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Grant v. Colvin

United States District Court, W.D. Missouri, Central Division

July 9, 2014

SHERYL GRANT, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER

NANETTE K. LAUGHREY, District Judge.

Defendant Commissioner of Social Security's motion to dismiss Plaintiff Sheryl Grant's Complaint [Doc. 7] is DENIED.

I. Background

An administrative law judge issued a decision denying Grant's claims for benefits under Title XVI of the Social Security Act on February 23, 2011. [Doc. 7-1.]

Grant asked the Appeals Council for review of the decision on March 11, 2011. [ Id. ] Grant's attorney filed additional medical records with the Appeals Council on April 13, 2012; October 5, 2012; and March 22, 2013. [Docs. 8-1, 8-2, and 8-3.] On November 1, 2013, Grant's attorney sent a letter to the Appeals Council, listing the dates he had sent the additional medical records; noting that he had not received any correspondence or notifications concerning the appeal; and asking for an update. [Doc. 8-4.]

The decision had already been rendered on June 29, 2012. [Doc. 5.] A cover letter bearing the same date, from the Appeals Council, informed Grant of her right to commence a civil action for review within 60 days after receipt of the letter, and explained that Grant would be assumed to have received it five days from the date of the letter. [Doc. 7-1, p. 27.] The letter was addressed to Grant at an address in Marionville, Missouri, and indicated a copy was sent to her attorney at his office address in Springfield, Missouri. [Doc. 7-1, pp. 26 and 28.] Grant's attorney's address never changed throughout the course of the proceedings. [Doc. 8, pp. 1-2.]

In February 2014, Grant's attorney received a phone call from Appeals Council staff, who told him about the decision. [Doc. 8, p. 2.] Grant's attorney sent the Appeals Council a letter on February 11, 2014 by certified mail and facsimile, stating that neither he nor his client had received the decision, and asking for a copy. [Doc. 8-5.] The Appeals Council mailed a copy and Grant's attorney filed an appeal in this Court on March 5, 2014. [Docs. 1 and 5.]

II. Discussion

The Commissioner argues that Grant's Complaint was not timely filed and must be dismissed. Because equitable tolling applies under the circumstances, Grant's complaint was timely filed.

It is well-settled that the United States is immune from suit unless it consents to be sued. "[T]he terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." Lehman v. Nakshian, 453 U.S. 156, 160 (1981) (quotations omitted). Accordingly, Congress may prescribe the procedures and conditions required for judicial review of administrative orders. City of Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336 (1958).

With respect to judicial review of Social Security determinations, the Social Security Administration 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 Commissioner interprets the Act to require the initiation of a civil action within 60 days of the claimant's receipt of the notice of the Commissioner's final decision. 20 C.F.R. §§ 404.981, 416.1481. See also 20 C.F.R. §§ 404.1715(b), 416.1515(b) (a notice sent to the claimant's representative has the same force and effect as a notice sent to the claimant). The Commissioner presumes that the claimant received the notice five days after the notice issued, unless the claimant demonstrates otherwise. 20 C.F.R. §§ 404.901, 416.1401. In short, a claimant must initiate judicial review within 65 days of the Commissioner's final decision.

But the time to initiate judicial review may be tolled by a court "where the equities in favor of tolling the limitations period are so great that deference to the agency's judgment is inappropriate." Bowen v. City of New York, 476 U.S. 467, 480 (1986). Equitable tolling has been allowed when the government has hindered a claimant's attempts to exercise her rights by acting in a misleading or clandestine way. Turner v. Bowen, 862 F.2d 708, ...


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