United States District Court, E.D. Arkansas, Jonesboro Division
before the Court is a Motion to Dismiss filed by Defendant
Social Security Commissioner (“Commissioner”),
Doc. 7, who contends that Plaintiff Vincent Johnson
(“Johnson”) waited too long to file his
Complaint. Johnson has filed a Response opposing the
Commissioner's Motion, Doc. 8.
reasons stated below, the Court concludes that good cause
exists to equitably toll the filing deadline and to permit
judicial review on the merits of the Commissioner's
decision denying benefits to Johnson. Thus, the
Commissioner's Motion is denied.
October 3, 2017, Johnson initiated this action by filing a
Complaint seeking review of the Commissioner's decision
denying benefits. As detailed in Johnson's Complaint, his
current appeal dates back to concurrent claims for social
security disability and social security income benefits
originally filed on August 26, 2009:
The claims were denied initially and upon reconsideration.
Plaintiff requested a hearing before an Administrative Law
Judge (ALJ) which was held on April 5, 2011. On May 5, 2011,
the ALJ issued an unfavorable decision denying
plaintiff's claim for benefits. The plaintiff timely
requested Appeals Council review of the ALJ's decision
which was remanded on October 20, 2011. Plaintiff attended a
supplemental hearing before an ALJ on January 31, 2012. On
June 26, 2012, the ALJ issued a denial. Plaintiff timely
requested Appeals Council review and on March 11, 2013, the
claim was remanded. A third hearing was held before an ALJ on
July 8, 2013 in which the ALJ issued a denial on July 22,
2013. A timely appeal was filed with the Appeals Council and
was denied on February 6, 2014. Plaintiff sought judicial
review and by Order dated May 13, 2015, the claim was
remanded for further consideration. A fourth hearing was held
before an ALJ on December 3, 2015 and was denied on December
24, 2015. Plaintiff timely requested Appeals Council Review
which was denied on February 6, 2017.
(Complaint, Doc. 2, at ¶ 6).
further alleges in his Complaint that neither he nor his
attorney were aware of the Appeals Council's final
decision, dated February 6, 2017, until his attorney
contacted the Social Security Office, on July 31, 2017, to
check on the status of Johnson's claim. (Doc. 2 at
parties dispute whether these facts justify equitable tolling
of the limitations period for seeking judicial review of the
Commissioner's final decision denying benefits.
statute, a claimant seeking judicial review of the Social
Security Administration's (“SSA's”) final
denial of benefits must commence a civil action “within
sixty days after the mailing to him of notice of such
decision or within such further time as the Commissioner may
allow.” 42 U.S.C. § 405(g). The term
“mailing” has been interpreted to be the date of
receipt by the claimant of the Commissioner's
final decision. 20 C.F.R. §§ 404.981, 416, 1481;
see also 20 C.F.R. §§ 404.1715(b),
416.1515(b) (a notice sent to the claimant's
representative has the same force and effect as a notice sent
to the claimant). The “date of receipt” is
presumed to be five days after the date on the notice, absent
a reasonable showing to the contrary. 20 C.F.R. §§
404.901 and 416.1401. Thus, generally a claimant must
initiate judicial review within 65 days of the
Commissioner's final decision.
time to initiate judicial review is subject to equitable
tolling “where the equities in favor of tolling the
limitations period are so great that deference to the
agency's judgment are inappropriate.” Bowen v.
City of New York, 476 U.S. 467, 480 (1986). Thus, §
405(g)'s filing deadline is subject to “traditional
equitable tolling” principles. Id. (omitting
internal quotations and citation).
contends that neither he nor his attorney learned of the
Appeal Council's February 6, 2017 denial until
after the 60-day period to file a civil action
appealing the decision had expired. On July 31, 2017,
Johnson's attorney contacted the Appeals Council by phone
to check on the status of the claim and learned, for the
first time, of the February 6th denial. (Affidavits, Doc.
2 at pp. 3-4). That same day, Johnson's attorney
faxed a letter to the Appeals Council confirming the
telephone conversation and requesting a copy of the written
decision. She also requested that the letter be considered
“a formal request for extension of time to commence a
civil action on Mr. Johnson's behalf.” (Doc.
8-1). The Appeals Council never responded to
Johnson's request for an extension of time and a copy of
the decision. On August 4, 2017, Johnson's attorney
contacted the local SSA office in Blytheville and obtained a
copy of the Appeals Council's written denial of benefits.
undisputed that Johnson initiated this action within sixty
days of being provided with a copy of the Appeals
Council's decision, and sixty-five days of being advised
the opinion existed. See, e.g., Jenkins
v. Astrue, 142 Soc. Sec. Rep. Serv. 237, 2009 WL 1364349
(D. Del. 2009) (claimant was required to submit his civil
action within 65 days after notice of the Appeals Council
denial of his claim).
Commissioner offers a declaration from Cristina Prelle
stating that a review of Johnson's file shows that on
February 6, 2017, the Appeals Council sent notice of the
final decision to Johnson and his representative, at their
last known addresses. A presumption of regularity applies to
official acts of government agencies, including the mailing
of official documents. Wilburn v. Astrue, 626 ...