United States District Court, W.D. Kentucky at Paducah Division.
November 14, 2014
KIMBERLY A. MEDINA, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
LANNY KING, Magistrate Judge.
This matter is before the Court upon the Commissioner's motion to dismiss Plaintiff's complaint seeking judicial review of the final decision of the Commissioner as having been filed outside the 60-day statute of limitations established by 42 U.S.C. § 405(g). Docket Number (DN) 8. This matter is ripe for determination.
For the reasons below, the motion is DENIED.
42 U.S.C. § 405(g) provides a 60-day window in which to obtain review of a final decision of the Commissioner:
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.
"The Commissioner has interpreted mailing' as the date of the applicant's receipt of the decision, and the date of receipt is presumed to be five days after the notice's date, unless the applicant makes a reasonable showing to the contrary." Harris v. Commissioner, 2001 WL 1590669 (6th Cir.) citing 20 C.F.R. § 422.210(c).
For the reasons below, Plaintiff has made a reasonable showing that she did not receive the Commissioner's notice of decision in the mail at any time. Therefore, the statute of limitations did not commence running, and the complaint was timely filed.
Plaintiff's affidavit indicates the reasons why "[i]t is my belief that I did not receive any notice from the Appeals Council regarding my claim." DN 12-1.
The Court finds the affidavit to be credible. However, under this Court's standards, "[b]y itself, an affidavit from the claimant asserting non-receipt is not enough to rebut the [5-day] presumption." Ashcraft v. Commissioner, Civil Action No. 5:11-CV-00144-TBR, 2012 WL 1231789 (W.D.Ky) citing Kinash v. Commissioner, 129 F.3d 736, 738 (5th Cir.1997).
The Appeals Council routinely mails out copies of its decision to both the claimant and counsel of record, presumably at about the same time. The 5-day presumption is rebutted in this case by the combination of Plaintiff's affidavit and counsel's affidavit and date-stamped copy of the Appeals Council's decision. The decision is dated February 24, 2014, and the date-stamp is March 3, 2014 2014 2 days beyond the 5-day presumption. DN 9-2.
This case thus falls within the line of cases discussed in Salter v. Commissioner, 2014 WL 1280269 (N.D.Ohio) in which "receipt of notice by plaintiff's attorney  buttress[es] plainitff's claim" of non-receipt and overcomes the 5-day presumption. See Salter citing, inter alia, Mclaughlin v. Commissioner, 2011 WL 5085011 (1st Cir.) for the proposition that the 5-day presumption is overcome where plaintiff provided "explanation for why she was sure that receipt had occurred after the presumptive date [if at all] and she submitted evidence in support, i.e., her attorney's copy of the notice, dated-stamped one day after the presumptive date."
For the foregoing reasons, the Commissioner's motion to dismiss Plaintiff's complaint as having been untimely filed (DN 8) is DENIED.