Tatum v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on November 25, 2014. (cnn)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
TIMOTHY O. TATUM
Civil No. 1:14-cv-01041
CAROLYN W. COLVIN
Commissioner, Social Security Administration
Pending now before this Court is Defendant’s Motion to Dismiss. ECF No. 8.1 Plaintiff has
not responded to this motion. The parties have consented to the jurisdiction of a magistrate judge
to conduct any and all proceedings in this case, including conducting the trial, ordering the entry of
a final judgment, and conducting all post-judgment proceedings. ECF No. 7. Pursuant to this
authority, the Court issues this Memorandum Opinion and orders the entry of a final judgment in this
Defendant filed a Motion to Dismiss alleging Plaintiff’s complaint was untimely filed.
Defendant states the complaint was not filed within the statutory time limitation of sixty days
following the Commissioner’s notice to Plaintiff that his request for review was denied. According
to Defendant, the Appeals Council denied Plaintiff’s request for review on May 16, 2014. ECF No.
9. Defendant states Plaintiff, therefore, should have commenced his civil action on or before July
21, 2014. According to Defendant, this date includes the additional five days for receipt by mail,
and an additional day to reach the next business day. The Complaint in this case was actually filed
on August 5, 2014. ECF. No. 1.
The docket numbers for this case are referenced by the designation “ECF. No.”
The only civil action an individual may bring on any claim arising under Title II or Title XVI
of the Social Security Act is an action to review the final decision the Commissioner has made after
hearing the case. An individual must commence that action within sixty days after receiving notice
of the Commissioner’s final decision or within such further time as allowed by the Commissioner.
The Commissioner may extend the time for instituting a civil action upon a claimant’s request and
showing of good cause. See 42 U.S.C. 405(g); 20 C.F.R. § 422.210(c).
Plaintiff received notice the Appeals Council denied his request for review on May 16,
2014. ECF No. 9-1, Pg 3. Based on this, Plaintiff should have commenced his civil action on or
before July 21, 2014. This date includes the additional five days for receipt by mail and an
additional day to reach the next business day. Plaintiff filed his complaint on August 5, 2014. ECF
No. 1. Plaintiff has made no showing that a request for extending the time to file was sought by
Plaintiff in this matter. Based on this, the Court finds Plaintiff’s complaint was not filed timely and
should be dismissed
Based on the foregoing, Defendant’s Motion to Dismiss (ECF No. 8) is GRANTED . A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 25th day of November, 2014.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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