Smith v. Comm’r of Soc. Sec., No. 17-5809 (MERRITT, Griffin, Donald).

Smith v. Comm’r of Soc. Sec., No. 17-5809 (MERRITT, Griffin, Donald).

When a Social Security Administration Administrative Law Judge issued an unfavorable decision on Plaintiff’s application for disability benefits, Plaintiff had sixty days to file an appeal. Plaintiff’s attorney claimed he timely mailed a request for review of the decision, but the Appeals Council did not receive the request until four months after the time for appeal had expired. When the Appeals Council denied the request for untimeliness, Plaintiff filed a complaint seeking review of the Social Security Administration Appeals Council. The district court dismissed the complaint for lack of jurisdiction and because he raised no colorable constitutional claims.

The Sixth Circuit affirmed, holding 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 under the Social Security Act. The Court noted that this holding was in line with previous unpublished opinions of the Sixth Circuit, as well as the majority view among sister Circuits. Indeed, the Court cited with approval the reasoning of the Eighth Circuit that dismissals for untimeliness do not address the merits of the claim, and thus cannot be considered appealable.

The Court also noted that it would have jurisdiction to hear a challenge to an otherwise unappealable order if the challenge raises cognizable constitutional claims. But the Court found that none of Plaintiff’s claims raised colorable constitutional claims.