Burris v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on September 6, 2016. (mfr)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
EL DORADO DIVISION
Civil No. 1:16-cv-01029
CAROLYN W. COLVIN
Commissioner, Social Security Administration
Pending now before this Court is Defendant’s Motion to Dismiss. ECF No. 7.1 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. 6. 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 February 3, 2016. ECF
No. 8-1, Pg. 4. Therefore, Plaintiff should have commenced his civil action on or before April 8,
2016. This date includes the additional five days for receipt by mail. The Complaint in this case was
actually filed on April 25, 2016. 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).
The Appeals Council denied Plaintiff’s request for review on February 3, 2016. ECF No.
8-1, Pg. 4. Based on this, Plaintiff should have commenced his civil action on or before April 8,
2016. This date includes the additional five days for receipt by mail. Plaintiff filed his complaint
on April 25, 2016. ECF No. 1. Defendant asserts this filing is untimely. The Plaintiff has not
responded to this Motion to Dismiss. 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. 7) is GRANTED. A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 6th day of September 2016.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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