Milligan v. Social Security Administration
MEMORANDUM AND ORDER granting 6 Defendant's Motion to Dismiss. Accordingly, this action shall be DISMISSED WITH PREJUDICE. Signed by Magistrate Judge Jerome T. Kearney on 09/20/2012. (jak) (Docket text modified on 9/20/2012 to correct the description of the document filed.) (thd).
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
MICHAEL J. ASTRUE, Commissioner,
Social Security Administration
Case No. 3:12-CV-00049 JTK
Memorandum and Order
Before the Court is the Motion to Dismiss (Doc No. 6) filed by Defendant Michael J.
Astrue, Commissioner of the Social Security Administration, on April 26, 2012. Defendant’s
Motion requests that the present action be dismissed because Plaintiff failed to comply with the
relevant statute of limitations. After reviewing the briefing of the parties, the Court finds that
Defendant’s Motion should be GRANTED.
Plaintiff filed an application for disability insurance benefits that was denied at the initial
and reconsideration levels. An Administrative Law Judge (ALJ) subsequently denied his claim
on December 11, 2009. On December 12, 2011, the Appeals Council denied Plaintiff’s request
for review of the ALJ’s denial of his claim. The December 12, 2011, action by the Appeals
Council rendered the ALJ’s decision the “final decision” of the Commissioner. Plaintiff did not
file the instant civil action until sixty-six days later on February 16, 2012.
The relevant statute of limitation provides that claimants may obtain a review of the
Commissioner’s “decision by a civil action commenced within sixty days after the mailing to
[the claimant] of notice of such decision or within such further time as the Commissioner may
allow.” 42 U.S.C. § 405(g). The beginning date for the sixty-day period is the date that the
claimant receives notice of the Appeals Council’s decision. 20 C.F.R. § 404.981. This is
presumed to be five days after the date on the notice of decision, unless there has been a
reasonable showing1 that it was not received within this period. 20 C.F.R. §§ 404.901,
422.210(c). The Eighth Circuit has upheld this limitations period. Hammonds v. Bowen, 870
F.2d 446, 448 (8th Cir. 1989) (“We have found no authority to support an exception to the sixtyday requirement for a claimant whose attorney fails to appeal within that time.”).
Plaintiff responds by speculating that he might not have received the notice within five
days because his counsel rarely receives these notices within five days of the date on the notice.
This is not a sufficient basis for ignoring the five-day presumption and extending the limitations
The Court has carefully reviewed the briefing and finds that Defendant’s Motion to
Dismiss should be GRANTED.
Accordingly, this action shall be DISMISSED WITH
IT IS SO ORDERED this 20th day of September, 2012.
United States Magistrate Judge
No such showing was ever made to the Social Security Administration.
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