Tolen v. Commissioner of Social Security
Filing
8
OPINION granting 7 Motion For Summary Judgment. Entered by Judge Sue E. Myerscough on 12/14/2012. (CT, ilcd)
E-FILED
Friday, 14 December, 2012 02:11:00 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
STEVEN TODD TOLEN,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
No. 12-3151
OPINION
SUE E. MYERSCOUGH, U.S. District Judge:
This cause is before the Court on the Motion to Dismiss or,
Alternatively, Motion for Summary Judgment (d/e 7) filed by Defendant
Michael J. Astrue, arguing that the Complaint is untimely. Because the
statute of limitations is an affirmative defense and Defendant has
presented evidence outside the pleadings, the Court will address only the
summary judgment portion of the Motion. For the reasons that follow,
the Motion for Summary Judgment is GRANTED.
I. BACKGROUND
On June 6, 2012, Plaintiff, Steven Todd Tolen, represented by
counsel, filed a Complaint seeking judicial review of the final decision of
the Commissioner of Social Security denying his application for Social
Security Disability and Supplemental Security Income Disability
benefits. See d/e 1 (seeking review pursuant to 42 U.S.C. § 405(g)
(governing disability insurance benefit claims) and 42 U.S.C. §
1383(c)(3) (governing supplemental security income claims)). The
Complaint alleges that the action was commenced “within the
appropriate time period set forth in the Action of Appeals Council on
Request for Review dated March 28, 2012.” See Compl. ¶ 3 (d/e 1).
On October 25, 2012, Defendant filed the Motion at issue herein.
Defendant asserts that Plaintiff’s Complaint is time-barred because
Plaintiff filed the Complaint outside of the 60-day limitations period
provided in the Social Security Act. Defendant supported the Motion
with the Declaration of Roger Weigel, Chief of Court Case Preparation
and Review Branch 1 of the Office of Appellate Operations, Office of
Disability Adjudication and Review, Social Security Administration, and
the exhibits attached to the Declaration.
Page 2 of 10
In the Declaration, Weigel states that he is responsible for
processing claims under Title XVI of the Social Security Act when a civil
action has been filed in the State of Illinois. Weigel Decl. ¶ 3.
Information available to him disclosed the following. Weigel Decl. ¶ 3.
On January 18, 2011, an administrative law judge (ALJ) issued a
decision denying Plaintiff’s claim for benefits. Weigel Decl. ¶ 3(a); ALJ
Decision (attached as Exhibit 1 of the Declaration) (d/e 7-2, pp. 9-16).
By Notice of Decision dated January 18, 2011, Plaintiff was informed of
the unfavorable decision. Weigel Decl. ¶ 3(a); Notice of Decision
(attached as Exhibit 1 to the Declaration) (d/e 7-2, pp. 6-8).
Thereafter, Plaintiff requested review of the decision. See Weigel
Decl. ¶ 3(a). On March 28, 2012, the Appeals Council issued a Notice of
Appeals Council Action (Notice) denying Plaintiff’s request for review of
the ALJ’s hearing decision. Weigel Decl. ¶ 3(a); Notice (attached as
Exhibit 2 of the Weigel Declaration) (d/e 7-2, pp. 20-22). The Notice was
sent to Plaintiff and his attorney (the same attorney in the case sub
judice). Weigel Decl. ¶ 3(a); Notice (d/e 7-2, p. 22). The Notice
Page 3 of 10
provides:
Time to File Civil Action
•
You have 60 days to file a civil action (ask for
court review).
•
The 60 days start the day after you receive this
letter. We assume you received this letter 5
days after the date on it unless you show us
that you did not receive it within the 5-day
period.
•
If you cannot file for court review within 60
days, you may ask the Appeals Council to
extend your time to file. You must have a
good reason for waiting more than 60 days to
ask for court review. You must make the
request in writing and give your reason(s) in
the request.
Notice (d/e 7-2, p. 21). Weigel states that, as of the date of his
Declaration (July 18, 2012), he was “not aware of any request for an
extension of time to file a civil action[.]” Weigel Decl. ¶ 3(b).
Plaintiff filed the Complaint on June 6, 2012. See Compl. (d/e 1).
In the Motion for Summary Judgment, Defendant asserts that the last
day on which Plaintiff could file an action for judicial review was Friday,
June 1, 2012 (65 days after the date of the Notice).
Page 4 of 10
Plaintiff has not responded to Defendant’s Motion.
II. LEGAL STANDARD
“Summary judgment is appropriate when the pleadings and
submissions in the record indicate the absence of any genuine issues of
material fact, such that the moving party is entitled to judgment as a
matter of law.” Mercatus Group, LLC v. Lake Forest Hosp., 641 F.3d
834, 839 (7th Cir. 2011); see also Fed.R.Civ.P. 56. A genuine issue of
material fact exists when “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the burden of
establishing that there is no genuine issue of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). If the movant meets this burden,
the non-movant must set forth specific facts demonstrating that there is a
genuine issue for trial. Stephens v. Erickson, 569 F.3d 779, 786 (7th Cir.
2009). Facts must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must be drawn in favor of the
non-movant. See Trentadue v. Redmon, 619 F.3d 648, 652 (7th Cir.
Page 5 of 10
2010).
III. ANALYSIS
Defendant argues Plaintiff’s Complaint is time-barred because
Plaintiff filed it outside of the 60-day limitations period provided in the
Social Security Act.
Section 405(g) of the United States Code provides that an
individual may obtain judicial review of a final decision of the
Commissioner of Social Security by filing a civil action within 60 days
“after the mailing to him of notice of such decision or within such further
time as the Commissioner of Social Security may allow.” 42 U.S.C. §
405(g); see also 42 U.S.C. § 1383(c)(3) (providing that the judicial
review procedure set forth in § 405(g) applies to supplemental security
income claims). The 60-day time period is not jurisdictional but instead
operates as a statute of limitations. Bowen v. City of New York, 476
U.S. 467, 478 (1986).
While § 405(g) provides that the civil action must be filed within
60 days “after the mailing” of the notice, this has been interpreted to
Page 6 of 10
mean that the civil action must be filed within 60 days of the individual’s
receipt of the notice. See Jackson v. Commissioner of Social Security,
2011 WL 3563011, at *2 (C.D. Ill. 2011), citing 20 C.F.R. § 422.210(c),
report and recommendation approved by 2011 WL 3563165 (2011); see
also 20 C.F.R. § 404.981 (“You may file an action in a Federal district
court within 60 days after the date you receive notice of the Appeals
Council’s action”). Receipt is presumed to have occurred five days after
the date that appears on the notice, unless there is a reasonable showing
to the contrary. 20 C.F.R. § 404.901; 20 C.F.R. § 422.210(c); see also
Boyer v. Astrue, 2012 WL 6084633, at *2 (N.D. Ind. 2012) (“The date
of receipt is presumed to be five days after the date on the notice”).
In this case, the final decision of the Commissioner was issued on
March 28, 2012 when the Appeals Council denied Plaintiff’s request for
review of the ALJ’s decision. Therefore, the date Plaintiff received the
Notice is presumed to be Monday, April 2, 2012, which is five days after
the date of such Notice, unless Plaintiff makes a reasonable showing that
the notice was received on a different day. Plaintiff, who has not
Page 7 of 10
responded to the Motion for Summary Judgment, has not presented any
evidence that would demonstrate a genuine issue of material fact
regarding the date Plaintiff received the Notice.
With the presumption that Plaintiff received the Notice on April 2,
2012, he had 60 days thereafter–until Friday, June 1, 2012–to file a civil
action seeking judicial review of the decision. Plaintiff did not file this
civil action until June 6, 2012. While the 60-day period can be extended
by the Commissioner under certain circumstance, the undisputed
evidence in the record shows that no such extension was sought or
granted in this case. See 20 C.F.R. § 416.1482 (providing that a party to
the decision or denial of review may request, in writing, an extension of
time to file an action in federal district court); 20 C.F.R. § 416.1411
(providing what constitutes good cause for missing the deadline to
request review); Weigel Decl. ¶ 3(b) (asserting that as of July 18, 2012,
Weigel was unaware of any request for an extension of time).
Plaintiff, by not responding, has also not shown any other basis for
extending the 60-day filing period. For example, the 60-day filing period
Page 8 of 10
can be subject to equitable tolling. See Bowen, 476 U.S. at 480 (finding
that “application of a traditional equitable tolling principle to the 60-day
requirement of § 405(g) is fully consistent with the overall congressional
purpose and is nowhere eschewed by Congress”) (internal quotation
marks and citations omitted). A litigant is entitled to equitable tolling if
he demonstrates that he diligently pursued his rights but that some
extraordinary circumstance prevented timely filing. Holland v. Florida,
130 S. Ct. 2549, 2562 (2010). However, Plaintiff, by not responding to
the Motion, has failed to show the existence of any facts that would
create a genuine issue of material fact regarding whether the 60-day
limitation should be equitably tolled.
Therefore, the undisputed facts demonstrate that this case is barred
by the time limitations specified in 42 U.S.C. § 405(g) because Plaintiff’s
civil action was not commenced within 60 days after the date of the
receipt of notice of the final decision of the Commissioner, nor within
any time as extended by the Appeals Council.
Page 9 of 10
IV. CONCLUSION
For the reasons stated, Defendant’s Motion to Dismiss or,
Alternatively, Motion for Summary Judgment (d/e 7), which is treated
solely as a Motion for Summary Judgment, is GRANTED. The Clerk of
the Court is directed to enter judgment for Defendant and close this case.
ENTER: December 14, 2012
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
Page 10 of 10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?