Mullinax v. Social Security Administration Commissioner

Filing 9

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on July 2, 2015. (mll)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TEXARKANA DIVISION
JANIS M. MULLINAX
vs.

PLAINTIFF
Civil No. 4:15-cv-04027

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
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. 5. Pursuant to this
authority, the Court issues this Memorandum Opinion and orders the entry of a final judgment in this
matter.
1. Background:
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 December 18, 2014. ECF
No. 8-1, Pg. 4. Therefore, Plaintiff should have commenced her civil action on or before February
23, 2015. This date includes the additional five days for receipt by mail, and one additional day to
reach the next business day. The Complaint in this case was actually filed on March 5, 2015. ECF.
No. 1

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The docket numbers for this case are referenced by the designation “ECF. No.”

2. Discussion:
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 her request for review on December
18, 2014. ECF No. 8-1, Pg. 4, 23-25. Based on this, Plaintiff should have commenced her civil
action on or before February 23, 2015. This date includes the additional five days for receipt by mail
and one additional day to reach the next business day. Plaintiff filed her complaint on March 5,
2015. 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.
3. Conclusion:
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 2nd day of July 2015.

/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE

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