Parker v. Social Security Administration, Commissioner
MEMORANDUM OPINION. Signed by Judge Sharon Lovelace Blackburn on 11/28/16. (SMH)
2016 Nov-28 PM 04:47
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
TONYA KAY PARKER,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
CASE NO. 5:14-CV-1863-SLB
This case is presently pending before the court on defendant’s Motion to Dismiss
Plaintiff’s Complaint, (doc. 7),1 which she contends should be treated as a Motion for
Summary Judgment, (id. at 1 n.1). Plaintiff, Tonya Kay Parker, filed this action against
defendant, Carolyn W. Colvin, Acting Commissioner of Social Security, seeking review of
the Commissioner’s final decision denying her claim for disability benefits. (See doc. 1 at
2.) The Commissioner has moved to dismiss this action as untimely filed. (Doc. 7-1 at 1,
5-8.) Upon consideration of the record, the submissions of the parties, and the relevant law,
the court is of the opinion that defendant’s Motion to Dismiss, (doc. 7), is due to be granted.
On July 23, 2014, the Appeals Council sent Parker notice of its decision denying her
request for review. (Doc. 7-3 at 18.) In its notice, the Appeal Council told Parker of her
right to ask the district court to review the decision denying her claim for benefits:
Reference to a document number, [“Doc. ___”], refers to the number assigned to each
document as it is filed in the court’s record.
If you disagree with our action, you may ask for court review of the
Administrative Law Judge's decision by filing a civil action.
If you do not ask for court review, the Administrative Law Judge's decision
will be a final decision that can be changed only under special rules.
You may file a civil action (ask for court review) by filing a complaint in the
United States District Court for the judicial district in which you live. The
complaint should name the Commissioner of Social Security as the defendant
and should include the Social Security number(s) shown at the top of this
You have 60 days to file a civil action (ask for court review).
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.
(Id. at 19-20.) Parker filed her Complaint in this court on September 30, 2014. (Doc. 1.)
Parker had 65 days, or until September 26, 2014, to file her Complaint. Her
Complaint, filed on September 30, 2014, was untimely filed. The Commissioner moved to
dismiss Parker’s Complaint on January 15, 2015. (Doc. 7.) On February 3, 2015, Parker
filed her Response to Defendant’s Motion to Dismiss, Parker concedes that her Complaint
was filed 69 days following the Appeals Council’s decision. (Doc. 8 at 1.) Also, she states
she had filed a request for an extension of the deadline for filing her Complaint and asked
the court to “delay[ ] any ruling on the Defendant’s Motion to Dismiss until such time as the
Appeals Council grants or denies the Plaintiff’s Request for Extension of Time to file a civil
action.” (Id. at 2.) In the extension request, Parker’s counsel told the Appeals Council:
On July 23, 2014, the Appeals Council denied further review of the
above claimant’s claim. The claimant was represented by another
representative until the Appeals Council denied review. After the Appeals
Council denied review, the claimant contacted me about representing her in a
federal court appeal of her claim. I initially met with the claimant on
September 15, 2014. She did not have a copy of the Appeals Council’s
decision at our appointment on September 15, 2014.
I received the ALJ decision from the claimant’s previous representative
on September 17, 2014. I evaluated the merits of the claimant’s appeal. I had
scheduled a follow up appointment with the claimant on September 23, 2014.
The claimant was unable to attend because of sickness. The claimant’s sixteen
month old child . . . was sick for several days with a stomach virus. The
claimant missed a 2nd appointment with my office on September 29, 2014.
Finally, the claimant was able to make her appointment with me on September
30, 2014. I considered asking the Appeals Council for a 30 day extension of
time. However given the time limits to file the claimant’s Complaint and my
previous difficulty in getting the Appeals Council to act on other requests for
extensions of time, I filed the Complaint without asking the Appeals Council
for an extension. I filed her federal court complaint the same day. The
complaint was filed 69 days after the Appeals Council denied review.
(Doc. 8-1 at 1.) On February 4, 2015, the day after Parker requested an extension, that
Appeals Council denied her request; it stated:
In this instance, a civil action would have been timely had it been filed on or
before September 26, 2014. You did not request additional time until after
that date. Considering all of the circumstances, the Appeals Council does not
believe that “good cause” to grant additional time has been established in this
case; accordingly, the Appeals Council denies this request for additional time
to file a civil action in this matter.
(Doc. 9-1 at 1.)
The parties do not dispute that the Complaint was filed after the deadline for filing
established by 42 U.S.C. 405(g).2 The reasons for the late-filing are also not disputed.
The decision of the Appeals Council “ not to extend the sixty-day statute of
limitations of 42 U.S.C. § 405(g) for filing in the district court is not subject to judicial
review.” Stone v. Heckler, 778 F.2d 645, 649 (11th Cir. 1985), quoted in Waller v. Comm'r
of Soc. Sec., 168 Fed. Appx. 919, 920-21 (11th Cir. 2006)(“As an initial matter, to the extent
Waller challenges the decision of the AC not to grant an extension, that decision is not
subject to judicial review. In Stone v. Heckler, 778 F.2d 645 (11th Cir. 1985), we held the
AC's decision not to grant an extension was not subject to judicial review and stated ‘a Social
Security claimant should not rely upon the possibility of an administrative extension of time’
and allowing judicial review ‘would allow claimants to frustrate the Congressional intent to
forestall belated litigation of stale eligibility claims.’ Id. at 648 (quotations, alteration, and
“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.” 42 U.S.C. § 405(g).
citation omitted).”).3 Therefore, the court finds, without dispute, that Parker’s Complaint
was untimely filed and is due to be dismissed as a matter of law.4
For the foregoing reasons, the court is of the opinion that there are no material facts
in dispute and the Commissioner is entitled to judgment as a matter of law. An Order
granting the Commissioner’s Motion to Dismiss Plaintiff’s Complaint will be entered
contemporaneously with this Memorandum Opinion.
DONE this 28th day of November, 2016.
SHARON LOVELACE BLACKBURN
SENIOR UNITED STATES DISTRICT JUDGE
Eleventh Circuit Rule 36-2 provides, in pertinent part, “An opinion shall be
unpublished unless a majority of the panel decides to publish it. Unpublished opinions are
not considered binding precedent, but they may be cited as persuasive authority.” 11th Cir.
R. 36-2 (emphasis added).
Parker does not assert that she is entitled to have the statute of limitations equitably
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