United States District Court, D. Montana, Billings Division
SHEILA K. KESSLER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
TIMOTHY J. CAVAN, UNITED STATES MAGISTRATE JUDGE
Sheila K. Kessler (“Plaintiff”) brings this
action pursuant to 42 U.S.C. § 405(g), seeking review of
the final decision of the Commissioner of Social Security
(“the Commissioner”), in which the Commissioner
denied her application for benefits under Title II of the
Social Security Act. (Doc. 2.) Presently before the Court is
the Commissioner's Motion to Dismiss Plaintiff's
Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) on grounds that it is untimely. (Doc. 10.) Plaintiff
has filed an opposition. (Doc. 13). The Commissioner did not
file a reply, and the time for doing so has expired.
Therefore, the motion is fully briefed and ripe for the
Court's review. Having considered the parties'
submissions, the Court finds the Commissioner's motion
should be DENIED.
April 5, 2013, Plaintiff applied for Social Security
Disability Insurance under Title II of the Social Security
Act. (Doc. 2 at ¶ 5.) Plaintiff's application was
denied, and she appealed through the administrative process.
(Id.) On January 30, 2015, following a hearing, an
Administrative Law Judge (ALJ) issued a written decision
denying Plaintiff's claim. (Id. at ¶¶
21, 2015, the Appeals Council sent Plaintiff notice that her
request for review of the ALJ's decision was denied.
(Id. at ¶ 8; Docs. 11-1 at ¶ 3(a); 11-3.)
The notice informed Plaintiff that she had 60 days to file a
civil action to seek review of the ALJ's decision. (Docs.
11-1 at ¶ 3(a); 11-3.) The notice also informed
Plaintiff that the 60 days started the day after she received
the letter. (Doc. 11-3.)
September 8, 2016, Plaintiff filed her Complaint in this
Court. (Doc. 2.) The Commissioner now moves to dismiss the
Complaint as untimely. (Doc. 10.)
Timeliness of the Complaint
to 42 U.S.C. § 405(g), an individual who has been denied
benefits under the Social Security Act has 60 days to seek
judicial review of the Commissioner's decision in federal
court. Section 405(g) provides:
Any 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.
42 U.S.C. § 405(g).
the Social Security Administration's regulations, the
60-day period begins when the claimant receives the notice,
which is presumed to be 5 days after the date the notice is
mailed, unless the claimant shows the Appeals Council
otherwise. 20 C.F.R. § 422.210(c). The regulations
further provide that the 60-day time period can be extended
by the Appeals Council upon a showing of good cause. 20
C.F.R. § 404.982. Circumstances where good cause may
exist include serious illness or “unusual or
unavoidable circumstances . . . which prevented you from
filing timely.” 20 C.F.R. § 404.911(b).
the Appeals Council notice was dated June 21, 2016. (Doc.
11-3.) Plaintiff is presumed to have received the notice 5
days later, on June 26, 2016. 20 C.F.R. § 404.982. It is
undisputed that Plaintiff received the notice. Therefore,
Plaintiff had until August 25, 2016 to timely file her
Complaint was filed on September 8, 2016, 14 days after the
statutory period had run. (Doc. 2.) Plaintiff did not request
an extension of time to file the Complaint from the Appeals
Council. (Doc. 11-1 at ¶ 3(b).) ...