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Mullinax v. Colvin

United States District Court, W.D. Arkansas, Texarkana Division

July 2, 2015

JANIS M. MULLINAX, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner, Social Security Administration, Defendant.

MEMORANDUM OPINION

BARRY A. BRYANT, Magistrate Judge.

Pending now before this Court is Defendant's Motion to Dismiss. ECF No. 8.[1] Plaintiff has not responded to this motion. The parties have consented to the jurisdiction of a magistrate judge to conduct any and all proceedings in this case, including conducting the trial, ordering the entry of a final judgment, and conducting all post-judgment proceedings. ECF No. 5. Pursuant to this authority, the Court issues this Memorandum Opinion and orders the entry of a final judgment in this matter.

1. Background:

Defendant filed a Motion to Dismiss alleging Plaintiff's complaint was untimely filed. Defendant states the complaint was not filed within the statutory time limitation of sixty days following the Commissioner's notice to Plaintiff that his request for review was denied. According to Defendant, the Appeals Council denied Plaintiff's request for review on December 18, 2014. ECF No. 8-1, Pg. 4. Therefore, Plaintiff should have commenced her civil action on or before February 23, 2015. This date includes the additional five days for receipt by mail, and one additional day to reach the next business day. The Complaint in this case was actually filed on March 5, 2015. ECF. No. 1

2. Discussion:

The only civil action an individual may bring on any claim arising under Title II or Title XVI of the Social Security Act is an action to review the final decision the Commissioner has made after hearing the case. An individual must commence that action within sixty days after receiving notice of the Commissioner's final decision or within such further time as allowed by the Commissioner. The Commissioner may extend the time for instituting a civil action upon a claimant's request and showing of good cause. See 42 U.S.C. 405(g); 20 C.F.R. ยง 422.210(c).

Plaintiff received notice the Appeals Council denied her request for review on December 18, 2014. ECF No. 8-1, Pg. 4, 23-25. Based on this, Plaintiff should have commenced her civil action on or before February 23, 2015. This date includes the additional five days for receipt by mail and one additional day to reach the next business day. Plaintiff filed her complaint on March 5, 2015. ECF No. 1. Defendant asserts this filing is untimely. The Plaintiff has not responded to this Motion to Dismiss. Based on this, the Court finds Plaintiff's complaint was not filed timely and should be dismissed.

3. Conclusion:

Based on the foregoing, Defendant's Motion to Dismiss (ECF No. 8) is GRANTED. A judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58.


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