United States District Court, E.D. Missouri, Eastern Division
LISA K. MILLER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
CRITES-LEONI, UNITED STATES MAGISTRATE JUDGE
Lisa K. Miller brings this action pro se pursuant to
42 U.S.C. § 405(g), seeking judicial review of the
Social Security Administration Commissioner's denial of
her application for benefits under Title II of the Social
Security Act. Presently pending before the Court is
Defendant's Motion to Dismiss (Doc. 13), in which
Defendant contends that this action must be dismissed because
it was untimely filed. Miller has filed a Response in
Opposition to Defendant's Motion to Dismiss. (Doc. 14.)
application for benefits was denied in a written opinion by
an administrative law judge (“ALJ”) dated April
24, 2014. (Doc. 13-2.) On August 12, 2015, the Appeals
Council denied Miller's request for review, and notified
Miller that she had sixty days to file a civil action. (Doc.
13-3.) The Appeals Council further stated that the sixty-day
period starts the day after Miller received the Appeals
Council's letter, and that it is assumed she received the
letter five days after the date of the letter. Id.
In a letter dated October 19, 2015, Miller requested an
extension of time to file a civil action. (Doc. 13-4.) On
January 12, 2016, the Appeals Council granted Miller's
request for an extension, and extended the time within which
she could file a civil action to thirty days from the date
she received that letter. (Doc. 13-5.) The Appeals Council
again explained that that it is assumed she received the
letter within five days after the date of the letter.
Id. Miller filed the instant Complaint on May 16,
Defendant's Motion to Dismiss
argues that Miller's appeal of the Commissioner's
final decision must be dismissed because it was untimely
Response, Miller states that she disagrees with
Defendant's Motion to Dismiss. (Doc. 14 at 1.) Miller
then provides argument in support of her claim that the ALJ
erred in denying her application for benefits.
42 U.S.C. § 405(g) governs judicial review of final
decisions of the Commissioner in Social Security matters.
Pursuant to § 405(g),
[a]ny 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.
promulgated regulations provide that a civil action under
§ 405(g) “must be commenced within sixty days
after notice of the Appeals Council decision ‘is
received by the individual.'” Bess v.
Barnhart, 337 F.3d 988, 989 (8th Cir. 2003) (per
curiam ) (quoting 20 C.F.R. § 422.210(c)); see
also 20 C.F.R. §§ 404.981, 416.1481. The
regulations further provide that the date the individual
receives notice is presumed to be five days after the date of
the notice, “unless there is a reasonable showing to
the contrary.” 20 C.F.R. § 422.210(c); see
also 20 C.F.R. §§ 404.901, 416.1401.
sixty-day time period is not jurisdictional, but rather
constitutes a statute of limitations. Bowen v. City of
New York, 476 U.S. 467, 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, in the absence of equitable tolling,
failure to comply with the sixty-day limitation warrants
dismissal. See generally Bess, 337 F.3d 988;
Turner v. Bowen, 862 F.2d 708, 710 (8th Cir. 1988)
(per curiam ).
case, the Appeals Council extended the time in which to file
a civil action to thirty days from the date of its January
12, 2016 letter. (Doc. 13-5.) The law presumes that Miller
received this letter within five days after its
issuance-January 17, 2016-unless there is a showing to the
contrary. See 20 C.F.R. '' 404.901,
416.1401. Miller has made no showing to the contrary.
Accordingly, Miller had thirty days from January 17, 2016,
that is, through February 16, 2016, by which to bring a civil
action seeking judicial review of the Commissioner's
final decision. The instant cause was filed on May 16, 2016.
Miller did not seek another extension of time from the
Commissioner to file a civil action. As such, the instant
cause of action is untimely.
noted above, equitable tolling of the sixty-day limitation is
allowed “in some cases, ” City of New
York, 476 U.S. at 480, and specifically in those cases
“where the equities in favor of tolling the limitations
period are ‘so great that deference to the agency's
judgment is inappropriate.'” Id. (quoting
Eldridge, 424 U.S. at 330). The Eighth Circuit has
allowed equitable tolling in situations where the claimant
has actively pursued her judicial remedies by filing a
defective pleading during the statutory period, or where
circumstances involve conduct (by someone other than the
claimant) that is misleading or fraudulent such as where the
claimant has been induced or tricked by her adversary's
misconduct into allowing the filing deadline to pass.
Medellin v. Shalala, 23 F.3d 199, 204 (8th Cir.
1994); Turner, 862 F.2d at 710 (citing Smith v.
McClammy, 740 F.2d 925, 927 (11th Cir. 1984)). Equitable
relief, however, is typically extended “only
sparingly.” Medellin, 23 F.3d at 204. Miller
has provided no argument or evidence demonstrating that
equitable tolling applies in this case.
as the evidence before the Court shows the instant civil
action to be untimely filed under 42 U.S.C. § 405(g),
and Miller has failed to show that circumstances exist to