Clark v. Commissioner of Social Security

Filing 17

ORDER: The Report and Recommendation 15 is adopted, confirmed, and approved in all respects. Defendant's Motion to Dismiss 14 is GRANTED. The Clerk is directed to enter judgment pursuant to Rule 58 in favor of the Defendant. The Clerk is directed to close this case. Signed by Judge James S. Moody, Jr on 11/9/2012. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

APRIL E. CLARK,
Plaintiff,
v.

Case No: 8:12-CV-1409-T-30MAP

MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
_____________________________/

ORDER
THIS CAUSE comes before the Court upon consideration of the Report and
Recommendation submitted by Magistrate Judge Mark A. Pizzo (Dkt. 15) and Plaintiff’s
Response to Report and Recommendation (Dkt. 16). After careful consideration of the
Report and Recommendation of the Magistrate Judge and the Plaintiff’s objection in
conjunction with an independent examination of the file, the Court is of the opinion that the
Magistrate Judge's Report and Recommendation should be adopted, confirmed, and approved
in all respects.
Plaintiff Clark brought this action pursuant to section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g) as applied to Title XVI of the Act by 42 U.S.C. § 1383(c)(3), to
obtain judicial review of the Commissioner’s final decision denying her application for
supplemental security income benefits. On April 19, 2012, the Appeals Council denied
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Clark’s request for review of the Administrative Law Judge’s unfavorable decision on her
claim for benefits. The denial of the Appeals Council made the Administrative Law Judge’s
decision the final decision of the Commissioner. On June 26, 2012, Clark filed a civil action
in federal court seeking review of the Commissioner’s decision. Defendant Commissioner
moved to dismiss based on Fed. R. Civ. P. 12(b)(6) for Clark’s failure to state a claim upon
which relief can be granted because of her untimely filing of the complaint. The Magistrate
Judge recommended the motion to dismiss be granted and Clark objected to that
recommendation.
Federal Rule of Civil Procedure 12(b)(6) requires an action to be dismissed if a
dispositive legal issue precludes relief. Neitzke v. Williams, 490 U.S. 319, 326 (1989). A
court must assume all factual allegations in the complaint are true; however, a court must
dismiss a claim if, as a matter of law, “it is clear that no relief could be granted under any set
of facts that could be proved consistent with the allegations.” Id. at 326-27 (quoting Hishon
v. King & Spalding, 467 U.S. 69, 73 (1984)). Ordinarily, extrinsic documents outside the
pleadings are not considered when deciding a motion to dismiss under Rule 12(b)(6).
However, a court may consider extrinsic documents when they are central to the plaintiff’s
claim and their authenticity is not disputed. Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir.
2005).
Congress has stated that judicial review in cases arising under the Social Security Act
is permitted only in accordance with 42 U.S.C. § 405(g), which provides:

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Any individual, after any final decision of the Commissioner of Social
Security made after a hearing to which he was a party, irrespective of the
amount in controversy, may obtain a review of such decision by a civil action
commenced within sixty days after the mailing to him of notice of such
decision or within such further time as the Commissioner of Social Security
may allow.
See, e.g., 20 C.F.R. § 416.1481 (explaining that an action may be filed “in Federal district
court within 60 days after the date you receive notice of the Appeals Council’s action”);
Velez v. Apfel, 229 F.3d 1136, 1136 (2d Cir. 2000) (“A final decision of the Social Security
Administration must be appealed to federal district court within 60 days of the claimant’s
receipt of notice of the decision.” (citing 42 U.S.C. § 405(g)). Pursuant to 20 C.F.R.
422.210(c), “the date of receipt of notice of denial of request for review of the presiding
officer’s decision or notice of the decision by the Appeals Council shall be presumed to be
5 days after the date of such notice, unless there is a reasonable showing to the contrary.”
As such, a party has sixty-five days from the date of the notice of decision in which to file
a civil action in district court.
The Supreme Court has stated the sixty-day requirement in 42 U.S.C. § 405(g) “is not
jurisdictional, but rather is a statute of limitations.” Bowen v. City of New York, 476 U.S.
467, 481 (1986). Because 42 U.S.C. § 405(h) provides the exclusive avenue for judicial
review of the Commissioner’s decisions, the doctrine of sovereign immunity insists that all
requirements of the statute, including the sixty-day statute of limitations, must be satisfied.
United States v. Dalm, 494 U.S. 596, 608 (1990).

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In the instant case, Clark filed her complaint on the sixty-sixth day. According to the
declaration of Patrick Herbst, the notice of final decision is dated April 19, 2012. Including
the presumed five-day receipt of the notice, the sixty-five day statute of limitations for
commencing a civil action lapsed on June 25, 2012. Clark filed her action on June 26, 2012,
and she does not allege in her complaint or objection that the Commissioner provided an
extension of that date. Rather, she admits the late filing and requests the Court to excuse her
tardiness due to a mailing mistake with the U.S. Postal Service.
Equitable tolling is available to a claimant who untimely filed in the district court.
Jackson v. Astrue, 506 F.3d 1349, 1353 (11th Cir. 2007). However, “equitable tolling
principles require a claimant to justify her untimely filing by a showing of extraordinary
circumstances. . . . ‘where the defendant misleads the plaintiff, allowing the statutory period
to lapse; or when the plaintiff has no reasonable way of discovering the wrong perpetrated
against her.’” Id. (quoting Waller v. Comm’r, 168 Fed. Appx. 919, 922 (11th Cir. 2006)).
Clearly, a late mailing of the complaint is not an extraordinary circumstance that would
justify tolling the statute of limitations.
Therefore, Clark’s complaint should be dismissed for failure to state a cause of action
upon which relief can be granted.
ACCORDINGLY, it is therefore, ORDERED AND ADJUDGED:
1.

The Report and Recommendation (Dkt. 15) of the Magistrate Judge is adopted,
confirmed, and approved in all respects and is made a part of this order for all
purposes, including appellate review.
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2.

Defendant's Motion to Dismiss (Dkt. 14) is GRANTED.

3.

The Clerk is directed to enter judgment pursuant to Rule 58 in favor of the
Defendant.

4.

The Clerk is directed to close this case.

DONE and ORDERED in Tampa, Florida on November 9, 2012.

Copies Furnished To:
Counsel/Parties of Record

S:\Odd\2012\12-cv-1409.adopt 15.wpd

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