United States District Court, E.D. Arkansas, Western Division
CINDY M. WOODS Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
PROPOSED FINDINGS AND RECOMMENDATIONS
VOLPE, UNITED STATES MAGISTRATE JUDGE
following recommended disposition has been sent to United
States District Judge Susan Webber Wright. Any party may
serve and file written objections to this recommendation.
Objections should be specific and should include the factual
or legal basis for the objection. If the objection is to a
factual finding, specifically identify that finding and the
evidence that supports your objection. An original and one
copy of your objections must be received in the office of the
United States District Court Clerk no later than fourteen
(14) days from the date of the findings and recommendations.
The copy will be furnished to the opposing party. Failure to
file timely objections may result in a waiver of the right to
appeal questions of fact.
are objecting to the recommendation and also desire to submit
new, different, or additional evidence, and to have a new
hearing for this purpose before either the District Judge or
Magistrate Judge, you must, at the time you file your written
objections, include the following:
the record made before the Magistrate Judge is inadequate.
the evidence to be proffered at the new hearing (if such a
hearing is granted) was not offered at the hearing before the
details of any testimony desired to be introduced at the new
hearing in the form of an offer of proof, and a copy, or the
original, of any documentary or other non-testimonial
evidence desired to be introduced at the new hearing.
this submission, the District Judge will determine the
necessity for an additional evidentiary hearing. Mail your
objections and “Statement of Necessity” to:
Clerk, United States District Court Eastern District of
Arkansas 600 West Capitol Avenue, Suite A149 Little Rock, AR
Commissioner seeks dismissal of this case claiming
Plaintiff's Complaint is untimely. (Doc. No. 10.)
Plaintiff has not responded.
42 U.S.C. § 405(g) requires the commencement of a civil
action to be within sixty (60) days after the date the Notice
of Final Decision is mailed to the Plaintiff, or within any
time as extended by the Appeals Council of the Social
Security Administration. Section 405(g) says:
Any individual, after a final decision of the Commissioner
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 may allow.
42 U.S.C. § 405(g). Judicial review of the
Commissioner's determination is limited in scope by 42
U.S.C. § 405(g). The Supreme Court has specifically held
that § 405(h) prevents review of the Commissioner's
decisions except as provided in § 405(g) of the Act.
Sheehan v. Secretary of Health, Ed. &
Welfare, 593 F.2d 323, 325 (8th Cir.1979) (citing
Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45
L.Ed.2d 522 (1975)). So the final decision of the
Commissioner is binding unless the claimant files her federal
civil action within sixty (60) days after receipt of the
notice of the Appeals Council's decision. See
also 20 C.F.R. §§ 404.981, 422.210. The date
of receipt is presumed to be five days after the date of such
notice, unless there is a reasonable showing to the contrary
made to the Appeals Council. 20 C.F.R. §§ 404.901,
422.210(c). Although the Supreme Court has held that the
sixty (60) days is a period of limitation and in a rare case
may be tolled, Bowen v. City of New York, 476 U.S.
467, 481 (1986), the Eighth Circuit has upheld the 60-day
time limitation. Hammonds v. Bowen, 870 F.2d 446,
448 (8th Cir.1989) and Turner v. Bowen, 862 F.2d
708, 710 (8th Cir.1988) (per curiam).
the Appeals Council's final decision is dated August 20,
2018. (Doc. No. 11-1 at 30.) The document was mailed to the
same address Plaintiff has utilized as her mailing address
for this lawsuit. The order specifically states, “If
you disagree with our action, you may ask for court review of
the Administrative Law Judge's decision by filing a civil
action. . . You may file a civil action (ask for court
review) by filing a complaint in the United States District
Court for the judicial district in which you live.”
(Id. at 31.) Import to this decision, the order also
states, “You have 60 days to file a civil action (ask
for court review). The 60 days start the day after you
receive this letter.” (Id. at 32.) The order
also stated, and the regulations provide, that receipt of the
notice would be presumed five days thereafter, on August 25,