United States District Court, D. Maryland
REPORT AND RECOMMENDATIONS
Stephanie A. Gallagher United States Magistrate Judge.
Shawn Craig Lee filed an action pro se under the
Social Security Act, 42 U.S.C. § 405(g), seeking review
of the denial of his Social Security disability claim by the
Social Security Administration (“SSA”). The SSA
has filed a motion to dismiss for lack of subject matter
jurisdiction (“motion”) pursuant to Federal Rule
of Civil Procedure 12(b)(1), on the grounds that Mr. Lee
failed to exhaust his administrative remedies prior to filing
his complaint. [ECF No. 9]. Pursuant to Standing Order
2014-01, this motion is referred to me for a Report and
Recommendations. [ECF No. 3]. A Rule 56 letter was sent to
Mr. Lee on June 15, 2017, explaining the potential
consequences of failing to respond to the motion to dismiss,
but no response was filed. [ECF No. 10]. No hearing is deemed
necessary. See Local Rule 105.6 (D. Md. 2016). For
the reasons stated below, I recommend that the SSA's
motion to dismiss be granted.
October, 2013, Mr. Lee filed for Supplemental Security Income
disability benefits with the SSA. [ECF No. 9-2, at 2]. His
claim was denied initially on January 31, 2014, and on
reconsideration on April 16, 2014. Id. at 2-3. Mr.
Lee then filed a request for a hearing on April 23, 2014,
which was dismissed by an Administrative Law Judge
(“ALJ”) on June 22, 2015 after Mr. Lee failed to
appear at a scheduled hearing. Id. at 3, [ECF No.
9-2, Ex. 6]. After Mr. Lee again requested review, the
Appeals Council remanded the case to the ALJ for a hearing.
[ECF No. 9-2, at 3]. This time, the hearing took
place, and on March 9, 2017, the ALJ issued an unfavorable
decision denying benefits. Id.; [ECF No. 9-2, Ex.
9]. Mr. Lee did not file a request for review of the
unfavorable decision with the Appeals Council. [ECF No. 9-2,
at 3]. Instead, on April 5, 2017, Mr. Lee filed the instant
action in this Court. [ECF No. 1].
Standard of Review
to dismiss for lack of subject matter jurisdiction are
governed by Fed.R.Civ.P. 12(b)(1). While the plaintiff bears
the burden of proving that the court has jurisdiction over
the claim or controversy at issue, a 12(b)(1) motion should
only be granted if the “material jurisdictional facts
are not in dispute and the moving party is entitled to
prevail as a matter of law.” Ferdinand-Davenport v.
Children's Guild, 742 F.Supp.2d 772, 777 (D. Md.
2010); see also Evans v. B.F. Perkins Co., a Div. of
Standex Int'l Corp., 166 F.3d 642, 647 (4th Cir.
1999). In a motion to dismiss for lack of subject matter
jurisdiction, the pleadings should be regarded as “mere
evidence on the issue, ” and courts may “consider
evidence outside the pleadings without converting the
proceeding to one for summary judgment.”
Evans, 166 F.3d at 647.
argues that this Court does not have jurisdiction over Mr.
Lee's claim because he failed to exhaust his
administrative remedies and is not appealing from a final
order. Under Social Security Act sections 205(g) and (h), an
individual may only obtain judicial review of the
Commissioner's “final” decision after he has
exhausted all administrative remedies. 42 U.S.C. §§
405(g)-(h). Because there is no formula for determining
whether a decision is final, the meaning of that term is left
to federal and state agencies to define by regulation.
Weinberger v. Salfi, 422 U.S. 749, 766 (1975).
Section 405(g) of the Social Security Act provides that
“any individual, after any final decision of the
Commissioner made after a hearing to which he was a party . .
. may obtain a review of such decision by a civil action . .
.” 42 U.S.C. § 405(g). This Court must determine
whether the ALJ's unfavorable ruling constitutes a
“final decision” that may be reviewed in federal
court, even though Mr. Lee did not first seek Appeals Council
Security regulations define “final decision” as a
decision made after completion of a four-step administrative
process. Specifically, the regulations require: (1) an
initial determination; (2) reconsideration; (3) a hearing
before an ALJ; and (4) review by the Appeals Council. 20
C.F.R. § 416.1400(a). In fact, the notice sent to Mr.
Lee along with the ALJ's unfavorable decision stated:
If you do not appeal and the Appeals Council does not review
my decision on its own, my decision will become final. A
final decision can be changed only under special
circumstances. You will not have the right to Federal court
[ECF No. 9-2, Ex. 9].
Fourth Circuit has not considered any cases in the exact
procedural posture of this case, where all of the other
procedural steps were exhausted but the claimant did not seek
Appeals Council review. However, the Fourth Circuit has
determined that a claimant's administrative remedies were
not exhausted where she belatedly filed a request for review
by the Appeals Council, and the Appeals Council therefore
declined to review her claim. See Adams v. Heckler,
799 F.2d 131, 133 (4th Cir. 1986) (“We therefore affirm
the district court's conclusion that no final decision by
the Secretary has been presented by the facts herein and thus
no jurisdiction for judicial review of the merits of
Adams' disability claim exists.”). If no final
decision is presented where the Appeals Council is asked
belatedly to review a case, then it follows logically that no
final decision is presented where, as here, the Appeals
Council is never asked to perform review. Most other federal
courts that considered this precise issue have reached the
same conclusion, and have determined that a claimant has not
exhausted his administrative remedies if he has failed to
seek review by the Appeals Council. See, e.g., Puente v.
Callahan, No. 97-1056, slip op. at 2 (10th Cir. July 18,
1997) (“Examining plaintiff's SSI claim under
§ 405(g), we agree that plaintiff failed to exhaust the
claim because she did not seek review before the Appeals
Council.”); Goff v. Sullivan, No.
CV-90-955-MFM, slip op. at 2 (9th Cir. Sept. 2, 1992)
(“Because Goff did not appeal the ALJ's adverse
decision to the Appeals Council, he failed to exhaust his
administrative remedies in a timely manner and could not seek
judicial review in district court.”); Alexander v.
Sullivan, Civ. A. No. 92-1950, 1992 WL 315105, at *1
(E.D. La. Oct. 16, 1992) (“In situations where a claim
has proceeded to a hearing before an administrative law judge
and has been denied on the merits, the Secretary's
‘final decision' comes only after the claimant has
sought review by the Appeals Council.”); Hylton v.
Bowen, No. 87-0091-CV-W-8, 1987 WL 123574, at *3 (W.D.
Mo. July 31, 1987) (“Thus, there cannot be a
‘final decision' of the Secretary when petitioner
has failed to file a timely request for Appeals Council
review as Hylton has failed to do.”); Goodreau v.
Bowen, 647 F.Supp. 1409 (W.D. Pa. 1986) (“Review
by the Appeals Council is necessary to obtain a ‘final
decision' which is subject to review.”). In light
of the Fourth Circuit's analysis in Adams and
the general consensus among other federal courts, the law as
determined by Congress and the Commissioner requires Appeals
Council review before a “final decision” can be
obtained. Since Mr. Lee sought no such review, he did not
exhaust his administrative remedies and this Court lacks
jurisdiction over his appeal.
foregoing reasons, I recommend that the Commissioner's
motion to dismiss, [ECF No. 9], be granted. I direct the
Clerk to mail a copy of this Report and Recommendations to
Plaintiff at the address listed on the docket. Any objections
to this Report and Recommendations must be served and filed
within fourteen (14) days, pursuant to Fed.R.Civ.P. 72(b) and
Local Rule 301.5.b.