Holbrook v. SSA, No. 7:2013cv00114 - Document 9 (E.D. Ky. 2014)
Court Description: MEMORANDUM OPINION AND ORDER: Commissioner's Motion to Dismiss DE 8 is GRANTED. Signed by Judge Joseph M. Hood on 4/16/2014. (RCB)cc: COR
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION at PIKEVILLE ) ) ) ) ) ) ) ) ) ) ) ) CURTIS HOLBROOK. Plaintiff, v. CAROLYN W. COLVIN COMMISSIONER OF SOCIAL SECURITY Defendant. ** ** Action No. 7:13-CV-114-JMH MEMORANDUM OPINION AND ORDER ** ** ** This matter is before the Court on the Motion to Dismiss, or in the Alternative Carolyn Defendant, for Colvin, Security (the Holbrook to W. Commissioner). file a response matter is ripe for review. otherwise Summary sufficiently Judgment Acting The has [DE 8] Commissioner time for passed. filed by of Social Plaintiff Curtis Accordingly, this Having reviewed the record and being advised, the Court will grant the Commissioner s Motion for the reasons that follow. Plaintiff seeks judicial review of the denial of a claim for benefits under Titles II and XVI of the Social Security Act (the Act). However, Plaintiff failed to exhaust his administrative appeal remedies with respect to the claim for benefits and has not received 1 a final decision of the Commissioner as required to obtain judicial review under 42 U.S.C. §§ 405(g), 1383(c)(3). On January 12, 2012, Plaintiff filed applications for childhood disability benefits and supplemental security income under Titles II and XVI. [DE 8-3 at 94]. The agency denied Plaintiff s application at the initial level on November 26, 2012, and upon reconsideration on January 30, 2013. [DE 8-3 at 94 95]. The notice of the reconsideration decision informed Plaintiff that he had 60 days from the date he received the notice to request a hearing. [DE 8-3 at 105]. The regulations presume receipt five days after the date of the notice, thus Plaintiff had to request a hearing by April 5, 2013. See 20 C.F.R. §§ 404.901 416.1401. Plaintiff submitted an untimely request for a hearing on May 30, 2013. [DE 8-3 at 110]. of both reconsideration Plaintiff conceded the notices decisions were sent address, but alleged he did not receive them. to the correct [DE 8-3 at 110]. On June 25, 2013, an administrative law judge (ALJ) issued a decision dismissing Plaintiff s request for a hearing. [DE 8-3 The ALJ s decision [DE 8-3 at 116] noted that while a at 113]. claimant may request additional time to request a hearing, he must give good reasons for why the request for a hearing could not be timely 416.1411, filed. 416.1433(c). See 20 The C.F.R. ALJ 2 §§ 404.911, acknowledged 404.933(c), that Plaintiff alleged he missed the deadline because he did not receive the reconsideration notice, but found no indication that the notice was returned as undeliverable or otherwise not received. 3 at 116 17]. [DE 8- Accordingly, the ALJ determined that Plaintiff did not establish good cause for missing the deadline to request a hearing and dismissed his hearing request. 17]. [DE 8-3 at 116 On July 30, 2013, Plaintiff requested Appeals Council review of the ALJ s Dismissal Order. [DE 8-3 at 118 19]. The Appeals Council denied the request for review on August 19, 2013. [DE 8-3 at 120 21]. The Appeals Council did not inform Plaintiff that of any appeal rights. Judicial decision hearing. of review the is available Commissioner of [DE 8-3 at 120 21]. under Social the act Security for made a final after a Weinberger v. Salfi, 422 U.S. 749, 763 (1975); Hilmes v. Sec y of Health and Human Servs., 983 F.2d 67, 70 (6th Cir. 1993) (citation omitted) ( In the absence of a hearing, a district court is deprived of jurisdiction to review the Secretary s decision. ). As set forth in the regulations, a claimant must complete a fourstep administrative review capable of judicial review. process to obtain a final decision Scheweiker v. Chilicky, 487 U.S. 412, 424 (1988). If a claimant does not pursue administrative appeal rights, the administrative binding. See 20 416.1421, C.F.R. 416.1455. §§ determination 404.905, Plaintiff did 3 or 404.921, not decision 404.955, complete the becomes 416.1405, available administrative appeal process because he failed to timely request a hearing and did not provide good cause for his failure to do so. Because his request was dismissed as untimely, Plaintiff did not receive a final decision on the merits of his claim following a hearing and this Court does not have jurisdiction to review the Commissioner s decision denying the hearing in this instance. Although exceptional circumstances may justify the waiver of administrative exhaustion required under § 405 (g), Plaintiff has not set forth any such exceptional circumstances in this instance. See Heckeler v. Ringer, 466 U.S. 602, 618 (1984). the regulations specifically provide that a Additionally, ruling denying a request to extend a time period for seeking review is not an initial determination and may be subject to the administrative appeals process, but is not subject to judicial review. 20 C.F.R. §§ 404.903(j), 416.1403(j). Accordingly, IT IS ORDERED that the Commissioner s Motion to Dismiss [DE 8] is GRANTED. This the 16th day of April, 2014. 4
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