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Johnson v. Berryhill

United States District Court, E.D. Arkansas, Jonesboro Division

January 2, 2018

VINCENT JOHNSON PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration DEFENDANT

          ORDER

         Pending 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.

         For the 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.

         I. BACKGROUND

         On 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).

         Johnson 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 pp. 2-3).

         The parties dispute whether these facts justify equitable tolling of the limitations period for seeking judicial review of the Commissioner's final decision denying benefits.

         II. DISCUSSION

         By 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.

         The 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).

         Johnson contends that neither he nor his attorney[1] 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.

         It is 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).

         The 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.[2] A presumption of regularity applies to official acts of government agencies, including the mailing of official documents. Wilburn v. Astrue, 626 ...


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