United States District Court, E.D. Arkansas, Eastern Division
MEMORANDUM OPINION AND ORDER
Cantrisa Watson (“Watson”) began this case by
filing a pro se complaint pursuant to 42 U.S.C.
405(g). In the complaint, she challenged the final decision
of the Acting Commissioner of the Social Security
(“Commissioner”) filed a motion to dismiss and
accompanied it with several exhibits. See Docket
Entry 16. In the motion, she maintained that the
complaint should be dismissed. It was the Commissioner's
position that the complaint was not filed within sixty days
after the presumptive receipt of notice by Watson of the
Commissioner's final decision or within further time
allowed by the Commissioner, and there was no justification
for tolling the sixty day deadline.
Court reviewed the Commissioner's motion to dismiss and
could not tell at that time whether the exhibits would be
considered in resolving the motion. Out of abundance of
caution, the Court elected to treat the motion as one for
summary judgment. The parties were given an opportunity to
present all materials pertinent to the motion for summary
subsequently filed a response to the Commissioner's now
motion for summary judgment. In the response, Watson did not
deny filing an untimely complaint. She maintained, though,
that her untimely filing should be excused because she
suffers from a “terrible mental disease” that
impacts her memory and concentration. See Docket
Entry 19 at CM/ECF 2.
facts at the heart of this case are not in dispute. The
Commissioner accompanied her motion with a declaration from
Cristina Prelle (“Prelle”), an official with the
Social Security Administration. In the declaration, Prelle
made the following representations, all of which the Court
accepts as true:
[Watson] filed an application for a period of disability and
disability insurance benefits on September 14, 2010, alleging
that her disability began on August 1, 2007 (Exhibit 1). The
claim was denied initially on May 11, 2011 (Exhibit 2) and
upon reconsideration on May 25, 2011 (Exhibit 3).
[Watson] filed a request for hearing. On May 22, 2012, an
Administrative Law Judge issued a decision denying
[Watson's] claim for benefits under Title II, and mailed
a copy thereof to [Watson] (Exhibit 4). On March 27, 2013,
the Appeals Council remanded the case back to an
Administrative Law Judge for further administrative
proceedings (Exhibit 5).
On July 23, 2014, an Administrative Law Judge issued a
decision denying [Watson's] claim for benefits under
Title II, and mailed a copy thereof to [Watson] (Exhibit 6).
Thereafter, [Watson] requested review of this decision. On
December 28, 2015, the Appeals Council sent, by mail
addressed to [Watson] at P.O. Box 105, Parkin, AR 72373,
notice of its action on [Watson's] request for review and
of the right to commence a civil action within sixty (60)
days from the date of receipt (Exhibit 7).
At the time of signing this Declaration [i.e., on
April 28, 2016], [Prelle] is not aware of any request for an
extension of time to file a civil action as specified in said
notice and in section 205(g) of the Social Security Act, as
amended (42 U.S.C. 405(g)) and in section 422.210 of the
Social Security Administration regulations No. 22 (20 CFR
On March 28, 2016, a civil action was filed in the United
States District Court for the Eastern District of Arkansas.
See Docket Entry 21, Declaration of Cristina Prelle
U.S.C. 405(g) provides, in part, that a claimant may obtain
review of the Commissioner's final decision by “a
civil action commenced within sixty days after the mailing to
[the claimant] of notice of such decision or within such
further time as the Commissioner may allow.” The word
“mailing” as used in 42 U.S.C. 405(g) does not
mean the date on which notice is placed in the postal system.
Instead, the word “mailing” means the date on
which the claimant receives notice. See 20 C.F.R.
404.981 (action may be filed within sixty days after the
“date you receive notice”). The “date the
claimant receives notice” means five days after the
date of notice, unless there is a reasonable showing to the
contrary. See 20 C.F.R. 422.210(c). See
also 20 C.F.R. 404.901 (unless claimant can show that
she did not receive the notice within five days).
undisputed facts establish that notice of the
Commissioner's final decision was dated December 28,
2015. See Docket Entry 21, Declaration of Cristina
Prelle at 4. See also Docket Entry 21, Exhibit 7 at
1. Watson is presumed to have received notice, and the sixty
day period began, five days later, i.e., on or about
January 2, 2016, unless there is a reasonable showing to the
contrary. She has offered nothing to suggest that
she did not receive notice on or about January 2, 2016.
Watson thus had up to or about March 3, 2016, to file a
timely complaint challenging the final ...