United States District Court, D. Massachusetts
Jeffrey Robbins, Plaintiff: Francis M. Jackson, LEAD
ATTORNEY, PRO HAC VICE, Jackson & MacNichol, South Portland,
ME; Marc D. Pepin, LEAD ATTORNEY, Jackson & MacNichol, South
Carolyn W Colvin, Defendant: Anita Johnson, LEAD ATTORNEY,
United States Attorney's Office, Boston, MA.
Social Security Administration, Interested Party: Thomas D.
Ramsey, LEAD ATTORNEY, Office of the General Counsel, Social
Security Administration, Boston, MA.
AND ORDER RE: MOTION TO DISMISS FOR LACK OF SUBJECT MATTER
JURISDICTION (DOCKET ENTRY # 13)
B. BOWLER, United States Magistrate Judge.
before this court is a motion to dismiss this social security
disability action for lack of subject matter jurisdiction
filed by defendant Carolyn W. Colvin, Acting Commissioner of
the Social Security Administration (" Commissioner"
), under Fed.R.Civ.P. 12(b)(1) (" Rule 12(b)(1)" ).
(Docket Entry # 13). The Commissioner submits this court
lacks jurisdiction to review a decision by the Appeals
Council denying plaintiff Jeffrey Robbins ("
plaintiff" ) an extension of time to file a request for
review of a decision by an administrative law judge ("
Plaintiff contends that neither he nor his attorney received
the ALJ's decision until after the 60 day appeal period
expired. In opposing the motion, plaintiff provides
affidavits from his attorney and office staff attesting that
the office did not receive the ALJ's August 19, 2013
decision until an office case manager retrieved it on
November 11, 2013, from an electronic records portal
maintained by the Social Security Administration ("
SSA" ). Plaintiff promptly filed a motion seeking an
extension of time to file an appeal of the ALJ's
decision, which the Appeals Council denied. Plaintiff filed
this action thereafter under 42 U.S.C. § 405(g) and,
notably, " the Due Process Clause of the Fifth
Amendment." (Docket Entry # 1).
April 14, 2011, plaintiff, at the age of 21, filed an
application for child insurance benefits on the basis of a
disability and the earnings record of his mother. On the same
day, plaintiff filed an application for supplemental security
income. (Docket Entry # 14-1, pp. 8, 32). On July 29, 2011,
the state agency denied the applications. On August 8, 2011,
plaintiff filed a request for reconsideration within the 60
day time period. (Docket Entry # 14-1, pp. 8-9, 30); 20
C.F.R. § § 404.909, 416.1409. On October 19, 2011,
the Commissioner denied reconsideration. (Docket Entry #
14-1, pp. 9, 30); 20 C.F.R. § § 404.920, 416.1420.
On November 1, 2011, plaintiff filed a timely request for a
hearing before the ALJ. (Docket Entry # 14-1, pp. 9, 30); 20
C.F.R. § § 404.933, 416.1433. The ALJ conducted an
evidentiary hearing on July 23, 2013. (Docket Entry # 14-1,
p. 9). On August 19, 2013, the ALJ issued a written decision
and determined that plaintiff was not disabled. (Docket Entry
# 14-1, pp. 8-23); 20 C.F.R. § § 404.953, 416.1453.
dictate that the ALJ " shall mail a copy of the decision
to all the parties at their last known address." 20
C.F.R. § § 404.953(a), 416.1453(a). Where, as here,
plaintiff had an attorney, the regulations also require the
SSA to send plaintiff's attorney notice of the decision.
20 C.F.R. § 404.1715 (" We shall send your
representative--(1) Notice and a copy of any administrative
action, determination, or decision" ) (emphasis added);
20 C.F.R. § 416.1515.
ALJ's decision is ordinarily binding on the parties
unless a party " request[s] a review of the decision by
the Appeals Council within the stated time period." 20
C.F.R. § § 404.955, 416.1455; see also 20 C.F.R.
§ § 404.900(a)(4), 416.1400(a)(4). The stated time
period to file a request for review by the Appeals Council is
60 days from receipt of the notice. 20 C.F.R. § §
404.968(a)(1), 416.1468. As stated in the regulations,
plaintiff has " 60 days after the date [plaintiff]
receive[s] notice of the hearing decision or dismissal"
of a request for a hearing to file a written request for
Appeals Council review. 20 C.F.R. § §
404.968(a)(1), 416.1468; see 20 C.F.R. § § 404.967,
416.1467. Receipt as opposed to the mailing date of the
notice is the operative guideline. 20 C.F.R. § §
404.968(a)(1), 416.1468. Regulations define the date a
plaintiff receives notice as " 5 days after the date on
the notice, unless you show us that you did not receive it
within the 5-day period."  20 C.F.R. § §
404.901, 416.1401. This same presumption
applies to receipt of the ALJ's decision bye
plaintiff's attorney. 20 C.F.R. § § 404.1703,
plaintiff may also request an extension of the 60 day time
period to file a request for Appeals Council review. 20
C.F.R. § § 404.968(a)(1), 416.1468. Filed with the
Appeals Council, the written request " must give the
reasons why the request for review was not filed within the
stated time period." 20 C.F.R. § § 404.968,
416.1468. If plaintiff shows " good cause for missing
the deadline, the time period will be extended."
20 C.F.R. § § 404.968, 416.1468. The regulations
define " good cause." 20 C.F.R. § §
404.911, 416.1411. One of the nine examples of circumstances
" where good cause may exist" is that the plaintiff
" did not receive notice of the determination or
decision."  20 C.F.R. § § 404.911,
the electronic file maintained by the Office of Disability
Adjudication and Review applicable to plaintiff's
applications includes the ALJ's August 19, 2013 decision
along with a notice of the unfavorable decision dated August
19, 2013. The notice is addressed to plaintiff at 22 Wall
Street in Brockton, Massachusetts with a courtesy copy to
plaintiff's counsel at his current and correct address in
Portland, Maine. Consistent with the regulations, the notice
explained that plaintiff must file a written appeal with the
Appeals Council " within 60 days of the date you get
this notice" and the " Appeals Council assumes you
got this notice 5 days after the date of the notice unless
you show you did not get it within the 5-day period."
(Docket Entry # 14-1, p. 5).
is no dispute that the Appeals Council did not receive a
request for review within the 65 day time period after the
ALJ's August 19, 2013 decision, i.e., October 23, 2013.
Rather, by letter dated November 19, 2013, plaintiff's
counsel wrote to the Appeals Counsel and requested an
extension of time to file an appeal of the ALJ's decision
with the Appeals Council. (Docket Entry # 14-1, p. 24). The
letter stated the reasons for not filing the request for
review in a timely manner, namely, that plaintiff's
counsel did not receive the ALJ's decision until November
14, 2013, and that the " decision was not
sent to his office at the time it was issued."
(Docket Entry # 14-1, p. 24). On November 23, 2013,
plaintiff's counsel filed a request for Appeals Council
August 11, 2014, the Appeals Council "
dismissed [the] request for review." (Docket
Entry # 14-1, pp. 26-27) (emphasis added). The decision
stated that, " The request for review filed on November
23, 2013, was not filed within 60 days from the date notice
of the decision was received" and the date of receipt
" is presumed to be five (5) days after the date of such
notice unless a reasonable showing to the contrary is
made." (Docket Entry # 14-1, p. 27). The decision found
" no good cause to extend the time for filing"
because the ALJ's " decision was mailed to the same
address listed on the attorney letterhead and the same
address listed on the request for review." (Docket Entry
# 14-1, p. 27).
accompanying cover letter explained that, " Under our
rules, the dismissal of a request for review is final and not
subject to further review." (Docket Entry # 14-1, p.
26). The applicable regulations confirm that, " The
Appeals Council will dismiss your request for review if you
did not file your request within the stated period of time
and the time for filing has not been extended." 20
C.F.R. § § 404.971, 416.1471. Further, " The
dismissal of a request for Appeals Council review is
binding and not subject to further review." 20 C.F.R.
§ § 404.972, 416.1472 (emphasis added).
regulations explain that, when presented with a request for
review, the Appeals Council has three options. It " may
deny or dismiss the request for review,
or it may grant the request and either issue a
decision or remand the case to an administrative law
judge." 20 C.F.R. § § 404.967, 416.1467
(emphasis added). Whereas the regulations dictate that a
dismissal of a request for review is " not subject to
further review," 20 C.F.R. § § 404.972,
416.1472, a denial of a request for review or a decision by
the Appeals Council " is binding unless" the
plaintiff " or another party file[s] an action in
Federal district court within 60 days after the date you
receive notice of the Appeals Council's action." 20
C.F.R. § § 404.981, 416.1481 .
filed this action within 60 days of receipt of the Appeals
Council's August 11, 2014 dismissal. The statute allows a
plaintiff judicial review " after any final
decision of the Commissioner of Social Security made after a
hearing . . .." 42 U.S.C. § 405(g) (emphasis
added). The corresponding regulations state that, " If
you are dissatisfied with our final decision, you may request
judicial review by ...