Williams v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on April 28, 2015. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
ANDREA LASHUN WILLIAMS
on behalf of
S.E.A., Jr., a minor
vs.

PLAINTIFF

Civil No. 6:14-cv-06151

CAROLYN W. COLVIN
Commissioner, Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Pending now before this Court is Defendant’s Motion to Dismiss. ECF No. 9.1 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
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 September 2, 2014. ECF
No. 10-1, Pgs. 29-34. On October 31, 2014, Plaintiff requested an extension of time to file a civil
action. ECF No. 10-1, Pg. 35. On November 17, 2014, the Appeals Council granted Plaintiff an
extension of 30 days from receipt of the letter to file a civil action. ECF No. 10-1, Pgs. 36-37. The

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

Appeals Council explained it would assume Plaintiff received the letter 5 days after the date on it
unless Plaintiff showed she did not receive it within that 5-day period. Id. Therefore, to be
considered timely, Plaintiff had to file a civil action within 35 days of November 17, 2014, or by
December 22, 2014, unless she showed she did not receive the letter within the presumed 5-day
period. Plaintiff made no such showing. The Complaint in this case was actually filed on December
24, 2014. ECF. No. 1.
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 September
2, 2014. ECF No. 10-1, Pgs. 29-34. On November 17, 2014, the Appeals Council granted Plaintiff
an extension of 30 days from receipt of the letter to file a civil action. ECF No. 10-1, Pgs. 36-37.
Based on this, Plaintiff should have commenced his civil action on or before December 22, 2014.
This date includes the additional five days for receipt by mail. Plaintiff filed her complaint on
December 24, 2014. 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.

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3. Conclusion:
Based on the foregoing, Defendant’s Motion to Dismiss (ECF No. 9) is GRANTED. A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 28th day of April, 2015.

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

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