United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER GRANTING MOTION TO
HORN BOOM UNITED STATES DISTRICT COURT JUDGE
matter is before the Court on the Defendant Nancy A.
Berryhill, Commissioner of Social Security's Motion to
Dismiss for failure to state a claim pursuant to Fed.R.Civ.P.
12(b)(6). [R. 14] Plaintiff Josephine Gates Miller responded
to Defendant's motion [R. 15], Defendant filed its brief
in reply [R. 16], and, with leave of the court, Plaintiff
filed a sur-reply [R. 19] This matter, being fully briefed,
is now ripe for review. For the reasons stated herein, the
Court will GRANT Defendant's Motion.
case regards the sixty-day deadline for filing a civil suit
to challenge a final decision by the Commissioner of Social
Security under 42 U.S.C. § 405(g), and when it is
appropriate to equitably toll that deadline. Because this
matter is before the Court on a motion to dismiss pursuant to
Rule 12(b)(6), the “complaint is viewed in the light
most favorable to [the plaintiff]; the allegations in the
complaint are accepted as true, and all reasonable inferences
are drawn in the plaintiff's favor.” Gavitt v.
Born, 835 F.3d 623, 640 (6th Cir. 2016); Total
Benefits Planning Agency, Inc. v. Anthem Blue Cross &
Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008).
to Plaintiff's Amended Complaint, she originally applied
for benefits under the Social Security Administration
Disabled Adult Child program on September 15, 2011. [R. 1 p.
2] Her application and request for reconsideration were both
denied. [Id.] Plaintiff requested a hearing before
an Administrative Law Judge (“ALJ”) and was
provided one on November 8, 2013. [Id.] This hearing
regarded whether she had engaged in Substantial Gainful
Activity after reaching the age of 22 years, and Plaintiff
claims that the ALJ ruled that she had not. [Id.] At
the hearing, the ALJ made no decision as to her disability
status. [Id.] Roughly six months later, Plaintiff
wrote to the Social Security Administration, asking about the
status of her case. On May 19, 2014, she received a letter
informing her that she had not applied for benefits, which
Plaintiff asserts was mistaken. [Id.]
then applied for benefits on May 21, 2014. Her application
and Request for Reconsideration of the application were both
denied. [Id.] Plaintiff applied for a hearing, which
was held before an ALJ in Lexington, Kentucky on August 26,
2016. [Id.] The ALJ found that Plaintiff was not
disabled as defined in section 223(d) of the Social Security
Act prior to April 28, 1976, the date she reached the age of
22. [Id.] On November 7, 2017, the Social Security
Administration Appeals Council upheld the denial without a
hearing. [Id.] This made the ALJ's decision the
“final decision” of the commissioner, which
Plaintiff could challenge in court under 42 U.S.C.
§405(g). Plaintiff claims that she did not receive
notice of this decision, and therefore did not know that
there was a deadline to file a civil suit challenging the
decision. [Id.] On April 6, 2018, Plaintiff went to
her local Office of Disability Adjudication and Review
(“ODAR”) to inquire about the status of her case,
where she was given the copy of the notice letter indicating
that the Appeals Council had rejected her request for review.
[R. 1 p. 4; R 15 p. 5] On June 6, 2018, Miller filed this
action for court review of the ALJ's decision. The
Commissioner then filed a motion to dismiss, claiming
Plaintiff missed the filing deadline imposed by 42 U.S.C.
actions challenging a final decision of the Commissioner of
Social Security must be “commenced within sixty days
after the mailing to [plaintiff] notice of such decision or
within such further time as the Commissioner of Social
Security may allow.” 42 U.S.C. 405(g); 20 C.F.R. §
422.210(c) (“[a civil action] must be instituted within
60 days after the Appeals Council's notice of denial of
request for review of the administrative law judge's
decision or notice of the decision by the Appeals Council is
received by the individual . . . except that this time may be
extended by the Appeals Council upon a showing of good
cause”). Under Section 405(g), “mailing” is
interpreted as the date of receipt by the individual of the
Appeal's Council's notice of denial for a request for
review. 20 C.F.R. § 422.210(c); see also Harris v.
Comm'r of Soc. Sec., 25 F. App'x. 273, 273-74
(6th Cir. 2001). The date of receipt is presumed to be five
days after the notice's date, unless the applicant makes
a showing to the contrary. Id.
case, the Commissioner initially argued that the Social
Security Admission's Appeals Council notified Plaintiff
of its decision to deny her request for review of the
ALJ's decision on November 7, 2017. [R. 14 p. 5] The
notice was dated November 7, 2017 [R. 14-2 pp. 3, 26; R. 15
p. 3] Therefore, the Court presumes the Plaintiff received
the decision five days after November 7, 2017, unless she
shows that she did not actually receive notice. 20 C.F.R.
§ 422.210(c); Harris, 25 Fed.Appx. at 273.
Ordinarily, there is a presumption of the delivery of mail.
McKentry v. Sec'y of Health and Human Services,
655 F.2d 721, 724 (6th Cir. 1981). However, Plaintiff claims
that she did not receive a copy of the decision until April
6, 2018, when she went to the ODAR herself to inquire about
the status of her case. [R. 1 p. 4; R. 15 p. 2] She has also
attached to her complaint a copy of the decision she received
that day, stamped “Received Apr 06 2018 Lexington
ODAR” [R. 1-5] It would make little sense that
Plaintiff would go to the ODAR office inquiring about the
status of her case if she had actually received notice of the
decision. Viewing the evidence in the light most favorably to
the Plaintiff, the Court finds that she has made a showing
that she did not receive the decision until April 6, 2018.
even when using April 6, 2018 as the date of receipt,
Plaintiff's suit was still untimely. She filed her civil
suit on June 6, 2018, [R. 15 p. 2] which is sixty-one (61)
days after the date she received the Notice of Appeals
Council Action. This is undisputedly beyond the sixty-day
limit provided by 405(g). 405(g) is treated as the statute of
limitations for such civil suits; the waiver of sovereign
immunity is conditional on its existence, and it therefore
must be strictly construed. Bowen v. City of New
York, 476 U.S. 467, 479 (1986). Plaintiff did not
commence her lawsuit until one day after the limitations
period had run, so absent a waiver by the Commissioner or
showing that an equitable tolling of the limitations period
applies, her case should be dismissed.
filed her suit one day beyond 405(g)'s statute of
limitations, Plaintiff asks that the statutory period be
equitably tolled by that one day. Section 405(g) allows for
equitable tolling of the statute of limitations by the
Commissioner, or by the courts where “the equities in
favor of tolling the limitations period are ‘so great
that deference to the agency's judgment is
inappropriate.'” Bowen, 476, U.S. at 480
(quoting Matthews v. Eldridge, 424 U.S. 319, 330
are two possible tests for evaluating whether to equitably
toll the statute of limitations in this case. See
McElfresh v. Comm'r of Soc. Sec., No. 17-3012, 2017
WL 6820168, at *2 (6th Cir. Sept. 15, 2017). The Sixth
Circuit has used a five-factor test in social security appeal
cases laid ...