UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

SHIRLEY A. CARTER,

Plaintiff,

v.

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

_____________________________________/

Case No. 15-10039

George Caram Steeh

United States District Judge

Michael Hluchaniuk

United States Magistrate Judge

REPORT AND RECOMMENDATION GRANTING 

DEFENDANT’S MOTION TO DISMISS (Dkt. 11)

I. PROCEDURAL HISTORY

A. Proceedings in this Court

On January 7, 2015, plaintiff filed the instant suit seeking judicial review of

the Commissioner’s unfavorable decision disallowing benefits. (Dkt. 1). Pursuant

to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), this matter was referred to

the undersigned for the purpose of reviewing the Commissioner’s decision

denying plaintiff’s claim. (Dkt. 3). 

This matter is before the Court on defendant’s motion to dismiss for lack of

subject matter jurisdiction. (Dkt. 11). Plaintiff filed a response on May 8, 2015. 

(Dkt. 13). Defendant filed a reply brief on May 13, 2015. (Dkt. 14). This matter

is now ready for report and recommendation.

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B. Administrative Proceedings

Plaintiff first filed an application for disability benefits on May 23, 2011.

(Dkt. 11-1, Pg ID 41). Plaintiff’s application was denied on initial determination.

Id. Plaintiff timely requested a hearing before an Administrative Law Judge (ALJ)

on or about June 29, 2011. (Dkt. 11-1, Pg ID 41-42). On December 19, 2011, the

ALJ issued an unfavorable decision. (Dkt. 11-1, Pg ID 43-46). The ALJ’s

decision indicated that plaintiff had sixty-five days from the date of the

unfavorable decision in which to file an appeal. Id. Plaintiff requested review by

the Appeals Council on April 13, 2012. (Dkt. 11-1. Pg ID 48). On April 11, 2013,

the Appeals Council notified plaintiff that her request for review was filed late and

instructed her to submit an explanation for the late filing. Id. The Appeals Council

received no correspondence from plaintiff explaining the reason for her late filing.

(Dkt. 11-1, Ex. 3). On July 5, 2013, the Appeals Council dismissed plaintiff’s

request for review because it was untimely filed and plaintiff did not establish

good cause for the late filing. Id. 

For the reasons set forth below, the undersigned RECOMMENDS that the

Commissioner’s motion to dismiss be GRANTED and that this matter be

DISMISSED.

II. PARTIES’ ARGUMENTS

A. The Commissioner’s Motion to Dismiss

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The Commissioner points to Sections 205(g) and (h) of the Social Security

Act, 42 U.S.C. §§ 405(g) and (h), which authorize judicial review in cases arising

under the Social Security Act. According to the Commissioner, those provisions

also make clear that they are the exclusive jurisdictional basis for judicial review. 

Section 205(g) provides:

Any individual, after any final decision of the

Commissioner of Social Security made after a hearing to

which he was a party, irrespective of the amount in

controversy, may obtain a review of such decision by a

civil action commenced within sixty days after the

mailing to him of notice of such decision or within such

further time as the Commissioner of Social Security may

allow.

Section 205(h) then provides:

No findings of fact or decision of the Commissioner of

Social Security shall be reviewed by any person,

tribunal, or governmental agency except as herein

provided. No action against the United States, the

Commissioner of Social Security or any officer or

employee thereof shall be brought under section 1331 or

1346 of Title 28, United States Code, to recover on any

claim arising under this title.

Thus, the Commissioner contends that Congress has explicitly stated that, in

claims arising under the Act, judicial review is permitted only in accordance with

§ 205(g) of the Act. Accordingly, § 205(g) of the Act is the exclusive

jurisdictional basis for judicial review in cases arising under the Act. The

Commissioner maintains that this Court lacks jurisdiction in this case because

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plaintiff has not identified any final decision of the Commissioner subject to

judicial review under § 205(g) of the Act with respect to her application for

disability benefits.

Here, the Commissioner points out that plaintiff filed a request for a review

of the unfavorable decision more than 65 days after the date that the ALJ issued

his decision on her disability claim. (Dkt. 11). Plaintiff does not deny receiving

the notice of unfavorable decision within five days of December 19, 2011. Id. 

Plaintiff provided no explanation for the late filing of her request for review and

thus, did not establish good cause for missing the deadline to request review of

the ALJ’s unfavorable decision. (Dkt. 11). According to the Commissioner, the

notice of dismissal issued by the Appeals Council in this case was not a final

decision for purposes of judicial review. See Hilmes v. Sec’y of Health & Human

Servs., 983 F.2d 67, 69 (6th Cir. 1993)(denying request for a hearing on the

grounds of untimeliness is not a final decision and is not judicially reviewable);

see also Brandyburg v. Sullivan, 959 F.2d 555 (5th Cir. 1992) (“Courts have been

virtually unanimous in holding . . . that these determinations of whether to extend

for cause the limitations periods prescribed by regulation are not ‘final decisions’

within the meaning of section 405(g) and are hence unreviewable.”); Bacon v.

Sullivan, 969 F.2d 1517, 1520-21 (3d Cir. 1992); Matlock v. Sullivan, 908 F.2d

492, 493 (9th Cir. 1990); Adams v. Heckler, 799 F.2d 131, 133 (4th Cir. 1986);

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Smith v. Heckler, 761 F.2d 516, 518-19 (8th Cir 1985). As such, there is no

jurisdiction under 42 U.S.C. § 405(g) to review the decision reached by the ALJ in

the instant case. Because plaintiff has not exhausted her administrative remedies

before filing this action, the Commissioner maintains that her complaint should be

dismissed.

B. Plaintiff’s Response

On May 8, 2105, plaintiff, proceeding pro se, filed a one-page letter

opposing the Commissioner's motion. Plaintiff's letter complains that her monthly

SSI payments were cut from $727 to $464 because of a $252 monthly benefit her

husband was receiving from the Veterans’ Administration. (Dkt. 13). Plaintiff

further argues that this reduction of benefits violates her constitutional rights of

“due process of Law and equal rights under Law.” Id.

C. The Commissioner’s Reply

In its reply brief, the Commissioner notes that plaintiff alleges her benefits

were wrongly reduced as opposed to wrongly denied. (Dkts. 13, 14). The

Commissioner surmises from this allegation that plaintiff was awarded benefits on

a subsequent application. The Commissioner argues that, if this is the case,

plaintiff’s complaint is still subject to dismissal for lack of subject matter

jurisdiction in that plaintiff has not identified any final decision that is subject to

judicial review. See 42 U.S.C. § 405(g)-(h) (judicial review is limited to

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“any final decision of the Commissioner made after a hearing to which [s]he was a

party”);Weinberger v. Salfi, 422 U.S. 749, 763-66 (1975) (courts have jurisdiction

to review only final decisions). 

The Commissioner also contends that plaintiff’s invocation of due process

rights does not advance her claim. (Dkts 13, 14). Although the Social Security

Act does not constrict the Court’s authority to decide a colorable due process

claim, see Cottrell v. Sullivan, 987 F.2d 342, 345 (6th Cir. 1992), according to the

Commissioner, plaintiff does not allege any facts or circumstances giving rise to

such a colorable claim. (Dkt. 14). The Commissioner argues that “mere

incantation of the Constitution is insufficient to raise a constitutional issue.” 

Vanderpool v. Comm’r of Soc. Sec., 2013 WL 5450276, at *12 (E.D. Mich. Sept.

30, 2013); see Aichai Hu v. Holder, 335 F. App’x 510, 514 (6th Cir. 2009) (“A

petitioner may not create the jurisdiction that Congress chose to remove simply by

cloaking an abuse of discretion argument in constitutional garb.”); cf. Ingram v.

Sec’y of Health & Human Servs., 830 F.2d 67, 67 (6th Cir. 1987) (“Simply

couching in constitutional language what is in reality an argument that the

Secretary abused his discretion in refusing to re-open a claim, does not convert the

argument into a colorable constitutional challenge.”).

III. ANALYSIS AND CONCLUSION

If a claimant fails to timely request review from the Appeals Council, there

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is simply no final decision, and as a result, no judicial review in most cases. Sims

v. Apfel, 530 U.S. 103, 107, 120 S.Ct. 2080, 147 L. Ed. 2d 80 (2000)(citing 20

C.F.R. § 404.900(b) and Bowen v. City of New York, 476 U.S. 467, 482-83, 106 S.

Ct. 2022, 90 L. Ed. 2d 462 (1986)). Although an otherwise unappealable

administrative decision may be reviewable on independent constitutional grounds,

absent any colorable constitutional claim that is independent of the alleged

entitlement to benefits, a federal court has no jurisdiction to review the SSA

Appeals Council’s decision not to allow untimely review or otherwise reopen a

case. Leach v. Comm’r of Soc. Sec., 145 F.3d 1332 (6th Cir. 1998)(citing Cottrell

v. Sullivan, 987 F.2d 342, 345 (6th Cir.1992); see also, Ferguson v. Comm’r of

Soc. Sec., 2008 WL 243955 at *4 (W.D. Mich., Jan. 28, 2008). As the Sixth

Circuit stated in a similar case,

“plaintiff alleges that her due process rights were violated. But

plaintiff will not now be heard to complain that she was somehow

denied the opportunity to pursue her administrative remedies when in

fact she simply failed to pursue those remedies in a timely

manner...Plaintiff's challenge to the order of the [SSA Appeals

Council] does not amount to a constitutional claim.”

Id. (quoting Coleman v. Comm'r of Soc. Sec., 125 F.3d 855, 1997 WL 539674, at

*3)(emphasis in Ferguson).

Here, as in Ferguson, the record discloses no colorable constitutional claim

that would authorize this court to review the Appeals Council’s determination that

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plaintiff failed, without good cause, to seek Council review within sixty days of

receiving the ALJ’s decision. Accordingly, the undersigned finds that this court

lacks subject-matter jurisdiction to review the ALJ’s decision regarding benefits or

the Appeals Council’s determination that plaintiff’s request for review was

untimely without good cause. 

IV. RECOMMENDATION

For the reasons set forth above, the undersigned RECOMMENDS that the

Commissioner’s motion to dismiss be GRANTED and that this matter be

DISMISSED.

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to file any objections within 14 days of service,

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule

72.1(d). Failure to file specific objections constitutes a waiver of any further right

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health and

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some

issues but fail to raise others with specificity will not preserve all the objections a

party might have to this Report and Recommendation. Willis v. Sec’y of Health

and Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of

Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule

72.1(d)(2), any objections must be served on this Magistrate Judge.

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Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”

etc. Any objection must recite precisely the provision of this Report and

Recommendation to which it pertains. Not later than 14 days after service of an

objection, the opposing party may file a concise response proportionate to the

objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d). 

The response must specifically address each issue raised in the objections, in the

same order, and labeled as “Response to Objection No. 1,” “Response to Objection

No. 2,” etc. If the Court determines that any objections are without merit, it may

rule without awaiting the response.

Date: July 22, 2015 s/Michael Hluchaniuk

Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on July 22, 2015, I electronically filed the foregoing paper with

the Clerk of the Court using the ECF system, which will send electronic

notification to all counsel of record and that I have mailed by United States Postal

Service to the following non-ECF participant: Shirley A. Carter, 20800 Wyoming,

Apt. 415, Ferndale, MI 48220.

s/Tammy Hallwood

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

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