United States District Court, D. Maryland
Stephanie A. Gallagher, United States Magistrate Judge
22, 2017, Plaintiff Charlena Montgomery (“Ms.
Montgomery”) petitioned this Court to review the Social
Security Administration's final decisions regarding her
claims for “overpayment” and “Extra Help In
Medicare Prescription Drug Assistance.” [ECF No. 1].
Currently pending is the Commissioner's Partial Motion to
Dismiss Ms. Montgomery's Complaint. [ECF No. 14]. Ms.
Montgomery has not filed a response. I find that no hearing is
necessary. See Local Rule 105.6 (D. Md. 2016). For
the reasons explained below, I will grant the
Commissioner's Partial Motion to Dismiss.
April 25, 2017, the Medicare Appeals Unit at the Social
Security Administration (“SSA”) mailed Ms.
Montgomery notice of its decision denying her claim for Help
with Medicare Prescription Drug Plan Costs. [ECF No. 14-3,
Cousins Decl., Exh. 12]. That notice also advised Ms.
Montgomery of her statutory right to commence a civil action
within sixty days from receipt of the notice. Id.;
42 U.S.C. §§ 405(g)-(h). Ms. Montgomery
timely filed this appeal of the Commissioner's final
decision regarding the Medicare issue on June 22, 2017, so
that appeal remains pending.
Ms. Montgomery also referenced “overpayment” as a
basis for her appeal in her Complaint. [ECF No. 1]. On
September 25, 2016, the Commissioner sent a letter to Ms.
Montgomery advising her that she had been overpaid $49,
373.10, which would need to be repaid to the SSA. [ECF No.
14-3, Cousins Decl., Exh. 7]. The letter advised Ms.
Montgomery that she could appeal the determination by filing
a Request for Reconsideration within sixty days. Id.
Subsequently, Ms. Montgomery received letters the SSA sent on
February 6, 2017, May 4, 2017, and June 2, 2017, advising her
that her subsequently awarded benefits would be reduced to
repay the overpayment. [ECF No. 14-3, Cousins Decl., Exh.
9-11]. Each of those letters also described the procedure by
which the decision could be administratively appealed, by
filing a Request for Reconsideration within sixty days.
Id. According to Marie Cousins, the Chief of Court
Case Preparation and Review Branch 2 of the Office of
Appellate Operations at the SSA, Ms. Montgomery has not filed
an administrative appeal of any of the overpayment-related
decisions. [ECF No. 14-3, Cousins Decl. ¶ 3(c)].
argues that this Court does not have jurisdiction over Ms.
Montgomery's overpayment claim because she failed to
exhaust her administrative remedies and is not appealing from
a final order. Congress has authorized lawsuits seeking
judicial review of decisions by the Commissioner only under
certain limited conditions. See City of Tacoma v.
Taxpayers of Tacoma, 357 U.S. 320, 336 (1958). 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 she 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.
See 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 Commissioner's unfavorable rulings
regarding overpayment and withholdings constitute
“final decisions” that may be reviewed in federal
court, even though Ms. Montgomery did not first seek
administrative appellate review.
Security regulations set forth a four-step administrative
process for resolution of overpayment claims. First, an
initial determination is made, and after receiving notice,
the allegedly overpaid individual may next proceed to the
second step by requesting reconsideration of the overpayment
decision. See 20 C.F.R. § 404.907. That
reconsideration request must be made within sixty days of the
initial determination of overpayment, although the time may
be extended for good cause. See 20 C.F.R.
§§ 404.909, 404.911. If reconsideration is
requested, the SSA reviews the case and issues written notice
of its reconsideration decision. See 20 C.F.R.
§§ 404.913, 404.922. If the decision remains
unfavorable, the third step is to request a hearing before an
Administrative Law Judge (“ALJ”). See 20
C.F.R. § 404.921. After the hearing, the ALJ issues a
written decision on the overpayment claim, which can be
appealed to the fourth step: the SSA's Appeals Council.
See 20 C.F.R. § 404.955. The Appeals Council
can decide to review the case or deny the request for review.
See Id. Once the Appeals Council has denied the
request for review or reviewed the case and issued a
decision, the allegedly overpaid individual is entitled to
file an action in a federal district court within sixty days
of the decision. See 20 C.F.R. § 404.981.
Ms. Montgomery's overpayment claim only proceeded through
the first of the four steps, since she did not file a Request
for Reconsideration or otherwise seek an administrative
appeal. In a procedurally analogous case involving the denial
of disability benefits by the SSA, the Fourth Circuit has
determined that a claimant's administrative remedies were
not exhausted where the claimant 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
preceding procedural steps are not completed and the Appeals
Council is never asked to perform review. In light of the
Fourth Circuit's analysis in Adams, the law as
determined by Congress and the Commissioner requires Appeals
Council review before a “final decision” can be
obtained. Since Ms. Montgomery sought no such review as to
her overpayment claim, she did not exhaust her administrative
remedies, and this Court lacks jurisdiction over an appeal of
the overpayment decisions.
reasons set forth above, the Commissioner's Partial
Motion to Dismiss, (ECF No. 14), is GRANTED. The case will
proceed only as to the appeal of Plaintiff's Medicare
Prescription Drug Assistance claim. A separate order follows.
 On October 3, 2017, the Clerk's
Office mailed a Rule 12/56 letter to Ms. Montgomery to advise
her of the potential consequences of failure to oppose the