust administrative remedies under Heckler v. Ringer, 466 U.S. 602, 618 (1984), which excuses such failures "in certain special circumstances." Id. "Plaintiffs counsel ask[s] that [P]laintiff not be penalized for counsel's error in filing a late appeal with the Appeal Council." Id.
Plaintiff cites no persuasive authority that would demonstrate that this is a "certain special case" that excuses the Plaintiff from exhausting his administrative remedies under Heckler v. Ringer, 466 U.S. 602, 618 (1984). Indeed, a party is bound by the actions of his attorney absent fraud or collusion. All States Investors, Inc. v. Bankers Bond Co., 343 F.2d 618, 623 (6th Cir. 1965). No evidence of fraud or collusion has been presented. Therefore, Plaintiffs counsel's untimely filing of an appeal is fairly attributed to Plaintiff himself.
While Plaintiffs attorney claims that he did not receive a copy of the June 28, 2001 notice until November 9, 2001, the attorney did not file a request for an extension of time until seventeen (17) days later, on November 26, 2001. Further, Plaintiff does not allege that he, himself, did not receive a copy of the June 28, 2001 notice within the presumed five days.
Alternatively, Plaintiff requests that this Court remand the case to the Appeals Council for its review based on Plaintiffs attorney's untimely filing. The Court declines to do so for the reasons stated above. Likewise, the Court declines to find that the ALJ decision dated June 28, 2001 is a final decision of the Commissioner. This Court reiterates that, for the purposes of the finality requirement set forth in § 405(g), a claim becomes final after the appeals council renders its decision. Only then may the claimant seek judicial review in federal district court. 42 U.S.C. § 405 (g).
For the reasons stated above, Plaintiffs Objection is OVERRULED. The Court ADOPTS the Magistrate Judge's Report and Recommendation in its entirety and DISMISSES Plaintiffs Complaint.
IV. CONCLUSION
The Court, while not unsympathetic to Plaintiffs predicament, is not at liberty to grant the requested relief. The Social Security regulations require a claimant to exhaust all of his or her appeal rights with a specified time frame. The Commissioner may extend that period upon a showing of good cause. See C.F.R. §§ 404.909(b), 404.911, 404.933, 404.982. Here, the Commissioner found no good cause shown. As there is no judicial review available for the Commissioner's denial of a deadline extension, Hilmes v. Secretary, 983 F.2d 67, 70 (6th Cir. 1993), the Court DISMISSES Plaintiffs Complaint.
Accordingly,
IT IS SO ORDERED that the Report and Recommendation of Magistrate Judge Donald A. Scheer dated May 31, 2002 is ACCEPTED and ADOPTED.
IT IS FURTHER ORDERED that Defendant's Motion to Dismiss (Docket #5, filed May 24, 2002) is GRANTED.
IT IS FURTHER ORDERED that Plaintiffs Complaint is DISMISSED.