Johnson v. Colvin

Filing 14

MEMORANDUM OPINION AND ORDER directing that def Colvin's 10 MOTION to Dismiss or, in the Alternative, Motion for Summary Judgment is GRANTED, and plf Otey Lane Johnson's complaint is DISMISSED WITH PREJUDICE. Signed by Honorable Judge Gray Michael Borden on 1/12/16. (djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
OTEY LANE JOHNSON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Defendant.

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CASE NO. 1:15-cv-595-GMB
(WO – Do Not Publish)

MEMORANDUM OPINION AND ORDER
Before the court is the Motion to Dismiss or, in the Alternative, Motion for
Summary Judgment filed by Defendant Carolyn W. Colvin, Acting Commissioner of
Social Security (the “Commissioner”). Doc. 10. The Commissioner contends that the
complaint filed by Plaintiff Otey Lane Johnson (“Johnson”) is due to be dismissed because
it was not timely filed. On November 16, 2015, the court entered an order directing
Johnson to show cause why the Commissioner’s motion should not be granted. Doc. 11.
Johnson, who is represented by counsel, did not respond to the court’s show cause order,
and the deadline to respond has passed. Accordingly, after a thorough review of the
complaint, the Commissioner’s unopposed motion, and the relevant law, the court finds
that the Commissioner’s motion (Doc. 10) is due to be GRANTED.1

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Pursuant to 28 U.S.C. § 636(c)(1) and Local Rule 73.1 of the Middle District of Alabama’s Local
Rules, the parties have consented to the undersigned United States Magistrate Judge conducting
all proceedings and ordering the entry of a final judgment in this case. Docs. 12 & 13.

I. STANDARD OF REVIEW
Arguing that Johnson’s complaint is time-barred, the Commissioner seeks to
dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure
for failure to state a claim upon which relief can be granted, or in the alternative for a
summary judgment in the Commissioner’s favor pursuant to Rule 56 of the Federal Rules
of Civil Procedure.
If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings
are presented to and not excluded by the court, the motion must be treated as
one for summary judgment under Rule 56. All parties must be given a
reasonable opportunity to present all the material that is pertinent to the
motion.
Fed. R. Civ. P. 12(d). Matters outside the pleadings have been presented and considered
by the court—specifically, the Declaration of Patrick J. Herbst (Doc. 10-1), the Notice of
Decision−Unfavorable (Doc. 10-2), and the Notice of Appeals Council Action (Doc. 10-3).
Thus, the court will treat the Commissioner’s motion as one for summary judgment rather
than as a motion to dismiss.2
Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). However, “if the evidence is such that a reasonable jury could return

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Because the Commissioner’s motion was made, from the outset, as an alternative motion for
summary judgment, there is no question that the parties have already been on notice that the court
may treat the motion as one for summary judgment. The parties are also represented by counsel
who “can be presumed to appreciate the need to file affidavits or other responsive materials and of
the consequences of default.” Howell v. Dep’t of the Army, 975 F. Supp. 1293, 1297 (M.D. Ala.
1997) (internal quotations omitted). “Additional or special protective notice is therefore not
required before the court may proceed to treat the motion as one for summary judgment.” Id.

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a verdict for the nonmoving party,” summary judgment would be inappropriate. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
II. FACTS
On March 5, 2014, an administrative law judge (“ALJ”) issued a decision denying
Johnson’s claims for a period of disability and for disability insurance benefits. Doc. 10-2.
Johnson requested review of the ALJ’s decision by the Appeals Council, and that request
was denied on June 8, 2015. Doc. 10-3. The Appeals Council’s denial letter informed
Johnson that there was “no reason under our rules to review” the ALJ’s decision and that
the ALJ’s decision “is the final decision of the Commissioner of Social Security in your
case.” Doc. 10-3. In a section entitled “Time to File a Civil Action,” the Appeals Council’s
letter further informed Johnson:


You have 60 days to file a civil action (ask for court review) [of the
ALJ’s decision].



The 60 days start the day after you receive this letter. We assume you
received this letter 5 days after the date on it unless you show us that
you did not receive it within the 5-day period.



If you cannot file for court review within 60 days, you may ask the
Appeals Council to extend your time to file. You must have a good
reason for waiting more than 60 days to ask for court review. You
must make the request in writing and give your reason(s) in the
request.

Doc. 10-3.3 It is undisputed that Johnson did not request an extension of time to file a civil
action from the Appeals Council. Doc. 10-1.

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Both the ALJ’s decision and the Appeals Council’s denial letter were mailed to Johnson and his
non-attorney representative. Docs. 10-2 & 10-3. There is no evidence before the court indicating
that these letters were not received by Johnson.

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Combining sixty days with the presumed five days for receipt of the Appeals
Council’s denial letter, the deadline for Johnson to file a civil action in this court was
August 12, 2015. Johnson filed his complaint on August 14, 2015. Doc. 1.
III. DISCUSSION
A lengthy discussion addressing the merits of the Commissioner’s motion is not
necessary, as there is no dispute that Johnson did not timely file his claims in this court.
“Congress provided that disappointed [Social Security] claimants must file suit in district
court within sixty days (unless extended by the Secretary) in order to obtain judicial
review.” Stone v. Heckler, 778 F.2d 645, 649 (11th Cir. 1985). The date of receipt 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). “The 60-day time limit is strictly enforced and
claims filed even one day beyond the deadline have been dismissed as untimely.” Madry
v. Colvin, No. 8:13-cv-312-T-23-DNF, 2013 WL 5408088, at *3 (M.D. Fla. Sept. 25, 2013)
(internal quotations omitted).
The ALJ’s decision in Johnson’s case was made on March 5, 2014, and the Appeals
Council denied review of that decision on June 8, 2015, making the ALJ’s decision final.
Docs. 10-2 & 10-3. There is no evidence that Johnson requested an extension of his
deadline to file a civil action from the Appeals Council. Doc. 10-1. Nor did Johnson
present any arguments that his filing deadline should be equitably tolled.4 As a result,

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“The United States Supreme Court has concluded that the 60-day requirement set out in § 405(g)
is not jurisdictional, but rather is a statute of limitations which is waivable by the parties and subject
to the doctrine of equitable tolling.” Jackson v. Astrue, No. CA 07-0775-WS-C, 2008 WL 906573,
at *2 (S.D. Ala. Apr. 1, 2008) (citing Bowen v. City of New York, 476 U.S. 467, 478−80 (1986)).

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Johnson had sixty-five days from June 8, 2015—or until August 12, 2015—to file the
instant action. Because Johnson did not file his complaint until August 14, 2015, his claims
are untimely and must be dismissed. See Madry, 2013 WL 5408088 at *3−4 (dismissing a
social security appeal filed in district court one day past the deadline because “Plaintiff did
not file his Complaint within the 60 plus 5 day mailing time period, failed to request an
extension of time, and failed to present any arguments as to equitable tolling”); see also
Christides v. Comm’r of Soc. Sec., 478 F. App’x 581 (11th Cir. 2012).
IV. CONCLUSION
Based on the foregoing, it is ORDERED that Defendant Carolyn W. Colvin’s
Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (Doc. 10) is
GRANTED, and Plaintiff Otey Lane Johnson’s complaint is DISMISSED WITH
PREJUDICE.
A separate final judgment will be issued in accordance with this Memorandum
Opinion and Order.
DONE this 12th day of January, 2016.
/s/ Gray M. Borden
UNITED STATES MAGISTRATE JUDGE

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