AR 92-4(11) (Rescinded 10/26/99 by AR 99-4(11))
EFFECTIVE/PUBLICATION DATE: 04/08/92
ACQUIESCENCE RULING 92-4(11)
Whether an Appeals Council dismissal of a request for review of an ALJ decision is a "final decision" which is judicially reviewable.
Sections 205(g) and (h) and 1631(c)(3) of the Social Security Act (42 U.S.C. sections 405(g) and (h) and 1383(c)(3)); 20 CFR 404.955, 404.967, 404.971, 404.972, 404.982, 416.1455, 416.1467, 416.1471, 416.1472, 416.1482 and 422.210.
Eleventh (Alabama, Florida, Georgia)
Bloodsworth v. Heckler, 703 F.2d 1233 (11th Cir. 1983)
In 1979, Mr. Jack Bloodsworth, the plaintiff in this case, filed applications for a period of disability, disability insurance benefits, and supplemental security income payments. The applications were denied initially, on reconsideration, and by an ALJ after a hearing. The claimant missed the 60 day time limit for appealing to the Appeals Council, and his request for review of the ALJ decision, which was filed approximately two weeks after the deadline, was dismissed by the Council on the basis of untimeliness without good cause.
The claimant then filed a complaint in the Federal district court, alleging that denial of the extension of time to file was not supported by substantial evidence. The district court rejected the Secretary's argument that it lacked jurisdiction, reviewed the Appeals Council's denial of an extension of time, and remanded the case for consideration of the merits of Mrs. Bloodsworth's claim. On remand, the Appeals Council restated its position that the plaintiff's request for review was untimely filed but considered the claim on the merits as ordered, and denied the plaintiff's request for review. The district court affirmed the decision of the Secretary and the plaintiff appealed. On appeal, the Secretary again argued that the district court lacked jurisdiction.
The Eleventh Circuit has held that an Appeals Council dismissal of a request for review of an ALJ decision for reasons of untimeliness is a "final decision of the Secretary made after a hearing" within the meaning of section 205(g) of the Social Security Act and subject to judicial review.
Contrary to the holding of the Bloodsworth court, SSA policy is that the regulations make a clear distinction in regard to rights of judicial review between dismissals and determinations on the merits by the Appeals Council. The Appeals Council may take three types of action following an ALJ decision: it may grant a request for review, it may deny a request for review, or it may dismiss a request for review. The dismissal of a request for review of an ALJ decision is binding and not subject to further review. 20 CFR 404.972, 416.1472. See also 20 CFR 404.955, 416.1455, 422.210 (Appeals Council grant of request or denial of request for review of an ALJ decision is judicially reviewable). The Appeals Council will dismiss a request for review if it is untimely filed and the time for filing has not been extended, and the Appeals Council may dismiss a request for review for other prescribed reasons. 20 CFR 404.971, 416.1471.
SSA's position, based on the above-cited regulations, is that an Appeals Council dismissal is not a "final decision of the Secretary made after a hearing" and, therefore, is not judicially reviewable under section 205(g) of the Act (42 U.S.C. 405(g)).
Although the Bloodsworth holding is contrary to SSA's interpretation of the Act and its regulations, the issue is a federal jurisdiction matter and would not affect Agency policy at the ALJ or Appeals Council levels. Therefore, the Agency did not publish an Acquiescence Ruling because it was initially thought unnecessary. This opinion has since changed because of the recently issued acquiescence regulations.
This ruling applies only to cases involving claimants who reside in Alabama, Florida, or Georgia at the time of the Appeals Council dismissal of the request for review.
Notices sent by the Appeals Council which dismiss requests for review of ALJ decisions will advise claimants of their right to request judicial review.
 The Secretary argued that the district court lacked subject matter jurisdiction under sections 205(g) and (h) of the Social Security Act (42 U.S.C. section 405(g) and (h)) because the plaintiff failed to meet the "final decision" and "made after a hearing" requirements of these sections. The Secretary contended that (1) dismissal of a request for review on the basis of untimeliness without "good cause" is not a "final decision" for it does not constitute a determination on the merits and 2) it is not "made after a hearing" because no hearing is granted solely and specifically on the request for review itself.
 Section 205(g) of the Social Security Act (42 U.S.C. section 405(g)) provides in pertinent part any individual, after any final decision of the Secretary made after a hearing to which he was a party . . ., 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 Secretary may allow.
 20 CFR 404.981 and 416.1481 state in pertinent part that ". . . the Appeals Council's decision, or the decision of the administrative law judge if the request for review is denied, is binding unless you or another party file an action in Federal district court."
 As the Supreme Court noted, the term "final decision" is not defined in the Social Security Act, but the Act gives the Secretary authority to prescribe its meaning by regulations. Weinberger v. Salfi, 422 U.S. 749, 766 (1975).
 The Appeals Council upon good cause shown, may extend the time for filing a request for review of an ALJ decision.
 Since Bloodsworth was decided, the Agency has not been filing motions to dismiss in cases within the Eleventh Circuit involving Appeals Council dismissals of untimely requests for review of ALJ decisions.
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