Unpublished Dispositionfrances A. Mustain, Plaintiff-appellant, v. Secretary of Health and Human Services, Defendant-appellee, 825 F.2d 411 (6th Cir. 1987)

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US Court of Appeals for the Sixth Circuit - 825 F.2d 411 (6th Cir. 1987) Aug. 5, 1987


Before ENGEL, MERRITT and KRUPANSKY, Circuit Judges.

This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the motion to strike and dismiss, the record and the appellant's and appellee's briefs, this panel agrees unanimously that oral argument is not needed. Rule 34(a), Federal Rules of Appellate Procedure.

A review of the record reveals that Frances Mustain applied for disability insurance benefits in 1985. The claim and reconsideration of the claim were denied. The administrative law judge denied disability benefits in 1986. A review by the Appeals Council was not sought by Mustain. Instead, a complaint seeking disability benefits was filed in the district court. Mustain has appealed from the decision dismissing the complaint for failure to exhaust her administrative remedies.

Upon review, it is ORDERED that the appellee's motion to strike and dismiss be denied. Furthermore, we conclude that the district court did not err in dismissing the case for failure to exhaust administrative remedies. The judgment of the district court is affirmed for the reasons stated in the December 11, 1986, magistrate's report and recommendation and the January 28, 1987, district court decision. Rule 9(b) (5), Rules of the Sixth Circuit. Appellant may exhaust her administrative remedies by filing a belated request for review with the Appeals Council.