Payne v. Astrue

Filing 15

ORDER. Defendant's 10 Motion to Dismiss is DENIED, by Judge John L. Kane on 6/4/12.(lygsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge John L. Kane
Civil Action No. 12-cv-00437-AP
ROSALIND D. PAYNE,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant.

ORDER
Kane, J.
This matter is currently before me on Defendant’s Motion to Dismiss (doc.10). Because
Plaintiff has demonstrated extraordinary circumstances justifying the equitable tolling of the
limitations period, Defendant’s motion is DENIED.
Background
On August 7, 2007, Ms. Payne filed an application for supplemental security income.
After her claim was initially denied on January 8, 2008, she filed a request for a hearing. An
initial hearing was held on May 18, 2010, and a supplemental hearing was held on July 6, 2010.
Shortly thereafter, an administrative law judge denied her application a second time, finding that
she was not disabled within the meaning of the Social Security Act.
Ms. Payne appealed the ALJ’s denial of her application to the Social Security Appeals
Council. On December 12, 2011, the appeals council denied her request for review. On
February 18, 2012, Ms. Payne filed the instant action, appealing the Social Security
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Administration’s denial of her disability claim.
Discussion
Pursuant to the Social Security Administration’s regulations, Ms. Payne had sixty days
from the receipt of the appeals council’s notice denying her request to file a civil action
challenging the denial of her claim. See 42 U.S.C. § 405(g). Absent evidence to the contrary,
she was presumed to have received that notice five days after the date of the appeals council’s
decision. See 20 C.F.R. § 416.1401. Thus, Ms. Payne was required to file her civil action on or
before February 15, 2012. Unfortunately, however, she filed her civil action on February 18,
2012 – three days beyond the filing deadline.
Ms. Payne does not deny that she failed to comply with this deadline, or that this
regulation is unlawful. Instead, she requests that I waive the statutory deadline because of the
inadvertent mistake of her attorney.
The terms of the Social Security Act are clear, see Califano v. Sanders, 430 U.S. 99, 108
(1977), and waivers of sovereign immunity must be strictly construed. Bowen v. City of New
York, 476 U.S. 467, 479 (1986). In the context of Social Security appeals, Congress has
conditioned its waiver of sovereign immunity on the sixty-day statute of limitations, but this
requirement is not jurisdictional. See id. at 480. Accordingly, the limitations period may be
equitably tolled if Ms. Payne has diligently pursued her claims and demonstrates that her failure
to timely file was caused by extraordinary circumstances beyond her control. See Fleming v.
Evans, 481 F.3d 1249, 1254 (10th Cir.2007).
I am sympathetic to Ms. Payne’s arguments. Her attorney suffers from an ailment that
limits her ability to monitor deadlines and other case-related matters. Ordinarily, she employs a

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legal assistant to alleviate these difficulties. At the time of the relevant deadline, however, she
was working without a legal assistant and miscalculated the date on which Ms. Payne’s filing
was due. In light of these extraordinary circumstances, and the de minimus nature of the delay, I
find it appropriate to equitably toll the deadline in this case.
Conclusion
Although Ms. Payne’s complaint was filed beyond the statute of limitations, she has
demonstrated extraordinary circumstances justifying the equitable tolling of the limitations
period. Accordingly, Defendant’s Motion to Dismiss is DENIED. Defendants shall file an
answer in this matter no later than June 22, 2012.

Dated: June 4, 2012

BY THE COURT:
/s/ John L. Kane
Senior U.S. District Court Judge

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