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.
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
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.