Simmons v. Social Security Administration Commissioner

Filing 12

MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on January 20, 2017. (hnc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION
PERRY LONNIE SIMMONS
vs.

PLAINTIFF
Civil No. 6:16-cv-06111

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
responded and does oppose the granting of this motion. ECF No.11.2 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 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 June 7, 2016. ECF No.
10-1, Pg. 4. Therefore, Plaintiff should have commenced his civil action on or before August 11,
2016. This date includes the additional five days for receipt by mail. The Complaint in this case was
actually filed on October 31, 2016. ECF. No. 1.

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The docket numbers for this case are referenced by the designation “ECF. No.”
Counsel for Plaintiff states Plaintiff passed away December 29, 2016.

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).
The Appeals Council denied Plaintiff’s request for review on June 7, 2016. ECF No. 10-1,
Pg. 4. Based on this, Plaintiff should have commenced his civil action on or before August 11 2016.
This date includes the additional five days for receipt by mail. Plaintiff filed his complaint on
October 31, 2016. ECF No. 1. Defendant asserts this filing is untimely. The Plaintiff does not
oppose 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. 9) is GRANTED. A
judgment incorporating these findings will be entered pursuant to Federal Rules of Civil Procedure
52 and 58.
ENTERED this 20th day of January 2017.

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

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