Johnson v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 7/11/17. (SAC )

FILED
2017 Jul-11 PM 04:21
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
FRANK JOHNSON,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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2:16-cv-1754-KOB

MEMORANDUM OPINION
This matter comes before the court on the "Defendant's Motion to Dismiss or, in the
Alternative, Motion for Summary Judgment." (Doc. 8). The Commissioner argues that the court
should dismiss this case pursuant to Federal Rule of Civil Procedure 12(b)(6) or, alternatively,
grant summary judgment in the Commissioner's favor pursuant to Federal Rule of Civil
Procedure 56, because Mr. Johnson's Complaint was untimely. Because the Commissioner
attached affidavits outside of the pleadings to its motion, the court construed this motion as one
for summary judgment filed pursuant to Rule 56; gave Mr. Johnson the required notice pursuant
to Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985); and gave Mr. Johnson until March
28, 2017 to respond to the motion for summary judgment. (Doc. 10). Mr. Johnson filed no
response to the motion.
For the following reasons, the court finds that the Commissioner's motion for summary
judgment is due to be granted.

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Summary Judgment Legal Standard
After both parties have had an opportunity to respond to the motion for summary
judgment, the court must grant the motion only if no genuine issues of material fact exist and if
the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56. If the adverse
party "fails to properly address another party's assertion of fact as required by Rule 56(c), the
court may . . . grant summary judgment if the motion and supporting materials—including the
facts considered undisputed—show that the movant is entitled to it . . . . " Fed. R. Civ. P.
56(e)(3); see also United States v. 5800 SW 74th Ave., 363 F.3d 1099, 1101-02 (11th Cir. 2004).
Therefore, even if the adverse party files no response, the court must consider the merits of the
motion to determine whether the movant is entitled to summary judgment.
The court must “view the evidence presented through the prism of the substantive
evidentiary burden” to determine whether the non-moving party presented sufficient evidence on
which a jury could reasonably find for the nonmoving party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). The court must not weigh the evidence and make credibility
determinations because these decisions belong to a jury. Id. at 254. Further, all evidence and
inferences drawn from the underlying facts must be viewed in the light most favorable to the
non-moving party. See Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir.
1999).
Discussion
The Commissioner argues that Mr. Johnson had sixty days after he received the Appeals
Council's denial of his request for review on December 9, 2015, or until on or before February

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12, 2016,1 to file his action in this court requesting review of the Administrative Law Judge's
decision finding that he is not disabled. However, Mr. Johnson did not file his action in this
court until October 26, 2016, almost eight months after the February 12, 2016 deadline. The
Commissioner also argues that no circumstances exist for the court to justify equitable tolling of
the sixty-day requirement under 42 U.S.C. § 405(g). The court agrees.
Pursuant to 42 U.S.C. § 405(g), an individual may obtain review of a final decision of the
Commissioner of Social Security by filing a civil action 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." Moreover, 42 U.S.C. § 405(h) provides that § 405(g), to the exclusion of
the federal jurisdiction statute under 28 U.S.C. § 1331 or § 1346, is the only avenue by which the
claimant can seek judicial review of the Commissioner's final decision.
However, the sixty-day requirement under 42 U.S.C. § 405(g) "is not jurisdictional, but
rather constitutes a period of limitations." Bowen v. City of New York, 476 U.S. 467, 478 (1986).
Because the sixty-day requirement is a "condition on the waiver of sovereign immunity," courts
must construe that requirement strictly. Id. at 479. The court can equitably toll the sixty-day
requirement in rare cases where the claimant shows "extraordinary circumstances" to justify
equitable tolling. Id. at 479-80.
In the present case, Mr. Johnson did not respond to the Defendant's motion and provided
no explanation for his untimely filing. As such, he has failed to show "extraordinary
circumstances" to justify the court applying the doctrine of equitable tolling.
1

The Appeals Council's notice states that Mr. Johnson is presumed to have received
notice five days after the date on the notice, unless Mr. Johnson can show that he did not receive
the notice within that five-day period. (Doc. 8-4).
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The court finds that no genuine issues of material fact exist in this case and that the
Defendant is entitled to summary judgment as a matter of law because Mr. Johnson's Complaint
in this action was untimely.
The court will enter a separate Order in conformity with this Memorandum Opinion.
DONE and ORDERED this 11th day of July, 2017.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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