Johnson v. Social Security Administration

Filing 9

ORDER denying 7 Motion to Dismiss. Signed by Magistrate Judge J. Thomas Ray on 1/2/2018. (jak)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION

VINCENT JOHNSON

V.

PLAINTIFF

NO. 3:17-cv-00266- JTR

NANCY A. BERRYHILL,
Acting Commissioner,
Social Security Administration

DEFENDANT
ORDER

Pending before the Court is a Motion to Dismiss filed by Defendant Social
Security Commissioner (“Commissioner”), Doc. 7, who contends that Plaintiff
Vincent Johnson (“Johnson”) waited too long to file his Complaint. Johnson has
filed a Response opposing the Commissioner’s Motion, Doc. 8.
For the reasons stated below, the Court concludes that good cause exists to
equitably toll the filing deadline and to permit judicial review on the merits of the
Commissioner’s decision denying benefits to Johnson. Thus, the Commissioner’s
Motion is denied.
I.

BACKGROUND

On October 3, 2017, Johnson initiated this action by filing a Complaint
seeking review of the Commissioner’s decision denying benefits. As detailed in
Johnson’s Complaint, his current appeal dates back to concurrent claims for social
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security disability and social security income benefits originally filed on August 26,
2009:
The claims were denied initially and upon reconsideration. Plaintiff
requested a hearing before an Administrative Law Judge (ALJ) which
was held on April 5, 2011. On May 5, 2011, the ALJ issued an
unfavorable decision denying plaintiff’s claim for benefits. The
plaintiff timely requested Appeals Council review of the ALJ’s
decision which was remanded on October 20, 2011. Plaintiff attended
a supplemental hearing before an ALJ on January 31, 2012. On June
26, 2012, the ALJ issued a denial. Plaintiff timely requested Appeals
Council review and on March 11, 2013, the claim was remanded. A
third hearing was held before an ALJ on July 8, 2013 in which the ALJ
issued a denial on July 22, 2013. A timely appeal was filed with the
Appeals Council and was denied on February 6, 2014. Plaintiff sought
judicial review and by Order dated May 13, 2015, the claim was
remanded for further consideration. A fourth hearing was held before
an ALJ on December 3, 2015 and was denied on December 24, 2015.
Plaintiff timely requested Appeals Council Review which was denied
on February 6, 2017.
(Complaint, Doc. 2, at ¶ 6).
Johnson further alleges in his Complaint that neither he nor his attorney were
aware of the Appeals Council’s final decision, dated February 6, 2017, until his
attorney contacted the Social Security Office, on July 31, 2017, to check on the status
of Johnson’s claim. (Doc. 2 at pp. 2-3).
The parties dispute whether these facts justify equitable tolling of the
limitations period for seeking judicial review of the Commissioner’s final decision
denying benefits.

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II.

DISCUSSION

By statute, a claimant seeking judicial review of the Social Security
Administration’s (“SSA’s”) final denial of benefits must commence a civil action
“within sixty days after the mailing to him of notice of such decision or within such
further time as the Commissioner may allow.” 42 U.S.C. § 405(g). The term
“mailing” has been interpreted to be the date of receipt by the claimant of the
Commissioner’s final decision. 20 C.F.R. §§ 404.981, 416,1481; see also 20 C.F.R.
§§ 404.1715(b), 416.1515(b) (a notice sent to the claimant’s representative has the
same force and effect as a notice sent to the claimant). The “date of receipt” is
presumed to be five days after the date on the notice, absent a reasonable showing
to the contrary. 20 C.F.R. §§ 404.901 and 416.1401. Thus, generally a claimant
must initiate judicial review within 65 days of the Commissioner’s final decision.
The time to initiate judicial review is subject to equitable tolling “where the
equities in favor of tolling the limitations period are so great that deference to the
agency’s judgment are inappropriate.” Bowen v. City of New York, 476 U.S. 467,
480 (1986). Thus, § 405(g)’s filing deadline is subject to “traditional equitable
tolling” principles. Id. (omitting internal quotations and citation).

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Johnson contends that neither he nor his attorney1 learned of the Appeal
Council’s February 6, 2017 denial until after the 60-day period to file a civil action
appealing the decision had expired. On July 31, 2017, Johnson’s attorney contacted
the Appeals Council by phone to check on the status of the claim and learned, for
the first time, of the February 6th denial. (Affidavits, Doc. 2 at pp. 3-4). That same
day, Johnson’s attorney faxed a letter to the Appeals Council confirming the
telephone conversation and requesting a copy of the written decision. She also
requested that the letter be considered “a formal request for extension of time to
commence a civil action on Mr. Johnson’s behalf.” (Doc. 8-1). The Appeals
Council never responded to Johnson’s request for an extension of time and a copy
of the decision. On August 4, 2017, Johnson’s attorney contacted the local SSA
office in Blytheville and obtained a copy of the Appeals Council’s written denial of
benefits.
It is undisputed that Johnson initiated this action within sixty days of being
provided with a copy of the Appeals Council’s decision, and sixty-five days of being
advised the opinion existed. See, e.g., Jenkins v. Astrue, 142 Soc. Sec. Rep. Serv.
237, 2009 WL 1364349 (D. Del. 2009) (claimant was required to submit his civil
action within 65 days after notice of the Appeals Council denial of his claim).

1

Stephanie Bartels Wallace is Johnson’s current counsel of record. Other papers in the
file indicate that Johnson was previously represented by Anthony Bartels. Mr. Bartels passed away
on June 7, 2016.

4

The Commissioner offers a declaration from Cristina Prelle stating that a
review of Johnson’s file shows that on February 6, 2017, the Appeals Council sent
notice of the final decision to Johnson and his representative, at their last known
addresses.2 A presumption of regularity applies to official acts of government
agencies, including the mailing of official documents. Wilburn v. Astrue, 626 F.3d
999, 1003-04 (8th Cir. 2010). However, assuming the SSA mailed the notices, that
does mean they were received.
Here, both Johnson and his attorney, a respected officer of the Court, state that
neither of them received the document allegedly mailed by the SSA on February 6,
2017. On this record, the evidence preponderates that Johnson and his attorney did
not receive a copy of the February 6, 2017 decision until August 4, 2017.

See

American Boat Co. v. Unknown Sunken Barge, 418 F.3d 910, 914 (8th Cir. 2005)
(“In cases involving lack of notice, there is often little a party can do except swear
he or she did not receive the communication.” ).
Additionally, it is undisputed that Johnson discovered the existence of the
final decision through the actions of his attorney, who contacted the SSA on July 31,
2017, to check on the status of the claim. Foutty v. Commissioner of Soc. Sec., No.

2

The addresses appear to be correct. There is no evidence before the Court that Johnson
or his attorney caused or contributed to the lack of receipt of the Appeals Council’s decision.
Compare Bess v. Barnhart, 337 F.3d 988, 990 (8th Cir. 2003) (refusing to apply equitable tolling
where the claimant’s failure to receive notice of the SSA’s decision was caused by his failure to
update his mailing address).

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5:10-cv-551, at *3 (N.D. Ohio July 12, 2010) (holding that evidence that claimant’s
attorney contacted agency to determine status of Appeals Council’s decision
rebutted the presumption of receipt and supported equitable tolling).

Upon being

advised, by phone, that a final decision had been issued months earlier, Johnson’s
attorney took prompt action.
That very same day, Johnson’s attorney wrote to the Appeals Council.
Johnson submitted a copy of the July 31, 2017 letter, which states:
This will confirm your phone call to my office today, in response
to our recent inquiry about the status of Vincent Johnson’s claim. We
had submitted written exceptions to the Appeals Council in January,
2016.
Today, you advised that the Appeals Council issued a denial of
benefits on Mr. Johnson’s claim on February 6, 2017. Please be advised
that we never received that decision.
Please forward a copy of the Appeals Council’s decision . . .
Also, please consider this letter as a formal request for extension
of time to commence a civil action on Mr. Johnson’s behalf, since we
never received the denial and were unaware that the Council had issued
a decision until you advised us of that just today.
(Doc. 8-1) (emphasis in original).
The Appeals Council apparently never acted upon Johnson’s request for an
extension of time. In fact, it appears this letter never found its way into Johnson’s
file since Ms. Prelle affirmatively states that Johnson failed to request an extension
of time to file his civil action. (Doc. 7-1 at p. 3). This is clearly not the case.
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Congress specifically authorized the SSA to toll the 60-day limit for a
claimant to seek judicial review. The regulations state that upon a showing of “good
cause for missing the deadline, the time period will be extended.” 20 C.F.R. §
404.982. The good cause standard specifically includes as one of its listed examples
“where

good

cause

may

exist”

the

fact

that

a

claimant

“did not receive notice of the determination or decision.” 20 C.F.R. § 404.911. The
tolling regulations are “based on considerations of fairness to claimants.” Bowen v.
City of New York, 476 U.S. at 480, n. 12.
Since the Appeals Council failed to act on Johnson’s request for an extension,
the Court has no way of knowing whether it would have granted the request had it
been aware of it. However, the circumstances here fall squarely within the “good
cause” contemplated by the regulations and would have justified a “good cause”
extension. This further weighs in favor of a finding of equitable tolling.
Finally, the Court is mindful of the diligence with which Johnson, through
counsel, has pursued his claims since they were originally filed in August of 2009.
Since that time, Johnson has timely and consistently pursued his claims through
various levels of the SSA’s claims and appeals process, including one earlier request
for judicial review that resulted in a remand of the Commissioner’s denial and which
Johnson continues to challenge.

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III.

CONCLUSION

Based on the totality of the circumstances, the Court concludes that Johnson
has satisfied his burden to show that he is entitled to equitable tolling of the 60-day
limitations period. Because he filed this action within 60-days of receipt of a copy
of the February 6, 2017 final decision, his Complaint will be considered timely filed.
IT IS THEREFORE ORDERED THAT the Defendant Commissioner’s
Motion to Dismiss, Doc. # 7, be, and it is hereby, DENIED.
IT IS SO ORDERED this 2nd day of January, 2018.

__________________________________
UNITED STATES MAGISTRATE JUDGE

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