United States District Court, E.D. Arkansas, Western Division
SHARON L. BARBEE PLAINTIFF
ANDREW SAUL, Commissioner Social Security Administration DEFENDANT
PROPOSED FINDINGS AND RECOMMENDATIONS
following recommended disposition has been sent to the United
States District Court Judge D.P. Marshall, Jr. 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 finds and
evidence that supports your objection. Your objections must
be received no later than fourteen (14) days from the date of
the findings and recommendations. Failure to file timely
objections may result in 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 hearing
for this purpose before the District Judge, you must, at the
same time that you file your written objections, include the
1. Why the record made before the Magistrate Judge is
2. Why the evidence proffered at the hearing before the
District Judge (if such a hearing is granted) was not offered
before the Magistrate Judge.
3. The details of any testimony desired to be introduced at
the hearing before the District Judge 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 hearing before the District Judge.
this submission, the District Judge will determine the
necessity for an additional evidentiary hearing, either
before the Magistrate Judge or before the District Judge.
is the Defendant's Motion to Dismiss and Brief in
Support. (DE # 11) To date, the Plaintiff has not filed a
response to the motion. For the reasons that follow, it is
recommended that the motion be GRANTED.
November 9, 2009, the Administrative Law Judge (ALJ) issued
an unfavorable decision denying Plaintiff's application
for disability benefits. (DE # 2 pp. 14) The Plaintiff filed
an untimely request for review of that decision on March 2,
2010. (DE # 11-1 pp. 16) On August 20, 2010, the Appeals
Council sent the Plaintiff a letter stating that she should
send a statement explaining the reasons why she did not file
her request for review within the required sixty (60) days.
(DE # 11-1 pp.17-18) The Plaintiff provided no response to
the Appeals Council's request. On March 3, 2011, the
Appeals Council sent the Plaintiff a letter stating that the
untimely request for review was denied and dismissed. (DE #
11-1 pp. 19-21) This denial rendered the ALJ's decision
the “final decision” of the Commissioner.
See 20 C.F.R. §§ 404.981; 416.1481.
filed her civil action in this Court on April 18, 2019.
Defendant asserts that Plaintiff's action should be
dismissed as it was filed more than sixty (60) days after
receipt of the Appeals Council's action. Plaintiff has
not filed a response objecting to the Defendant's motion.
Social Security Act provides the following:
Any individual, after any final decision of the Commissioner
of Social Security made after a hearing to which he was a
party . . . 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.
42 U.S.C. § 405(g). Generally, receipt of notice
“is presumed five days after the date of notice, unless
there is a reasonable showing to the contrary; and that
notice sent to the individual's representative has the
same force and effect as notice sent to the
individual.” Bess v. Barnhart, 337 F.3d 988,
989-90 (8th Cir. 2003) (per curiam); see 20 C.F.R.
§§ 404.901; 416.1401. Receipt of notice “by
either the individual or the individual's attorney,
whichever occurs first, triggers the sixty-day limitations
period.” Bess, 337 F.3d at 990. The United
States Supreme Court has established that the sixty-day time
period is not jurisdictional, but rather constitutes a
statute of limitation. Bowen v. City of New York,
476 U.S. 478 (1986) (citing Mathews v. Eldridge, 424
U.S. 319, 328 n. 9 (1976); Weinberger v. Salfi, 422
U.S. 749, 764 (1975)). “[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. It is well-established that failure to comply with the
sixty-day limitation warrants dismissal. See Bess,
supra; Turner v. Bowen,862 F.2d 708 (8th
Cir. 1988). In this case, the Appeals Council denied
Plaintiffs request for review of the ALJ's decision on
March 3, 2011. Plaintiff did not file this complaint until
April 18, 2019. Given that Plaintiff waited over eight years
after the Appeals Council dismissed her request for review,
there can be no question that the complaint is untimely.
Furthermore, the Plaintiff has presented no proof or even
made a claim that she did not receive the notice of denial,
and thus the presumption that it was received five ...