RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 18a0017p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

RICKY LEE SMITH, 

Plaintiff-Appellant, 

v. 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant-Appellee. 

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No. 17-5809 

Appeal from the United States District Court 

for the Eastern District of Kentucky at Lexington. 

No. 5:16-cv-00003—David L. Bunning, District Judge. 

Decided and Filed: January 26, 2018 

Before: MERRITT, GRIFFIN, and DONALD, Circuit Judges. 

_________________ 

COUNSEL 

ON BRIEF: Wolodymyr Cybriwsky, Prestonburg, Kentucky, for Appellant. Laura H. Holland, 

SOCIAL SECURITY ADMINISTRATION, Denver, Colorado, for Appellee. 

_________________ 

OPINION 

_________________ 

 MERRITT, Circuit Judge. Ricky Lee Smith filed an application for supplemental 

security income resulting from disability. A hearing was conducted before an administrative law 

judge (“ALJ”). The ALJ issued an unfavorable decision, finding that Smith was not disabled 

under the Social Security Act. The notice of decision stated that Smith had sixty days to file a 

written appeal with the Appeals Council if he disagreed with the ALJ’s decision. Smith’s 

>
No. 17-5809 Smith v. Comm’r of Soc. Sec. Page 2

attorney claimed he timely mailed a request for review to the Appeals Council, but was unable to 

provide any independent evidence of this. The Social Security Administration did not receive 

the request until approximately four months after the time for appeal had expired. Finding no 

good cause for the untimeliness, the Appeals Council dismissed the appeal. Smith subsequently 

filed a civil complaint seeking review of the Appeals Council’s dismissal of his untimely request 

for review. The district court dismissed his complaint for lack of jurisdiction and because Smith 

made no colorable constitutional claims. 

 On appeal to this court, Smith alleges that he suffered due process violations because: 

(1) his request for Appeals Council review was timely submitted but dismissed as untimely, 

(2) a different ALJ signed his hearing decision than the one that presided over his hearing, and 

(3) the ALJ referenced Smith’s 1988 favorable supplemental security income decision in his 

unfavorable decision denying income for new medical conditions, but failed to attach a copy of it 

as an exhibit. We hold that an Appeals Council decision to refrain from considering an untimely 

petition for review is not a “final decision” subject to judicial review in federal court. Further, 

for the reasons explained below, each of Smith’s due process arguments fail. Therefore, we 

AFFIRM the order of the district court. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

 On September 18, 1987, Smith filed an application for supplemental security income 

resulting from disability. On October 13, 1988, an ALJ issued a favorable decision. Smith 

received benefits until 2004, when he was found to be over the resource limit. 

 Smith filed another application for supplemental security income on August 7, 2012, 

alleging additional medical conditions as a result of his original disability. The claim was 

initially denied, and denied again upon reconsideration. 

 Smith timely filed a request for a hearing before an ALJ. A hearing was conducted by 

videoconference before ALJ Robert Bowling on February 18, 2014. On March 26, 2014, ALJ 

Don Paris signed a decision on behalf of ALJ Bowling denying Smith’s claim. Pursuant to the 

governing regulations, Smith had sixty days to appeal the decision to the Appeals Council. He 
No. 17-5809 Smith v. Comm’r of Soc. Sec. Page 3

claims that he mailed a written request for review to the Appeals Council on April 24, 2014.1 On 

September 21, 2014, Smith faxed a correspondence to the Society Security Administration, 

inquiring as to the status of his appeal, and attaching a copy of his written request, which was 

dated April 24, 2014. A claims representative informed Smith in a letter dated October 1, 2014, 

that his request had not been placed in the “electronic folder,” and that if the Appeals Council 

had received the request, it would have mailed a receipt. The representative mailed a completed 

request for review form to the Appeals Council along with Smith’s written request for review. 

The representative informed Smith that his appeals request was filed as of that day, October 1, 

2014. On November 6, 2015, the Appeals Council dismissed the request for review as untimely, 

having found no good cause to extend the time for filing because Smith’s attorney could not 

provide evidence indicating that it was sent within the appropriate time. 

 Smith filed a civil action seeking review of the Appeals Council’s dismissal. Smith 

alleged in his complaint that the Appeals Council improperly dismissed his request for review 

and that he suffered due process violations. The Commissioner moved to dismiss the complaint 

for lack of subject matter jurisdiction, and alternatively, for failure to state a claim. The district 

court determined that there was no judicial review available because the Appeals Council’s 

dismissal of Smith’s request for appeal as untimely did not constitute a final decision and Smith 

made no colorable constitutional claims. It subsequently granted the Commissioner’s motion. 

Smith filed a motion for relief from the court’s order, which the court denied. He now appeals. 

II. ANALYSIS 

A. Jurisdiction 

 The threshold question is whether the decision of the Appeals Council not to consider 

Smith’s untimely request for review was a “final decision” subject to judicial review under 

42 U.S.C. § 405(g). We hold that it was not. 

 1

Smith’s attorney asserts that he timely mailed a written request for review using first-class mail in his 

court filings and in his correspondence with the Social Security Administration. However, other than his own 

testimony, he is unable to provide any proof that he mailed the request on April 24, 2014. 
No. 17-5809 Smith v. Comm’r of Soc. Sec. Page 4

 We review de novo a district court’s dismissal for lack of subject matter jurisdiction. See

Willis v. Sullivan, 931 F.2d 390, 395 (6th Cir. 1991). The Social Security Act limits judicial 

review to a “final decision” of the Commissioner made after a hearing. 42 U.S.C. § 405(g). 

When a claimant is not satisfied with an ALJ’s hearing decision, the claimant may request 

review from the Appeals Council within sixty days of receipt of the decision. 20 C.F.R. 

§§ 416.1467–416.1468. The Appeals Council 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 ALJ. Id. § 416.1467. 

If the claimant demonstrates good cause for missing the filing deadline, the regulations permit 

the Appeals Council to extend the time for filing an otherwise untimely request for review. 

Id. § 416.1468(b). If the Appeals Council dismisses the request for review as untimely, the 

dismissal is binding and not subject to further review. Id. §§ 416.1471–416.1472. Judicial 

review is available only after administrative exhaustion. Id. § 416.1400(a)(5). 

 In Califano v. Sanders, 430 U.S. 99, 108 (1977), the Supreme Court held that judicial 

review of a denial of a petition to reopen a prior final decision is unavailable in the absence of a 

colorable constitutional claim. The Court reasoned that, “an interpretation that would allow a 

claimant judicial review simply by filing and being denied a petition to reopen his claim would 

frustrate the congressional purpose, plainly evidenced in [§] 205(g), to impose a 60-day 

limitation upon judicial review of the Secretary’s final decision on the initial claim for benefits.” 

Id. 

 We have not directly addressed the issue at hand in a published opinion, but we have 

addressed similar issues on which we can rely. In Hilmes v. Secretary of Health & Human 

Services, 983 F.2d 67, 68 (6th Cir. 1993), the claimant had sixty days to request a hearing before 

an ALJ after receiving a notice of award from the Social Security Administration. The claimant 

sought an extension of the request deadline, but then failed to request a hearing until after the 

extension had expired. Id. The ALJ subsequently dismissed the request for a hearing as 

untimely, and the Appeals Council declined to review the matter, although it noted that there had 

been no good cause for missing the extended deadline. Id. In affirming the district court’s 

dismissal of the plaintiff’s petition, we followed the Sanders rationale and held that the dismissal 

of a hearing request as untimely was unreviewable. Id. at 69–70. In subsequent unpublished 
No. 17-5809 Smith v. Comm’r of Soc. Sec. Page 5

cases, we have applied the Sanders and Hilmes rules to hold that an order from the Appeals 

Council dismissing a plaintiff’s appeal as untimely is not a “final decision” as defined by the 

Social Security Act and regulations. See Coleman v. Comm’r of Soc. Sec., No. 96-1395, 1997 

WL 539674, at *2 (6th Cir. Aug. 29, 1997) (per curiam) (unpublished table decision); Young v. 

Comm’r of Soc. Sec., No. 95-2357, 1996 WL 343527, at *1 (6th Cir. June 20, 1996) 

(unpublished table decision). 

 Turning to our sister circuits, the majority view is that the Appeals Council’s decision to 

hear an untimely request for review is discretionary, and refusals of such requests do not 

constitute “final decisions” reviewable by district courts. See, e.g., Brandtner v. Dep’t of Health 

& Human Servs., 150 F.3d 1306, 1307 (10th Cir. 1998); Bacon v. Sullivan, 969 F.2d 1517, 1520 

(3d Cir. 1992); Matlock v. Sullivan, 908 F.2d 492, 494 (9th Cir. 1990) (“[P]ermitting claimants 

to obtain judicial review of denials of their requests for extensions of time would frustrate 

Congress’ intent to forestall belated litigation of stale claims.”); Harper ex rel. Harper v. 

Bowen, 813 F.2d 737, 743 (5th Cir. 1987) (holding that the Appeals Council’s refusal to grant an 

extension and consider an untimely request for review is not, under Sanders and the Secretary’s 

requirements for exhaustion, a “final decision”); Adams v. Heckler, 799 F.2d 131, 133 (4th Cir. 

1986); Dietsch v. Schweiker, 700 F.2d 865, 867 (2d Cir. 1983). Only the Eleventh Circuit sees 

this issue differently. See Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983). 

 The Eighth Circuit expressed compelling reasoning for determining that the dismissal of 

an appeal for failure to timely file is not a final decision: 

The Appeals Council may dismiss a request for review if it is not filed within the 

stated time. 20 C.F.R. § 404.971 (1984). Such dismissal is binding and not 

subject to further review. Id. 404.972. Such action does not address the merits of 

the claim, and thus cannot be considered appealable, as can the Appeals Council’s 

decisions and denials of timely requests for review. See id. §404.981. As we 

stated in Sheehan, “If the claimant may obtain review in this situation [late filing 

of an appeal] the Secretary’s orderly procedures for processing disability claims 

mean little or nothing. If claimant may avoid the timely exhaustion of remedies 

requirement, any claimant could belatedly appeal his claim at any time and 

always obtain district court review of an ALJ’s decision.” 
No. 17-5809 Smith v. Comm’r of Soc. Sec. Page 6

Smith v. Heckler, 761 F.2d 516, 518 (8th Cir. 1985) (quoting Sheehan v. Sec’y of Health, Educ. 

& Welfare, 593 F.2d 323, 326–27 (8th Cir. 1979)) (brackets in original). Similarly, we conclude 

that Appeals Council decisions to dismiss untimely petitions for review are not final decisions 

reviewable in federal court. Thus, the district court properly concluded it lacked jurisdiction 

under 42 U.S.C. § 405(g) unless Smith presented a colorable constitutional claim. 

B. Due Process 

 The Supreme Court recognized that when a constitutional challenge is raised to an 

otherwise unappealable order, “access to the courts is essential to the decision of such 

questions.” Sanders, 430 U.S. at 109. This court has interpreted this to mean that a reviewing 

court must determine whether the plaintiff has established a “colorable constitutional claim.” 

Cottrell v. Sullivan, 987 F.2d 342, 345 (6th Cir. 1992). Absent this claim, a federal court has no 

jurisdiction to review the Appeals Council’s decision. See id. The use of constitutional language 

to dress up a claim “does not convert the argument into a colorable constitutional challenge.” 

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

 Smith claims that his due process rights were violated because: (1) the Appeals Council 

denied his request for review as untimely after he allegedly timely mailed the request, 

(2) a different ALJ signed the unfavorable decision than the ALJ that held his hearing, and 

(3) his 1988 decision was referenced by the ALJ but not attached to the decision as an exhibit. 

Smith argues that the district court’s dismissal of his appeal is not supported by substantial 

evidence, actual evidence, the Commissioner’s own regulations and policies, or judicial rulings. 

We address each argument in turn. 

1. Request for Review 

 Smith does not argue that he lacked notice of the filing requirements. He instead argues 

that he did, in fact, timely file his notice of appeal. The district court determined that aside from 

his attorney’s own testimony, Smith was not able to provide any proof that he mailed his written 

request on April 24, 2014. The court concluded that “[a]bsent independent evidence, such as a 

postmark or dated receipt, this Court cannot reverse the Appeals Council’s determination that the 

written request for appeal was untimely.” Smith v. Comm’r, No. 5:16-cv-00003-DLB (E.D. Ky. 
No. 17-5809 Smith v. Comm’r of Soc. Sec. Page 7

Jan. 12, 2017). Smith claims on appeal that this finding is contrary to the Commissioner’s own 

regulations, specifically 20 C.F.R. § 404.630,2

 which he asserts “state[s] that the Commissioner 

is to use the date of the written statement as to be considered the date of filing.” Further, he 

argues that the Commissioner’s Hearings, Appeals, and Litigation Law Manual, referred to as 

“HALLEX,” “accepts the date of the written request as being the date filed, even if the postmark 

is unreadable or absent.” 

 In McKentry v. Secretary of Health & Human Services, 655 F.2d 721, 722 (6th Cir. 

1981), the disability claimant’s application was denied without a hearing on the merits due to a 

determination that she failed to request a hearing and reconsideration of the initial denial of her 

claim within sixty days. The claimant’s file contained a dated copy of a “Notice of 

Reconsideration,” which advised that McKentry would need to request a hearing not later than 

sixty days after receiving the notice, but no evidence that it was actually mailed to her. Id. at 

723. The claimant and her attorney filed sworn statements that they never received a copy of a 

notice of redetermination from the Social Security Administration. Id. at 722. The ALJ rejected 

these affidavits and dismissed the claimant’s request for a hearing. Id. The Appeals Council 

agreed with the ALJ. Id. We reversed and remanded for a hearing on the merits after finding no 

evidence that the notice was ever mailed to the claimant. Id. at 724. We concluded that “[t]he 

presence of a piece of paper in the Department’s file is not necessarily proof of mailing.” Id.

 The same reasoning applies here. Just as a dated piece of paper in the Department’s file 

was not proof of mailing in McKentry, in this case, Smith’s dated request for appeal and his 

attorney’s testimony that he timely mailed the request is not proof that the request was actually 

mailed. Further, the Social Security Administration has no record of ever timely receiving the 

request and Smith was unable to provide a postmark or dated receipt. Taking into account this 

lack of independent evidence, there is no presumption of receipt. See Hobt v. Comm’r of Soc. 

Sec., 175 F. App’x 709, 710 (6th Cir. 2006) (“As this Court explained in McKentry,

a presumption of receipt is inappropriate where there is no evidence that the notice was ever 

mailed.”); Crook v. Comm’r, 173 F. App’x 653, 657 (10th Cir. 2006) (“Self-serving declarations 

 2

Smith also claims that 20 C.F.R. § 404.633 supports his argument. However, § 404.633 has to do with 

misinformation being provided by an agency employee, which is not applicable here. 
No. 17-5809 Smith v. Comm’r of Soc. Sec. Page 8

of mailing, without more, are insufficient to invoke the presumption of delivery.”) (internal 

quotations, brackets, and citations omitted); cf. Carroll v. Comm’r, 71 F.3d 1228, 1229 (6th Cir. 

1995) (holding that the common law mailbox rule has no application where the IRS is involved 

and that “a taxpayer who sends a document to the IRS by regular mail, as opposed to registered 

or certified mail, does so at his peril”). Even if such a presumption were appropriate, however, it 

was effectively rebutted by the Administration’s statement that it did not receive the request 

before October 1, 2014—approximately four months late. Further Smith, unlike the claimant in 

McKentry, had a hearing before an ALJ. The district court properly found that Smith did not 

suffer any due process violations. 

 Smith also relies on 20 C.F.R. § 404.630. That provision states that “[i]f a written 

statement, such as a letter, indicating your intent to claim benefits . . . is filed with us under the 

rules stated in § 404.614, we will use the filing date of the written statement as the filing date of 

the application” if certain additional requirements are met. However, § 404.614(a) states that 

“[e]xcept as otherwise provided in paragraph (b) of this section . . . a written statement, request, 

or notice is filed on the day it is received.” Paragraph (b) goes on to say that the Social Security 

Administration will also accept as the date of filing the date a written request is mailed to it, if 

using the date of receipt “would result in a loss or lessening of rights.” In such a case, the date 

on the postmark will be used as the date of mailing. § 404.614(b)(2). If the postmark is 

unreadable or absent, the Administration will consider other evidence of when the claimant 

mailed the request. Id. 

 Smith’s reliance on § 404.630 is misplaced. Smith’s request was not considered filed 

until October 1, 2014, the date it was received by the Administration. Not only was the postmark 

absent, but there is no evidence that his request for appeal was ever mailed to the Administration 

during the appeals period because the agency never received anything from him. Other than his 

attorney’s assertion that he timely mailed the request, Smith was unable to provide any “other 

evidence” to the Administration or the district court. 
No. 17-5809 Smith v. Comm’r of Soc. Sec. Page 9

 Smith also relies on the HALLEX.3 The relevant provision, I–2–0–40, states that 

ordinarily a request for a hearing is considered filed as of the date it is received by the Social 

Security Administration office. Request for Hearing Filing Requirements, HALLEX (May 1, 

2017), https://www.ssa.gov/OP_Home/hallex/I-02/I-2-0-40.html. However, the agency will also 

accept as the date of filing a postmark date on the envelope in which the request was mailed, if 

using the date of receipt would result in a loss of the claimant’s rights. Id. If the postmark is 

unreadable or absent, the Administration considers the request timely mailed if it receives it by 

the seventieth day after the date on the notice of the determination or decision being appealed. 

Id. It will also consider other evidence of when the claimant mailed the request. Id. 

 This is similar to our analysis above. This argument also fails to persuade us because 

Smith’s request for appeal was not received by the seventieth day after the date on the notice of 

the decision being appealed. It was received four months after the time for appeal had expired. 

Additionally, none of the cases that Smith cites provide any support for his contentions. 

2. Signature 

 Smith next argues that, because ALJ Paris signed the decision on behalf of ALJ Bowling, 

the presiding ALJ, this violated the procedures set forth in the HALLEX, denied him 

due process, and constituted fraud. This argument lacks merit. The relevant HALLEX 

provision, I–2–8–40, explains that when an ALJ conducts a hearing but becomes unavailable to 

sign the decision, the Hearing Office Chief ALJ may sign the decision on behalf of the presiding 

ALJ, if the presiding ALJ has approved the final draft decision. Administrative Law Judge 

Conducts Hearing but Is Unavailable to Issue Decision, HALLEX (Mar. 10, 2016), 

https://www.ssa.gov/OP_Home/hallex/I-02/I-2-8-40.html. Therefore, ALJ Paris, as the Hearing 

Office Chief ALJ, had the authority to sign the hearing decision if ALJ Bowling, the presiding 

ALJ, was unavailable. The record supports the district court’s determination that the 

Commissioner complied with the HALLEX requirements because the signature on the ALJ’s 

decision plainly states that ALJ Paris was signing for ALJ Bowling. The actions were 

appropriate under the HALLEX and Smith did not suffer due process violations. See Creech v. 

 3

Smith cites HALLEX provision I–2–505B in his brief, which does not exist. We can assume that he is 

referring to I–2–0–40 instead, which covers the filing requirements for requests for hearings. 
No. 17-5809 Smith v. Comm’r of Soc. Sec. Page 10

Comm’r of Soc. Sec., 581 F. App’x 519, 521 (6th Cir. 2014) (reaching the same conclusion when 

confronted with the same argument by Smith’s attorney). Furthermore, Smith has not shown any 

prejudice that he suffered as a result of ALJ Paris signing the decision on behalf of ALJ Bowling. 

See id.; Lawrence v. Comm’r of Soc. Sec., 591 F. App’x 470, 471 (6th Cir. 2015) (per curiam) 

(finding no procedural violations and no prejudice when this argument was again raised by 

Smith’s attorney). 

 3. Exhibit 

 Finally, Smith argues that his due process rights were violated when his 1988 decision 

was referenced by the ALJ but not included as an exhibit in the decision. He did not raise this 

argument with the district court, and therefore it is forfeited. See Harper v. Sec’y of Health 

& Human Servs., 978 F.2d 260, 265 (6th Cir. 1992) (refusing to consider an issue not first raised 

before the Secretary); cf. Millmine v. Sec’y of Health & Human Servs., No. 94-1826, 1995 WL 

641300, at *2 (6th Cir. Oct. 31, 1995) (per curiam) (unpublished table decision) (finding that 

plaintiff’s failure to object to an ALJ’s possible bias during the administrative process constitutes 

a waiver of plaintiff’s objection). However, even if Smith’s factual allegations are true, he has 

not explained why they would amount to a due process violation, and similar arguments have 

been rejected as attempts to “dress up” claims as constitutional issues. E.g., Glazer v. Comm’r of 

Soc. Sec., 92 F. App’x 312, 315 (2004) (finding meritless the claimant’s argument that the lack 

of an administrative record of her prior application had denied her due process); Gosnell v. Sec’y 

of Health & Human Servs., 703 F.2d 216, 218 (6th Cir. 1983) (holding that due process does not 

require “the Secretary to retain records perpetually”). 

III. CONCLUSION 

 In sum, we find that the district court lacked jurisdiction to review the Appeals Council’s 

dismissal of the untimely request for review and that Smith fails to make any colorable 

constitutional claims. We AFFIRM.