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Kessler v. Berryhill

United States District Court, D. Montana, Billings Division

May 23, 2017

SHEILA K. KESSLER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

          TIMOTHY J. CAVAN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         I. FACTUAL BACKGROUND

         On 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 ¶¶ 6-7.)

         On June 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.)

         On September 8, 2016, Plaintiff filed her Complaint in this Court. (Doc. 2.) The Commissioner now moves to dismiss the Complaint as untimely. (Doc. 10.)

         II. DISCUSSION

         A. Timeliness of the Complaint

         Pursuant 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).

         Under 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).

         Here, 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.

         The 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).) ...


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