IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CHARLIE ARNOLD, )

)

Plaintiff, )

)

vs. ) CIVIL ACTION NO 05-0396-CG-D

)

JO ANNE B. BARNHART, )

Commissioner of Social Security, )

)

Defendant. )

REPORT AND RECOMMENDATION

Plaintiff brought this action under 42 U.S.C. § 405(g) and § 1383(c)(3) seeking judicial

review of the denial of his claim for benefits under Title II and Title XVI of the Social Security

Act for the period of time between March 23, 1992 and February 6, 1997. (Doc. 1; Doc. 10,

Exhibits 1 & 2; Doc. 4, Affidavit of John J. Timlin, Acting Chief of Court Case Preparation and

Review Branch IV of the Office of Appellate Operations, Office of Hearings and Appeals,

Exhibits 3 & 4).

This matter is now before the court on defendant’s motion to dismiss plaintiff’s 

complaint wherein defendant alleges that this court lacks subject matter jurisdiction because

plaintiff did not exhaust his administrative remedies. (Doc. 4). Defendant argues that because

plaintiff appealed from a decision of the Appeals Council to deny review of the ALJ’s decision

to dismiss plaintiff’s request for an administrative hearing, and not from a final decision of the

Commissioner of Social Security after a hearing as required by 42 U.S.C. § 405(g), this court

lacks jurisdiction to address the complaint. (Doc. 4). 

Plaintiff responds that this court has jurisdiction and should deny defendant’s motion,

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order her to file an answer and transcript, and hear his claim on the merits. (Doc. 10). Plaintiff

responds that he has raised a colorable due process claim such that would overcome the

defendant’s argument that he failed to exhaust his administrative remedies. (Doc. 10). Plaintiff

also responds that his request for an administrative hearing was timely filed on June 26, 2003

because it was filed within sixty days of June 20, 2003, the date of his receipt of notice of the

reconsideration determination. (Doc. 10). 

Defendant filed a reply to the response wherein she reiterates that the Commissioner’s

dismissal of plaintiff’s request, which was binding because it was not vacated by the Appeals

Council, was not a final decision made after a hearing and thus not subject to judicial review.

(Doc. 11). Defendant also replies that plaintiff’s right to due process has not been denied

because the ALJ is not required to notify a claimant as to what issues will be addressed at the

hearing until after the ALJ has set the matter for hearing: a circumstance which did not occur

because the request for hearing was properly dismissed. (Doc. 11). 

This action was referred to the undersigned for report and recommendation pursuant to

28 U.S.C. §636(b)(1)(B). Upon consideration, it is recommended that the Commissioner’s

motion to dismiss (Doc. 10) be granted. 

Findings of Fact

1. Plaintiff filed his third application for disability benefits on May 16, 1995 alleging an

onset date of March 23, 1992. (Doc. 10, Exhibits 1 & 2). On or about December 18, 1997,

plaintiff was notified that he had met the medical requirements for disability and that a decision

would be forthcoming as to the non-medical requirements. (Doc. 10, Exhibit 13). On February

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1

 In this letter, plaintiff’s attorney wrote that his secretary was told November 9, 1998,

that the claim was still pending and that no decision had been made. He also wrote that on

August 23, 1999, his secretary was told by an SSA employee that the computer records did not

show that a request for reconsideration had been filed and suggested contacting the local office

which suggested a letter to Sommers.(Doc. 10, Exhibit 19). 

3

8, 1998, plaintiff was notified that he had been found disabled with an onset date of February 6,

1997, instead of March 23, 1992, and benefits were awarded. (Doc. 4, Affidavit, Exhibit 1). 

2. Plaintiff filed a timely request for reconsideration of the onset date on March 17,

1998. (Doc. 4, Affidavit, Exhibit 2; Doc. 10, Exhibit 17). On August 18, 1998, the Social

Security Administration (SSA) issued a reconsideration determination and affirmed the prior

decision. (Doc. 4, Affidavit, Exhibit 4). 

3. Plaintiff and his attorney deny receipt of the reconsideration determination, stating

that 

his staff contacted the SSA on a regular basis. These contacts did not produce a

ruling on Arnold’s “Request”. Instead they produced nothing, or alarming news

about inability to tell us what was going on, or the failure to find us listed as his

attorney. We received promises to find out definitively what was going on

without any follow through. We never did learn what the status of the “Request”

was until June, 2003. 

(Doc. 10, p. 2-3; see also Exhibit 29, plaintiff’s affidavit; Exhibit 30, plaintiff’s attorney’s

affidavit; Exhibit 31, plaintiff’s attorney’s paralegal’s affidavit). 

4. On August 25, 1999, plaintiff’s attorney faxed a letter to Edward W. Sommers III, an

operations supervisor at the SSA, regarding the status of the request for reconsideration. (Doc.

10, Exhibit 19). In the letter, plaintiff’s attorney outlined his staff’s attempts to obtain

information about the status of plaintiff’s case. (Doc. 10, Exhibit 19).1

 

 5. On October 1, 1999, Sommer responded by letter addressed to plaintiff’s attorney and

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 The letter is stamped received by the Office of Hearings and Appeals on November 18,

2004. (Doc. 4, Exhibit 5). 

4

reported that the reconsideration determination had been issued August 18, 1998. (Doc. 4,

Affidavit, Exhibit 5). Sommer also wrote that “[t]he file was properly documented that you were

the attorney of record and indicates you were sent a copy of the final notice.” (Id.) The letter

does not indicate that a copy was sent to plaintiff. (Id.). Plaintiff and his attorney deny receipt of

this letter. (Doc. 10, Exhibit 29, plaintiff’s affidavit; Exhibit 30, plaintiff’s attorney’s affidavit;

Exhibit 31, paralegal’s affidavit). 

6. Plaintiff’s attorney states that he first became aware of the October 1, 1999 letter from

Sommers because it was mentioned in the ALJ’s December 22, 2004 decision. (Doc. 10, Exhibit

30, p.2). Plaintiff’s attorney also states that he first saw the letter when he received it from the

Appeals Council by fax on January 24, 2005. (Doc. 10, Exhibit 30, p.2). 2

7. On March 20, 2000, plaintiff’s attorney’s secretary wrote a letter to O. Edwards at the

local SSA office referencing a telephone conversation of March 17, 2000 wherein they discussed

that the last correspondence in plaintiff’s attorney’s file was the letter faxed to Sommers and

dated August 25, 1999. (Doc. 10, Exhibit 20). 

8. There is no documentation of any contact by plaintiff or his attorney to SSA for the

time period from March 20, 2000 until June 18, 2003.

9. On June 18, 2003, plaintiff’s attorney spoke by telephone with Greg Sweeney at the

SSA and requested a copy of the reconsideration determination. Plaintiff’s attorney made a note

in his file that Sweeney “will send copy of ‘decision’” and “never sent to client or me according

to file.” (Doc. 10, Exhibit 21). On June 20, 2003, plaintiff’s attorney received a copy of the

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reconsideration determination with a cover letter from Linda Davis, Field Office Manager. (Doc.

10, Exhibit 22). In his affidavit, plaintiff’s attorney states that “[a]fter numerous inquiries I

finally contacted Mr. Greg Sweeney, a local Social Security representative that I was personally

familiar with . . . He told me that he could tell from the file that the customary reconsideration

denial notice document had never been forwarded to me or to my client, Mr. Arnold.” (Doc. 10,

Exhibit 30). In his response, plaintiff’s attorney states that “Mr. Sweeney reassured me greatly

by telling me that the file indicated that Arnold and I had not been sent copies of the denial. I

asked that he send me copies. It is significant that he made no mention of any Sommer letter of

October 1, 1999 to me. I certainly would have requested a copy of it had I learned from him of

its existence.” (Doc. 10, p. 3-4) (underlining in original). A copy of the letter from Sommer was

not included with the copy of the reconsideration determination sent by Davis on June 20, 2003.

(Doc. 10, p.4). 

10. Plaintiff’s attorney states that on June 26, 2003, plaintiff filed a request for a hearing

before an ALJ. (Doc. 10, Exhibit 23, p.3). Plaintiff provided a copy of the hearing request and a

cover letter addressed to the Office of Hearings and Appeals (OHA) in Mobile, Alabama. (Doc.

10, Exhibit 23, p.1-2). 

11. Defendant states that plaintiff filed a request for a hearing before an ALJ on

November 18, 2004. (Doc. 4, Affidavit, Exhibit 3). Defendant provided a copy of the request

which indicates that it was stamped received by the OHA on November 18, 2004 and shows a

fax header indicating it was faxed on November 5, 2004 from plaintiff’s attorney. (Doc. 4,

Affidavit, Exhibit 3). 

12. The ALJ stated that plaintiff filed a request for an administrative hearing on June 26,

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2003. (Doc. 4, Affidavit, Exhibit 6). 

13. On December 22, 2004, the ALJ dismissed plaintiff’s request for hearing. (Doc. 4,

Affidavit, Exhibit 6). In his decision, the ALJ found plaintiff filed a request for hearing on June

26, 2003. (Id.) He also found as follows: 

The claimant, by and through his attorney, alleges that he did not receive notice of

the reconsideration determination, and that as soon as he learned of the

reconsideration determination, he filed his request for hearing. The request for

hearing was filed approximately five years after the reconsideration determination

was issued. 

The [ALJ] finds that good cause does not exist to extend the filing deadline. First

and foremost, the reconsideration determination shows that both the claimant and

his attorney were mailed a copy of the reconsideration determination on August

18, 1998. The reconsideration determination has the correct address listed for

both the claimant and his attorney. There is no indication that the reconsideration

determination was returned as undeliverable. Furthermore, on October 1, 1999,

an operations supervisor from the Mobile District Office sent the claimant’s

attorney a letter. The letter stated that a reconsideration determination had been

issued in the claimant’s case on August 18, 1998. Thus, even if the claimant or

his attorney did not receive the reconsideration determination, the claimant’s

attorney learned in October 1999, that such a determination had been made. The

claimant did not file a request for hearing until June 26, 2003. This was

approximately three years and 10 months after the letter to the claimant’s

attorney. 

The Social Security Regulations provide that the [SSA] will consider certain

factors when determining whether good cause exists for missing a deadline to

request review (20 CFR § 404.911). The claimant’s failure to timely file an

appeal does not meet any of these factors. In particular, the claimant was

represented by an attorney during the appeal time. Moreover, even if the

claimant’s allegations are found to be fully credible, the claimant still waited over

three years before filing a request for hearing. 

Accordingly, there is no good cause to extend the time for filing. The claimant’s

request for hearing is hereby dismissed. The reconsideration determination dated

August 18, 1998 remains in effect. 

(Doc. 4, Affidavit, Exhibit 6).

14. Plaintiff timely requested review by the Appeals Council and on May 2, 2005, the

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3

 A portion of the last three sentences on the first page of the decision appears to have

been occluded by a post-it note. (Doc. 4, Affidavit, Exhibit 7). 

7

Appeals Council stated as follows: 

We have found no reason under our rules to review the Administrative

Law Judge’s dismissal. Therefore, we have denied your request for review. . . . 

We applied the laws, regulations and rulings in effect as of the date we

took this action. Under our rules, we will review your case for any of the

following reasons: The [ALJ] appears to have abused his or her discretion[;]

There is an error of law[;] The decision is not supported by substantial evidence[;]

There is a broad policy or procedural issue that may affect the public interest[; or]

We receive new and material evidence and the decision is contrary to the weight

of all the evidence now in the record. . . . 

In looking at your case, we considered the reasons you disagree with the

dismissal. 

We found that this information does not provide a basis for changing the

[ALJ’s] dismissal. The [ALJ] considered both the fact that notices of your

reconsideration determination were correctly addressed to you and your

representative and the fact that a letter dated October 1, 1999, was sent to your

representative [] of the status of your case. Although it may be correct that the

reconsideration [] notices were never released to you and your counsel, it seems

highly unlikely that the October 1999 letter, which was correctly addressed, was

not received in your representative’s office. The [ALJ] considered this as a strong

factor in his Order, and the Appeals Council is of the opinion that his reliance on

the critical nature of this letter was not misplaced.3

(Doc. 4, Affidavit, Exhibit 7). Plaintiff filed his complaint in this court on July 5, 2005. (Doc.

1). 

Statement of the Law

The jurisdiction of this court to review actions taken by the SSA is governed by the first

sentence of Section 205(g) of the Social Security Act (codified at 42 U.S.C. § 405(g)) as follows: 

Any individual, after any final decision of the Commissioner of Social Security

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 “The term ‘final decision’ is not only left undefined by the Act but its meaning is left to

the [Commissioner] to flesh out by regulations. (Footnote omitted) Section 405(l) accords the

Secretary complete authority to delegate his statutory duties to officers and employees of the

Department of Health, Education, and Welfare. The statutory scheme is thus one in which the

Secretary may specify such requirements for exhaustion as he deems serve his own interests in

effective and efficient administration.” Weinberger, 422 U.S. at 766, 95 S Ct. At 2467. 

8

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 Commission may allow. 

42 U.S.C. § 405(g). Section 405(h) addresses the finality of the Commissioner’s decision and 

provides as follows: 

The findings and decision of the Commissioner of Social Security after a hearing

shall be binding upon all individuals who were parties to such hearing. 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

subchapter. 

42 U.S.C. § 405(h). 

Our jurisprudence dictates that if a right to sue the United States is created by statute and

the statute provides a specific remedy, that remedy becomes the exclusive method by which a

claim may be brought. United States v. Babcock, 250 U.S. 328, 331 (1919). Therefore, judicial

review under the Social Security Act is limited to a final decision of the Commissioner made

after a hearing unless the plaintiff presents a colorable constitutional claim which is an exception

to the exhaustion requirement. Weinberger v. Salfi, 422 U.S. 749, 764-67, 95 S.Ct. 2457,

2466-67 (1975);4

 Califano v. Sanders, 430 U.S. 99, 108, 97 S.Ct. 980, 986 (1977) (finding that §

405(g) “clearly limits judicial review to a particular type of agency action, a ‘final decision of

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 “Good cause for missing the deadline to request review. (a) In determining whether

you have shown that you had good cause for missing a deadline to request review we consider– 

(1) What circumstances kept you from making the request on time; (2) Whether our action

misled you; (3) Whether you did not understand the requirements of the Act resulting from

amendments to the Act, other legislation, or court decisions; and (4) Whether you had any

physical, mental, educational, or linguistic limitations (including any lack of facility with the

English language) which prevented you from filing a timely request or from understanding or

knowing about the need to file a timely request for review. (b) Examples of circumstances

where good cause may exist include, but are not limited to, the following situations: (1) You

were seriously ill and were prevented from contacting us in person, in writing, or through a

friend, relative, or other person. (2) There was a death or serious illness in your immediate

family. (3) Important records were destroyed or damaged by fire or other accidental cause. (4)

You were trying very hard to find necessary information to support your claim but did not find

the information within the stated time periods. (5) You asked us for additional information

9

the Secretary made after a hearing’” and holding that because the decision not to reopen a prior

final determination could be made without a hearing, the decision was not subject to review by

the federal courts unless the plaintiff presented a colorable constitutional claim); see also

Brandyburg v. Sullivan, 959 F.2d 555, 558 (5th Cir. 1992) (finding that the court “must affirm the

district court’s dismissal unless Brandyburg has raised a colorable constitutional claim.”). 

The regulations provide that plaintiff must file a hearing request within sixty (60) days of

receipt of the notice of the previous determination or decision “or within the extended time

period if [the SSA will] extend the time as provided in paragraph (c) of this section”. 20 C.F.R.

§ 404.933(a). Paragraph (c) sets forth as follows:

 (c) Extension of time to request a hearing. If you have a right to a hearing but do

not request one in time, you may ask for more time to make your request. The

request for an extension of time must be in writing and it must give the reasons

why the request for a hearing was not filed within the stated time period. You

may file your request for an extension of time at one of our offices. If you show

that you had good cause for missing the deadline, the time period will be

extended. To determine whether good cause exists, we use the standards

explained in §404.911.

20 C.F.R. § 404.933.5 

Case 1:05-cv-00396-CG-C Document 12 Filed 12/07/05 Page 9 of 20
explaining our action within the time limit, and within 60 days of receiving the explanation you

requested reconsideration or a hearing, or within 30 days of receiving the explanation you

requested Appeal Council review or filed a civil suit. (6) We gave you incorrect or incomplete

information about when and how to request administrative review or to file a civil suit. (7) You

did not receive notice of the determination or decision. (8) You sent the request to another

Government agency in good faith within the time limit and the request did not reach us until

after the time period had expired. (9) Unusual or unavoidable circumstances exist, including the

circumstances described in paragraph (a)(4) of this section, which show that you could not have

known of the need to file timely, or which prevented you from filing timely.”

20 C.F.R. § 404.911. 

6

 “The Commissioner of Social Security is directed to make findings of fact, and

decisions as to the rights of any individual applying for a payment under this subchapter. . . .

Upon request . . . the Commissioner shall give such applicant and such other individual

reasonable notice and opportunity for a hearing with respect to such decision, and, if a hearing is

held, shall, on the basis of evidence adduced at the hearing, affirm, modify, or reverse the

Commissioner's findings of fact and such decision. Any such request with respect to such a

decision must be filed within sixty days after notice of such decision is received by the

individual making such request.” 42 U.S.C. § 405(b)(1). 

10

Receipt of notice is presumed to occur five days after the date on the notice unless

plaintiff provides evidence otherwise. 20 C.F.R. § 404.901 (“Date you receive notice means 5

days after the date on the notice, unless you show us that you did not receive it within the 5-day

period.”). Also, notice sent to a plaintiff’s attorney or representative “will have the same force

and effect as if it had been sent to” the plaintiff. 20 C.F.R. § 404.1715(b).

Social Security applicants have a right conferred by 42 U.S.C. § 405(b)(1) to

“‘reasonable notice and opportunity for a hearing’” before an ALJ following an unfavorable

decision but not an absolute guarantee of a hearing.6 Brandyburg, 959 F. 2d at 560 (emphasis in

original)). Consequently, the regulations allow an ALJ to dismiss a request for a hearing if

certain limited circumstances exist. Id. at 560-561. Relevant to this case, the ALJ may “decide[]

that there is cause to dismiss a hearing request entirely or to refuse to consider any one or more

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 See also 20 C.F.R. § 404.900(b)(“If you are dissatisfied with our decision in the review

process, but do not take the next step within the stated time period, you will lose your right to

further administrative review and your right to judicial review, unless you can show us that there

was good cause for your failure to make a timely request for review.”)

11

of the issues because [plaintiff] did not request a hearing within the stated time period and [the

SSA has] not extended the time for requesting a hearing under § 404.933(c)[.]” 20 C.F.R. §

404.957(c)(3). 

The regulations provide for Appeals Council review of an ALJ’s decision to dismiss a

request for a hearing. 20 C.F.R. § 404.967 (“If you or any other party is dissatisfied with the

hearing decision or with the dismissal of a hearing request, you may request that the Appeals

Council review that action.”). 7 Also, either the ALJ or the Appeals Council may vacate the

decision to dismiss the hearing request. 20 C.F.R. § 404.960 (“An administrative law judge or

the Appeals Council may vacate any dismissal of a hearing request if, within 60 days after the

date you receive the dismissal notice, you request that the dismissal be vacated and show good

cause why the hearing request should not have been dismissed. The Appeals Council itself may

decide within 60 days after the notice of dismissal is mailed to vacate the dismissal. The Appeals

Council shall advise you in writing of any action it takes.”)

Conclusions of Law

This court must first determine whether a final decision after a hearing as required by

§405(g) has been entered. If so, then this court has jurisdiction under the section to hear

plaintiff’s complaint. If not, then this court lacks jurisdiction, unless plaintiff can establish a

colorable constitutional claim. Sanders, 430 U.S. 99, 97 S.Ct. 980. Other circuits, relying on

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Sanders, have held that an ALJ’s dismissal of an untimely request for an administrative hearing

is not a final decision made after a hearing and therefore, the court does not have subject matter

jurisdiction under 42 U.S.C. § 405(g) to review such a dismissal. Hilmes v. Secretary of Health

& Human Services, 983 F.2d 67, 69-70 (6th Cir. 1993); White v. Schweiker, 725 F.2d 91, 93-94

(10th Cir. 1984); see also Hoye v. Sullivan, 985 F.2d 990, 991 (9th Cir.1992) (claimant’s refusal

to attend administrative hearing constituted a failure to “exhaust the administrative remedy upon

which judicial review depends.”)

At present, it does not appear that the Eleventh Circuit has published an opinion on the

issue of whether this court has subject matter jurisdiction to review the ALJ’s dismissal of a

claimant’s request for an administrative hearing because it was not timely filed. However, the

Court has, consistent with the Sixth and Tenth Circuit Courts of Appeal, addressed generally the

issue of when subject matter jurisdiction is present. For example in Holland v. Heckler, 764 F.

2d 1560 (11th Cir. 1985), the Eleventh Circuit found that an ALJ’s dismissal of a case on grounds

of res judicata was not subject to review unless plaintiff presented a colorable constitutional

claim. See also Elchediak v. Heckler, 750 F.2d 892 (11th Cir. 1985) (discussing colorable

constitutional claims in a res judicata case). Also, in Loudermilk v. Barnhart, 290 F.3d 1265

(11th Cir. 2002) the Eleventh Circuit found that the claimant failed to establish a colorable

constitutional claim such that would give the courts jurisdiction after a denial of plaintiff’s

request to reopen his initial application. See also Wolfe v. Chater, 86 F.3d 1072, 1078 (11th Cir.

1996) (“Federal courts generally lack jurisdiction to review a decision by the Secretary to refrain

from reopening a prior claim for benefits.”)(citing Sanders, 430 U.S. at 107-09, 97 S.Ct. at

Case 1:05-cv-00396-CG-C Document 12 Filed 12/07/05 Page 12 of 20
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 Plaintiff cites Bloodsworth v. Heckler, 703 F.2d 1233 (11th Cir. 1983) for the

proposition that this court has subject matter jurisdiction. However, Bloodsworth is clearly

distinguishable because it involved the claimant’s inadvertent failure to file a timely appeal of

the hearing decision to the Appeals Council and the Appeals Council’s dismissal of the request

for review, id. at 1235, whereas in the present case, an administrative hearing was never held.

9

 Plaintiff also states that his due process rights were denied because the SSA twice lost

his file while reviewing his first and second applications. It appears that he has provided this

information to show that his client has a lengthy history of due process problems with the SSA. 

However, those applications did not proceed to the administrative hearing level and are not

before this court. Thus, they do not form the basis of a colorable constitutional claim in this

case.

13

985-86).8

As previously stated, absent a final decision, this court may exercise subject matter

jurisdiction only where there is a colorable constitutional claim. Sanders, 430 U.S. at 109, 97

S.Ct. at 986. Plaintiff argues that his due process rights were denied on three grounds.9

 

Initially plaintiff states that his due process rights were denied because the SSA took

almost three years to rule on his third application from which this case arose. Plaintiff applied

for benefits in May 1995 alleging an onset date of March 23, 1992. In February 1998, the SSA

notified plaintiff that he had been awarded benefits at the initial level with an onset date of

February 6, 1997. (Doc. 4, p.2). Plaintiff, of course, received back benefits from February 6,

1997, thus, plaintiff has failed to show how any delay was prejudicial. In order to establish a due

process violation, plaintiff must show prejudice. Brown v. Shalala, 44 F. 3d 931, 934 (11th Cir.

1995) (Plaintiff must show that he is prejudiced before it is found that his due process rights

have been violated to the extent that the case should be remanded for further development). 

Therefore, the fact that the decision was rendered three years after the application does not state

a colorable constitutional claim. 

Case 1:05-cv-00396-CG-C Document 12 Filed 12/07/05 Page 13 of 20
10 Plaintiff asserts that the Appeals Council’s conceding that it appeared the August 1998

notice had not been sent supports his statement that SSA employee Sweeney told his attorney

that the record showed the reconsideration determination had not been sent. (Doc. 10). In that

14

 Next plaintiff states that his due process rights were denied because the SSA failed to

inform plaintiff or his attorney of the August 18, 1998 reconsideration determination denying his

claim until June 20, 2003, almost five years later, despite repeated requests by his attorney. 

Plaintiff also states that the SSA failed to mail plaintiff’s attorney the Sommer letter dated

October 1, 1999, which would have informed plaintiff’s attorney that plaintiff’s claim had been

denied on reconsideration in August 1998. (Doc. 10). 

Plaintiff seeks to rebut the presumption of delivery with his affidavit, his attorney’s

affidavit, and his attorney’s paralegal’s affidavit, wherein they state that the August 1998 notice

of reconsideration determination and the October 1, 1999 letter were never received. Also, in his

response to the motion to dismiss, signed by plaintiff’s attorney and subject to the requirements

of Rule 11 of the Federal Rules of Civil Procedure, his attorney identifies the repeated steps

taken to obtain information about the status of the reconsideration. Plaintiff’s attorney argues

that his actions support an inference that he did not receive either the notice or the letter because

he continued to pursue the information until it was received June 20, 2003, at which time he

rapidly filed a request for hearing before an ALJ on June 26, 2003. Plaintiff’s attorney also

offers his notes from the June 18, 2003 telephone conversation with Sweeney which indicates

that Sweeney told him that the SSA file showed that the reconsideration determination was not

mailed to him or his client. As support, plaintiff points to the Appeals Council’s finding that it

“may be correct that the reconsideration [] notices were never released to you and your counsel”. 

(Doc. 10, Exhibit 21).10 

Case 1:05-cv-00396-CG-C Document 12 Filed 12/07/05 Page 14 of 20
regard, the Appeals Council found as follows: 

Although it may be correct that the reconsideration [] notices were never released

to you and your counsel, it seems highly unlikely that the October 1999 letter,

which was correctly addressed, was not received in your representative’s office.

The [ALJ] considered this as a strong factor in his Order, and the Appeals Council

is of the opinion that his reliance on the critical nature of this letter was not

misplaced.

(Doc. 4, Affidavit, Exhibit 7). 

15

As stated previously, the ALJ and Appeals Council determined that plaintiff did receive

notice of reconsideration by at least the October 1, 1999 letter. Thus, plaintiff’s objection and

argument is entirely based on the factual findings of the ALJ and Appeals Council. In other

words, plaintiff disagrees with the factual findings of the SSA. While plaintiff appears to have

significant evidence to show that he did not receive the notice of reconsideration, such an

argument does not state a constitutional claim. This court does not have subject matter

jurisdiction to consider whether the factual findings of the SSA regarding receipt of notice are

supported by substantial evidence. The court only has subject matter jurisdiction to consider a

colorable constitutional claim. In order to reach a possible due process claim, i.e. no receipt of

the notice of reconsideration, this court would first have to determine that the ALJ’s and Appeals

Council’s factual findings were in error. The law does not allow for such review. Moreover, it

is not enough to simply call your claim a due process violation in order to invoke the review. 

See Robertson v. Bowen, 803 F.2d 808, 809 (5th Cir. 1986) (“We agree with our colleagues of

the Fourth Circuit that ‘[i]f the mere allegation of a denial of due process can suffice to establish

subject-matter jurisdiction, then every decision of the Secretary would be reviewable by the

inclusion of the [magic] words....’” citing Holloway v. Schweiker, 724 F.2d 1102, 1105 (4th Cir.

Case 1:05-cv-00396-CG-C Document 12 Filed 12/07/05 Page 15 of 20
11 Section 404.938, captioned “Notice of a hearing before an administrative law judge”, 

sets forth in part as follows: “(a) Issuing the notice. After the [ALJ] sets the time and place of the

hearing, we will mail notice of the hearing to you . . . (b) Notice information. The notice of

hearing will contain a statement of the specific issues to be decided and tell you that you may

designate a person to represent you during the proceedings.” 20 C.F.R. § 404.936. 

12 Plaintiff relied upon the section addressing new issues, apparently taking the position

that the ALJ’s decision to consider good cause to dismiss the request was a new issue. Section

404.946, captioned “Issues before an administrative law judge”, sets forth, in pertinent part, as

follows: “(b) New issues– (1) General. The [ALJ] may consider a new issue at the hearing if he

or she notifies you and all the parties about the new issue any time after receiving the hearing

request and before mailing notice of the hearing decision. The [ALJ] or any party may raise a

new issue; an issue may be raised even though it arose after the request for a hearing and even

though it has not been considered in an initial or reconsidered determination. . . . (2) Notice of a

new issue. The [ALJ] shall notify you and any other party if he or she will consider any new

issue. Notice of the time and place of the hearing on any new issues will be given in the manner

described in § 404.938, unless you have indicated in writing that you do not wish to receive the

notice.” 20 C.F.R. § 404.936. 

13Section 404.957, entitled “Dismissal of a request for a hearing before an administrative

law judge” sets forth as follows: 

An [ALJ] may dismiss a request for a hearing under any of the following

conditions: . . . 

16

1984)). Thus, plaintiff’s argument, which he has supported with significant evidence, that he did

not receive the notice of reconsideration does not state a colorable constitutional claim.

Plaintiff also argues that he has been denied due process because the ALJ dismissed his

request for an administrative hearing as untimely without giving plaintiff notice and an

opportunity for a hearing before the ALJ on the issue of whether his request for an administrative

hearing was delayed for good cause. (Doc. 10). In support plaintiff references 20 C.F.R. §

404.93811 and 404.946(b).12 However, neither the Social Security Act nor the regulations

provide for a hearing to consider whether good cause exists to dismiss a request for an

administrative hearing. Instead, the regulations provide for limited circumstances delineated at §

404.957(c)13 which protect a claimant from an arbitrary decision by identifying the

Case 1:05-cv-00396-CG-C Document 12 Filed 12/07/05 Page 16 of 20
(c) The [ALJ] decides that there is cause to dismiss a hearing request entirely or

to refuse to consider any one or more of the issues because--

(1) The doctrine of res judicata applies in that we have made a previous

determination or decision under this subpart about your rights on the same facts

and on the same issue or issues, and this previous determination or decision has

become final by either administrative or judicial action;

(2) The person requesting a hearing has no right to it under § 404.930;

(3) You did not request a hearing within the stated time period and we have not

extended the time for requesting a hearing under § 404.933(c); or

(4) You die, there are no other parties, and we have no information to show that

another person may be adversely affected by the determination that was to be

reviewed at the hearing. However, dismissal of the hearing request will be

vacated if, within 60 days after the date of the dismissal, another person submits a

written request for a hearing on the claim and shows that he or she may be

adversely affected by the determination that was to be reviewed at the hearing.

20 C.F.R. § 404.957(c). 

17

circumstances in which the ALJ has discretion to dismiss a request for a hearing. As defendant

points out, the regulations cited by plaintiff apply after the ALJ has set a hearing. 

Upon review of plaintiff’s claims the undersigned concludes that he has failed to raise a

colorable constitutional claim. Section 405(b)(1) guarantees a plaintiff who has received an

unfavorable determination of disability a “reasonable notice and opportunity for a hearing”, but

the guarantee does not extend to an ALJ’s dismissal of a request for a hearing which was made

within the parameters of the regulations promulgated by the SSA to administer such situations. 

See Brandyburg, 959 F. 2d at 561 (“The authorization of dismissals in section 416.1457(b)(1) is

therefore not inconsistent with the statute’s guarantee of an opportunity for a hearing. And at

least where, as here, the claimant does not allege any facts showing a violation of the regulations

requirements, (e.g., that the ALJ dismissed in a situation not authorized by the regulations or that

[the ALJ] failed to give the claimant the required notice (footnote omitted) but merely objects to

the ALJ’s determination to dismiss the request for hearing, a district court’s refusal to accept

Case 1:05-cv-00396-CG-C Document 12 Filed 12/07/05 Page 17 of 20
18

jurisdiction also does not undermine the statutory guarantee (footnote omitted)”). Plaintiff’s

inability to present evidence to the ALJ to rebut the presumption that he had not received notice

until June 2003 is not a constitutional claim, but rather is directed to the merits of an argument

that the ALJ improperly found no good cause for the late filing. 

Moreover, plaintiff had two opportunities to meaningfully present his good cause

argument and thus obtain his administrative hearing. First, he presented his argument regarding

the lack of receipt of notice to the ALJ in the cover letter with his request for hearing and second

in the brief to the Appeals Council. The fact that neither agreed with plaintiff’s good cause

argument does not create a colorable constitutional claim of deprivation of due process. For this

court to address whether the ALJ erred by failing to find plaintiff established good cause to

extend his deadline would be the equivalent of accepting jurisdiction over this case and

reviewing the merits of the ALJ’s decision. As previously discussed, the ALJ’s decision for

which the Appeals Council has denied review, is now binding on plaintiff and not subject to

judicial review. 

Conclusion

The undersigned recommends that this court find that it lacks subject matter jurisdiction

in this case on the basis that the ALJ’s dismissal of plaintiff’s hearing request as untimely and

the Appeals Council’s denial of review of that decision, does not constitute a final decision made

after a hearing as contemplated in 42 U.S.C. §405(g). Further, the undersigned recommends that

this court find plaintiff has failed to raise a colorable constitutional claim. Accordingly, it is

recommended that defendant’s motion to dismiss be granted and this action be dismissed. 

Case 1:05-cv-00396-CG-C Document 12 Filed 12/07/05 Page 18 of 20
19

The attached sheet contains important information regarding objections to this report and

recommendation.

DONE this the 7th day of December, 2005. 

 s / Kristi K. DuBose 

KRISTI K. DuBOSE 

UNITED STATES MAGISTRATE JUDGE

Case 1:05-cv-00396-CG-C Document 12 Filed 12/07/05 Page 19 of 20
MAGISTRATE JUDGE’S EXPLANATION OF PROCEDURAL RIGHTS

AND RESPONSIBILITIES FOLLOWING RECOMMENDATION

AND FINDINGS CONCERNING NEED FOR TRANSCRIPT

1. Objection. Any party who objects to this recommendation or anything in it must, within ten

days of the date of service of this document, file specific written objections with the clerk of court.

Failure to do so will bar a de novo determination by the district judge of anything in the

recommendation and will bar an attack, on appeal, of the factual findings of the magistrate judge.

See 28 U.S.C. § 636(b)(1)(C); Lewis v. Smith, 855 F.2d 736, 738 (11th Cir. 1988). The procedure

for challenging the findings and recommendations of the magistrate judge is set out in more detail

in SD ALA LR 72.4 (June 1, 1997), which provides, in part, that:

A party may object to a recommendation entered by a magistrate judge in a

dispositive matter, that is, a matter excepted by 28 U.S.C. § 636(b)(1)(A), by filing

a “Statement of Objection to Magistrate Judge’s Recommendation” within ten days

after being served with a copy of the recommendation, unless a different time is

established by order. The statement of objection shall specify those portions of the

recommendation to which objection is made and the basis for the objection. The

objecting party shall submit to the district judge, at the time of filing the objection,

a brief setting forth the party’s arguments that the magistrate judge’s

recommendation should be reviewed de novo and a different disposition made. It is

insufficient to submit only a copy of the original brief submitted to the magistrate

judge, although a copy of the original brief may be submitted or referred to and

incorporated into the brief in support of the objection. Failure to submit a brief in

support of the objection may be deemed an abandonment of the objection.

A magistrate judge’s recommendation cannot be appealed to a Court of Appeals; only the

district judge’s order or judgment can be appealed.

2. Opposing party’s response to the objection. Any opposing party may submit a brief

opposing the objection within ten (10) days of being served with a copy of the statement of

objection. Fed. R. Civ. P. 72; SD ALA LR 72.4(b). 

3. Transcript (applicable where proceedings tape recorded). Pursuant to 28 U.S.C. § 1915

and Fed.R.Civ.P. 72(b), the magistrate judge finds that the tapes and original records in this action

are adequate for purposes of review. Any party planning to object to this recommendation, but

unable to pay the fee for a transcript, is advised that a judicial determination that transcription is

necessary is required before the United States will pay the cost of the transcript.

 s / Kristi K. DuBose 

UNITED STATES MAGISTRATE JUDGE

Case 1:05-cv-00396-CG-C Document 12 Filed 12/07/05 Page 20 of 20