from the United States District Court for the Eastern
District of Kentucky at Lexington. No. 5:16-cv-00003-David L.
Bunning, District Judge.
Wolodymyr Cybriwsky, Prestonburg, Kentucky, for Appellant.
H. Holland, SOCIAL SECURITY ADMINISTRATION, Denver, Colorado,
Before: MERRITT, GRIFFIN, and DONALD, Circuit Judges.
MERRITT, CIRCUIT JUDGE.
Lee Smith filed an application for supplemental security
income resulting from disability. A hearing was conducted
before an administrative law judge ("ALJ"). The ALJ
issued an unfavorable decision, finding that Smith was not
disabled under the Social Security Act. The notice of
decision stated that Smith had sixty days to file a written
appeal with the Appeals Council if he disagreed with the
ALJ's decision. Smith's attorney claimed he timely
mailed a request for review to the Appeals Council, but was
unable to provide any independent evidence of this. The
Social Security Administration did not receive the request
until approximately four months after the time for appeal had
expired. Finding no good cause for the untimeliness, the
Appeals Council dismissed the appeal. Smith subsequently
filed a civil complaint seeking review of the Appeals
Council's dismissal of his untimely request for review.
The district court dismissed his complaint for lack of
jurisdiction and because Smith made no colorable
appeal to this court, Smith alleges that he suffered due
process violations because: (1)his request for Appeals
Council review was timely submitted but dismissed as
untimely, (2)a different ALJ signed his hearing decision than
the one that presided over his hearing, and (3) the ALJ
referenced Smith's 1988 favorable supplemental security
income decision in his unfavorable decision denying income
for new medical conditions, but failed to attach a copy of it
as an exhibit. We hold that an Appeals Council decision to
refrain from considering an untimely petition for review is
not a "final decision" subject to judicial review
in federal court. Further, for the reasons explained below,
each of Smith's due process arguments fail. Therefore, we
AFFIRM the order of the district court.
FACTUAL AND PROCEDURAL BACKGROUND
September 18, 1987, Smith filed an application for
supplemental security income resulting from disability. On
October 13, 1988, an ALJ issued a favorable decision. Smith
received benefits until 2004, when he was found to be over
the resource limit.
filed another application for supplemental security income on
August 7, 2012, alleging additional medical conditions as a
result of his original disability. The claim was initially
denied, and denied again upon reconsideration.
timely filed a request for a hearing before an ALJ. A hearing
was conducted by videoconference before ALJ Robert Bowling on
February 18, 2014. On March 26, 2014, ALJ Don Paris signed a
decision on behalf of ALJ Bowling denying Smith's claim.
Pursuant to the governing regulations, Smith had sixty days
to appeal the decision to the Appeals Council. He claims that
he mailed a written request for review to the Appeals Council
on April 24, 2014. On September 21, 2014, Smith faxed a
correspondence to the Society Security Administration,
inquiring as to the status of his appeal, and attaching a
copy of his written request, which was dated April 24, 2014.
A claims representative informed Smith in a letter dated
October 1, 2014, that his request had not been placed in the
"electronic folder, " and that if the Appeals
Council had received the request, it would have mailed a
receipt. The representative mailed a completed request for
review form to the Appeals Council along with Smith's
written request for review. The representative informed Smith
that his appeals request was filed as of that day, October 1,
2014. On November 6, 2015, the Appeals Council dismissed the
request for review as untimely, having found no good cause to
extend the time for filing because Smith's attorney could
not provide evidence indicating that it was sent within the
filed a civil action seeking review of the Appeals
Council's dismissal. Smith alleged in his complaint that
the Appeals Council improperly dismissed his request for
review and that he suffered due process violations. The
Commissioner moved to dismiss the complaint for lack of
subject matter jurisdiction, and alternatively, for failure
to state a claim. The district court determined that there
was no judicial review available because the Appeals
Council's dismissal of Smith's request for appeal as
untimely did not constitute a final decision and Smith made
no colorable constitutional claims. It subsequently granted
the Commissioner's motion. Smith filed a motion for
relief from the court's order, which the court denied. He