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Smith v. Commissioner of Social Security

United States Court of Appeals, Sixth Circuit

January 26, 2018

Ricky Lee Smith, Plaintiff-Appellant,
v.
Commissioner of Social Security, Defendant-Appellee.

         Appeal from the United States District Court for the Eastern District of Kentucky at Lexington. No. 5:16-cv-00003-David L. Bunning, District Judge.

         ON BRIEF:

          Wolodymyr Cybriwsky, Prestonburg, Kentucky, for Appellant.

          Laura H. Holland, SOCIAL SECURITY ADMINISTRATION, Denver, Colorado, for Appellee.

          Before: MERRITT, GRIFFIN, and DONALD, Circuit Judges.

          OPINION

          MERRITT, CIRCUIT JUDGE.

         Ricky 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 constitutional claims.

         On 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.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On 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.

         Smith 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.

         Smith 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.[1] 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 appropriate time.

         Smith 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 now appeals.

         II. ...


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