United States District Court, W.D. Arkansas, Fort Smith Division
MEMORANDUM OPINION AND ORDER
MARK E. FORD UNITED STATES MAGISTRATE JUDGE.
Barbara Trejo, brings this action pursuant to 42 U.S.C.
§ 405(g) seeking judicial review of a decision of the
Commissioner of Social Security (Commissioner). On October
11, 2016, the Defendants filed a motion to dismiss the
Plaintiff's complaint pursuant to Rule 12(b)(1) of the
Federal Rules of Civil Procedure. ECF Nos. 11, 12. Despite
having ample time to do so, the Plaintiff has not filed a
filed an application for disability insurance benefits on
November 25, 2013. Following an administrative hearing, an
Administrative Law Judge (“ALJ”) denied
Plaintiff's application for benefits in a decision dated
April 16, 2015. Plaintiff requested the Appeals Council to
review the ALJ's decision. ECF No. 12-1. On May 26, 2016,
the Appeals Council mailed a notice/letter of its action to
Plaintiff's address, informing her that her request for
review had been denied and notifying her of the right to
commence a civil action within 60 days from the date of the
receipt of the notice/letter. Id.
review of the Commissioner's determination is limited in
scope by 42 U.S.C. § 405(g). The Supreme Court has
specifically held that § 405(h) prevents review of the
Secretary's decisions except as provided in § 405(g)
of the Act. Sheehan v. Secretary of Health, Ed. &
Welfare, 593 F.2d 323, 325 (8th Cir. 1979) (citing
Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45
L.Ed.2d 522 (1975)). Section 405(g) provides in pertinent
Any individual, after a final decision of the Commissioner
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 Commissioner may allow.
final decision of the Commissioner is binding unless the
claimant files an action in a Federal district court within
60 days after receipt of the notice of the Appeals
Council's decision. See also 20 C.F.R.
§§ 404.981, 422.210. The date of receipt is
presumed to be five days after the date of such notice,
unless there is a reasonable showing to the contrary made to
the Appeals Council. 20 C.F.R. §§ 404.901,
Supreme Court, in Bowen v. City of New York, 476
U.S. 467, 481 (1986), ruled that the 60-day time period
specified in section 205(g) of the Social Security Act, 42
U.S.C. § 405(g), is a period of limitation, which in a
rare case can be tolled by the Commissioner or the courts.
The Eighth Circuit has upheld the 60-day time limitation.
Hammonds v. Bowen, 870 F.2d 446, 448 (8th Cir.
1989); Turner v. Bowen, 862 F.2d 708, 710 (8th Cir.
the Appeals Council's decision denying Plaintiff's
request for review is dated May 26, 2016. In the letter, the
Appeals Council explained that it would assume Plaintiff
received the letter five days after the date on it unless
Plaintiff showed that she did not receive it within that
5-day period. ECF No. 12-1. The Appeals Council also notified
Plaintiff that if she could not file for court review within
60-days, she could ask the Appeals Council to extend her time
under the regulations, receipt of the notice would be
presumed on May 31, 2016. Thus, to be considered timely,
Plaintiff had to initiate her cause of action by August 1,
2016, unless she showed that she did not receive
the letter within the presumed 5-day period or filed for an
extension. However, without requesting an extension or
providing any explanation for the delay, Plaintiff waited
until August 8, 2016, to file her Complaint. Accordingly,
Plaintiff's Complaint is untimely and must be dismissed.
reasons stated above, the undersigned hereby grants the
Defendants' Motion to Dismiss, and directs the Clerk to
dismiss Plaintiff's Complaint with ...