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Miller v. Commissioner of SSA

United States District Court, E.D. Kentucky, Central Division, Lexington

November 15, 2019

JOSEPHINE GATES MILLER, Plaintiff,
v.
COMMISSIONER OF SSA, Defendant.

          MEMORANDUM OPINION AND ORDER GRANTING MOTION TO DISMISS

          CLARIA HORN BOOM UNITED STATES DISTRICT COURT JUDGE

         This 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.

         I. Background

         This 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).

         According 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.]

         Plaintiff 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. § 405(g).

         II. Discussion

         A. Deadline

         Civil 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.

         In this 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.

         However, 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.

         B. Equitable Tolling

         As she 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 (1976)).

         There 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 ...


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