Acuff v. Social Security Administration Commissioner

Filing 8

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on November 25, 2008. (jn)

IN THE UNITED STATES DISTRICT COURT WE S T E R N DISTRICT OF ARKANSAS FA Y E TT E V ILLE DIVISION A D A M LEE ACUFF v. C IV IL NO. 08-5201 PLA IN T IFF

M IC H A EL J. ASTRUE, Commissioner S o cial Security Administration

D E FE N D A N T

M E M O R A N D U M OPINION P lain tiff Adam Acuff brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review o f a decision of the Commissioner of Social Security (Commissioner). Defendant has filed a motion to dismiss plaintiff's claim on the ground that it is barred by the time limitation specified in 42 U.S.C. § 405(g). (Doc. # 6). Plaintiff filed an application for a period disability, disability insurance benefits (DIB), and su p p lem en tal security income (SSI) on February 17, 2006. (Doc. #1). After benefits were denied in itially and on reconsideration, plaintiff was granted a hearing before an Administrative Law Judge (A LJ) on October 24, 2007, at which plaintiff appeared with counsel. The ALJ issued a written d ecisio n denying benefits on December 12, 2007. Id. Plaintiff subsequently appealed the ALJ's u n fav o rab le decision to the Appeals Council who denied his request for further review on June 20, 2 0 0 8 , making the ALJ's decision the final decision of the Commissioner. (Doc. # 6). On September 3 , 2008, plaintiff commenced this action in Federal district court nunc pro tunc requesting review of th e Commissioner's unfavorable decision. (Doc. # 1). T h e defendant asserts that plaintiff's complaint fails to state a claim upon which relief can be gran ted since it was not filed within the time limitation specified in 42 U.S.C. § 405(g), which requires th at a civil action be commenced within 60 days after the date of mailing to the plaintiff of notice of

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the final decision of the Commissioner of Social Security, or within any time as extended by the A p p eals Council of the Social Security Administration. Ju d icial review of the Commissioner's determination is limited in scope by 42 U.S.C. § 405(g). The Supreme Court has specifically held that § 405(h) prevents review of the Secretary's decisions ex c e p t as provided in § 405(g) of the Act. Sheehan v. Secretary of Health, Ed. & Welfare, 593 F.2d 3 2 3 , 325 (8th Cir. 1979) (citing Weinberger v. Salfi, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1 9 7 5 )). Section 405(g) provides in pertinent part: Any individual, after a final decision of the Commissioner made after a hearing to w h ich he was a party, irrespective of the amount in controversy, may obtain a review o f such decision by a civil action commenced within sixty days after the mailing to him o f notice of such decision or within such further time as the Commissioner may allow. A cco rd in gly, the final decision of the Commissioner is binding unless the claimant files an actio n in a Federal district court within 60 days after receipt of the notice of the Appeals Council's d ecisio n . See also 20 C.F.R. §§ 404.981, 422.210. Receipt of notice of the Appeals Council's decision b y either the claimant or claimant's attorney, whichever occurs first, triggers the 60-day limitations p erio d . Bess v. Barnhart, 337 F.3d 988, 990 (8th Cir. 2003). The date of receipt is presumed to be five d ays after the date of such notice, unless there is a reasonable showing to the contrary made to the A p p eals Council. 20 C.F.R. §§ 404.901, 422.210(c). The Supreme Court in Bowen v. City of New York, 476 U.S. 467, 481, 106 S.Ct. 2022 (1986), ru led that the 60 day time period specified in section 205(g) of the Social Security Act, 42 U.S.C. § 4 0 5 (g), is a period of limitation, which in a rare case can be tolled by the Commissioner or the courts. The Eighth Circuit has upheld the 60 days time limitation. Hammonds v. Bowen, 870 F.2d 446, 448 (8 th Cir. 1989); Turner v. Bowen, 862 F.2d 708, 710 (8th Cir. 1988)(per curiam).

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Here, the Appeals Council's decision denying plaintiff's request for review is dated June 20, 2 0 0 8 . Under the regulations, receipt of the notice would be presumed five days thereafter, on June 25, 2 0 0 8 . Plaintiff has filed an affidavit stating that he did not receive the Appeals Council's determination u n til July 7, 2008, due to a change of address and mail forwarding order. However, a copy of the letter w as also sent to plaintiff's then counsel, Jeff H. Watson of the Watson Law Firm in Springdale, A rkan sas. Aside from plaintiff's self serving affidavit indicating his alleged date of receipt with no ev id en ce offered in support, there is no evidence in the record to indicate that plaintiff's counsel did n o t receive the Appeals Council's decision within 5 days of the date of the notice. Thus, plaintiff has n o t rebutted this presumption. See Bess, 337 F.3d at 990. To be considered timely, plaintiff must have commenced his civil action on or before August 2 4 , 2008. Plaintiff's complaint in this case was filed nunc pro tunc on September 3, 2008.

Additionally, plaintiff has presented no extraordinary circumstances to justify extending the 60 day p e r io d . We find that plaintiff's complaint was not filed within 60 days after the presumed receipt of the fin al decision of Commissioner, or within any time as extended by the Appeals Council. We further fin d no extraordinary circumstances present in this case to justify extending the 60-day period. Plaintiff's counsel should have requested an extension of time from the Appeals Council. Accordingly, w e find that plaintiff's compliant fails to state a claim upon which relief can be granted and this action sh o u ld be dismissed. Based on the above, defendant's motion is granted and plaintiff's case is hereby dismissed with p re ju d i c e .

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DATED this 25th day of November 2008.

/s/ J.

Marschewski

H O N O R A B LE JAMES R. MARSCHEWSKI U N IT E D STATES MAGISTRATE JUDGE

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