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Taylor v. Berryhill

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

February 21, 2018

DANNA TAYLOR PLAINTIFF
v.
NANCY A. BERRYHILL, Commissioner Social Security Administration DEFENDANT

          MEMORANDUM OPINION

          HON. ERIN L. WIEDEMANN, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Danna Taylor, brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a decision of the Commissioner of Social Security (Commissioner). Defendant has filed a motion to dismiss Plaintiff's claim on the ground that it is barred by the time limitation specified in 42 U.S.C. § 405(g). (Doc. 7). Plaintiff filed a response asserting that there were “equitable reasons for the Commissioner to toll the 60-day limit because of circumstances beyond Plaintiff's control due to a typographical error.” (Doc. 8).

         On July 26, 2016, the ALJ issued a written decision denying Plaintiff's application for supplement security income (SSI) benefits. (Doc. 7, Prelle Decl. Exh. 2, p.3). Plaintiff subsequently requested review of the decision. Id. On August 8, 2017, the Appeals Council sent, by mail addressed to the Plaintiff at 309 So Block, Apt. 5, Fayetteville, AR 72702, with a copy to the representative, notice of the denial of Plaintiff's request for review and of the right to commence a civil action within sixty days from the date of receipt. (Doc. 7, Prelle Decl. Exh. 2, pp.3, 28-30). There was no evidence of any request to the Appeals Council for an extension of time to file a civil action. (Doc. 7, Prelle Decl. Exh. 2, p. 3). On October 25, 2017, Plaintiff commenced this action in federal district court requesting review of the Commissioner's unfavorable decision. (Doc. 1).

         The Defendant asserts that Plaintiff's complaint was not filed timely, as it was not filed within the time limitation specified in 42 U.S.C. § 405(g), which requires that a civil action be commenced within sixty days after the date of mailing to the Plaintiff of notice of the final decision of the Commissioner of Social Security, or within any time as extended by the Appeals Council of the Social Security Administration.

         Discussion

         The Appeals Council's decision denying Plaintiff's request for review is dated August 8, 2017. Under the regulations, receipt of the notice would be presumed five days thereafter, in this case on August 13, 2017, unless there is a reasonable showing to the contrary. Thus, to be considered timely, Plaintiff must have commenced her civil action on or before October 12, 2017.

         Plaintiff's Complaint[1] was filed on October 25, 2017, and the record before the court shows no earlier commencement date. Plaintiff's attorney asserts that she attempted to file the Complaint on October 12, 2017, the date the Complaint was due, by “uploading” the Complaint “as directed by the Clerk of the Court” and sending the document “to the e-mail address, FAY-info@arwd.uscourts.gov.” (Doc. 8, Plaintiff's Response, p. 1). Plaintiff's Response further states that she “did not receive confirmation from the court that it had received the document.” (Doc. 8, Plaintiff's Response, p. 2). On October 25, 2017, Plaintiff's attorney presented at the Office of the Clerk of the Court, where the Clerk confirmed that the Complaint was not received, and “found that the document had been sent to the wrong e-mail address.”[2] (Doc. 8, Plaintiff's Response, p. 2). While present at the Clerk's office, Plaintiff's attorney proceeded to file the Complaint, which was thirteen days after the deadline. (Doc. 8, Plaintiff's Response, p. 2). Plaintiff's attorney states she had “no way of knowing the document had never arrived at the court.” (Doc. 8, Plaintiff's Response, p. 2).

         Title 42 U.S.C. § 405(g) provides for judicial review of final decisions of the Commissioner of Social Security and includes a sixty-day statute of limitations for seeking such review. Pursuant to § 405(g),

[a]ny individual, after any final decision of the Commissioner of Social Security 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 of Social Security may allow.

         The relevant regulations provide that a civil action under § 405(g) “must be commenced within 60 days after notice of the Appeals Council decision is received by the individual ....

         except that this time may be extended by the Appeals Council upon a showing of good cause.” 20 C.F.R. §422.210(c). The regulations further provide that the date the individual receives notice is “presumed to be 5 days after the date of such notice, unless there is a reasonable showing to the contrary.” Id.; see also Cook v. Comm'r of Soc. Sec., 480 F.3d 432, 436 (6th Cir. 2007) (accepting the SSA's interpretation that “mailing” is the same as “receipt” in Social Security cases). Receipt of notice by either the claimant or the claimant's attorney, whichever occurs first, triggers the sixty-day limitations period. Bess v. Barnhart, 337 F.3d 988, 990 (8th Cir. 2003) (per curiam).

         The sixty-day time period is not jurisdictional, but rather constitutes a statute of limitations. Bowen v. City of New York, 476 U.S. 467, 478, (1986). “[T]he statute of limitations embodied in § 405(g) is a mechanism by which Congress was able to move cases to speedy resolution in a bureaucracy that processes millions of claims annually.” Id. at 481. In the absence of equitable tolling, failure to comply with the sixty-day limitations period warrants dismissal. Bess, 337 F.3d at 989-90; Turner v. Bowen, 862 F.2d 708, 710 (8th Cir. 1988) (per curiam).

         In the Eighth Circuit, equitable tolling has been used “only sparingly.” Medellin v. Shalala, 23 F.3d 199, 204 (8th Cir. 1994) (citing Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990)). The Court in Irwin stated:

We have allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period, or where the complainant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass. We have generally been much less forgiving in receiving late ...

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