United States District Court, W.D. Arkansas, Fayetteville Division
ERIN L. WIEDEMANN, UNITED STATES MAGISTRATE JUDGE.
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).
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).
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
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.
Complaint 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,
FAYemail@example.com.” (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.” (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).
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.
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
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
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).
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
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 ...