United States District Court, D. Maryland
REPORT AND RECOMMENDATIONS
Stephanie A. Gallagher, United States Magistrate Judge.
to Standing Order 2014-01, the above-captioned case has been
referred to me to review the parties' dispositive motions
and to make recommendations pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 301.5(b)(ix). Plaintiff Billy
Graham, Jr. filed this appeal of the denial of his claims for
disability benefits by the Social Security Administration
(“SSA”). The SSA has filed a Motion to Dismiss
for lack of subject matter jurisdiction pursuant to
Fed.R.Civ.P. 12(b)(1), on the grounds that Mr. Graham failed
to exhaust his administrative remedies prior to filing his
complaint. [ECF No. 10]. Despite receiving a Rule 12/56
letter advising him of the potential consequences of a
failure to oppose the Commissioner's Motion, (ECF No.
11), Plaintiff has not filed a response. 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.
December 11, 2014 and February 10, 2015, Mr. Graham
protectively filed for disability benefits with the SSA. [ECF
No. 10-2, ¶ 3a]. His claims were denied initially and on
reconsideration. Id. An Administrative Law Judge
(“ALJ”) held a hearing on November 22, 2016, and
issued an unfavorable decision on December 20, 2016. [ECF No.
10-2, ¶ 3b]. The accompanying “Notice of
Decision” informed Mr. Graham that an appeal had to be
filed with the Appeals Council within 60 days of the notice
(plus a 5 day grace period for mailing). [ECF No. 10-2, Exh.
9]. Mr. Graham's appeal therefore had to be filed on or
before February 23, 2017. Mr. Graham instead filed his
request for review on March 6, 2017. [ECF No. 10-2, Exh. 10].
The Appeals Council sent Mr. Graham a letter notifying him of
the late filing, and inviting him to explain why the request
had been filed untimely. [ECF No. 10-2, Exh. 11]. Mr. Graham
did not respond, and the Appeals Council dismissed the
untimely request on June 22, 2017. [ECF No. 10-2, Exh. 12].
Standard of Review
to dismiss for lack of subject matter jurisdiction are
governed by Rule 12(b)(1) of the Federal Rules of Civil
Procedure. 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) (quoting
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 (quoting Richmond, Fredericksburg & Potomac R.
Co. v. United States, 945 F.2d 765, 768 (4th Cir.
contends that this Court does not have jurisdiction over Mr.
Graham's claim because he failed to exhaust
administrative remedies and is not appealing from a
“final decision.” See Def. Mot. Dismiss.
Under sections 205(g) and (h) of the Social Security Act, 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). With
respect to Social Security cases, the Commissioner has set
forth administrative procedures which must be exhausted to
achieve a final decision. See 20 C.F.R. §§
404.900-404.906, 416.1400-404.1499. The final step in that
process is Appeals Council review. See 20 C.F.R.
§§ 404.967-404.983, 416.1444-416.1465; see also
Bowen v. Yuckert, 482 U.S. 137, 142 (1987) (outlining
three-step process for exhausting administrative remedies, in
which the third step is to “seek review by the Appeals
Mr. Graham's untimely request for review precluded the
Appeals Council from addressing the case on the merits,
binding precedent requires that Mr. Graham's appeal be
dismissed. The Fourth Circuit has expressly 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.”). This case stands in
precisely the same procedural posture as Adams.
Thus, in the absence of a timely request for review by the
Appeals Council, administrative remedies have not been
exhausted, and this Court lacks jurisdiction to determine Mr.
reasons set forth above, I respectfully recommend that:
Court GRANT Defendant's Motion to Dismiss, (ECF No. 10);
Court CLOSE this case.
objections to this Report and Recommendations must be served
and filed within fourteen (14) days, pursuant to Federal Rule