Nielson v. Astrue

Filing 37

WRITTEN Opinion entered by the Honorable Joan H. Lefkow on 6/6/2011. Defendant's motion to dismiss # 16 , which was converted to a motion for summary judgment by order on January 24, 2011, is granted. Nielsen's motion for summary judgment # 21 is denied. This case is dismissed with prejudice. Civil case terminated. [For further details see written opinion.] Mailed notice (lw, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Joan H. Lefkow

CASE NUMBER

10 C 4647

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

6/6/2011

Nielson vs. Astrue

DOCKET ENTRY TEXT

Defendant’s motion to dismiss [#16], which was converted to a motion for summary judgment by order on
January 24, 2011, is granted. Nielsen’s motion for summary judgment [#21] is denied. This case is
dismissed with prejudice. Civil case terminated.

O[ For further details see text below.]

Docketing to mail notices.
*Mail AO 450 form.

STATEMENT
Raymond J. Nielsen, Sr. filed a complaint pursuant to 42 U.S.C. § 405(g) seeking judicial review of
the decision of the Commissioner of Social Security denying his application for disability insurance benefits
under the Social Security Act. The Commissioner claims that Nielsen’s complaint is time-barred.
On May 9, 2009, an administrative law judge (the “ALJ”) denied Nielsen’s claim in part, finding him
to be entitled to disability payments beginning June 12, 2007. Nielsen sought review of the decision. The
Appeals Council denied his request on May 18, 2010. The notice informed Nielsen that he could appeal the
ALJ’s decision by filing a civil action in federal court within sixty days of receiving the notice. See 42
U.S.C. § 405(g) (“Any individual . . . may obtain a review of [a final] 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.”). The notice also provided that it is presumed that Nielsen
received the notice five days after the date appearing on the notice, unless a reasonable showing is made to
the contrary. See 20 C.F.R. § 422.210©. Based on the date of May 18, 2010, Nielsen is presumed to have
received the notice on May 24, 2010 (as the fifth day, May 23, 2010, was a Sunday). Nielsen’s complaint
would then be timely if it had been filed by Friday, July 23, 2010. It was instead filed on July 26, 2010, a
Monday.
The sixty-day filing requirement is not jurisdictional but instead operates as a statute of limitations.
Bowen v. City of New York, 476 U.S. 467, 478, 106 S. Ct. 2022, 90 L. Ed. 2d 462 (1986). In support of its
motion, the Commissioner attached a declaration of Patrick J. Herbst, the Chief of Court Case Preparation
and Review Branch 1 of the Office of Appellate Operations, Office of Disability Adjudication and Review
for the Social Security Administration, in which he states that to the best of his knowledge, the Appeals
Council decision was mailed on May 18, 2010 to Nielsen’s home address. Nielsen insists that he received
the notice from the Appeals Council on May 28, 2010, so that his complaint is timely if the sixty-day period
is calculated from this date. Nielsen argues that the fact that the envelope that contained the notice does not
have a postmark date supports his claim that he received it outside of the five-day window.1 He has also
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STATEMENT
submitted various exhibits about the United States Postal Service’s generally slow delivery times.
Nielsen’s statement that he received notice only on May 28, 2010, without more, is generally
insufficient to rebut the five-day presumption of receipt. See McCall v. Bowen, 832 F.2d 862, 864 (5th Cir.
1987) (“Although the court presumes that these statements, like all statements made or offered by an officer
of the court, are made in good faith, they cannot provide a substitute for a more concrete showing that the
plaintiff or her attorney actually did not receive the Secretary’s notice within five days of the date of mailing.
Otherwise, this court would be creating an exception to the Act by which a tardy claimant could avoid the
jurisdictional requirements by merely asserting a late delivery of the notice of the Secretary’s decision.”
(quoting Rouse v. Harris, 482 F. Supp. 766, 769 (D.N.J. 1980)); Burgess v. Astrue, No.
10-0223-CV-S-REL-SSA, 2010 WL 4920604, at *2 (W.D. Mo. Nov. 29, 2010); Pettway ex rel. Pettway v.
Barnhart, 233 F. Supp. 2d 1354, 1356–57 & nn. 3–5 (collecting cases). But see Vine v. Bowen, 1988 WL
35595, at *1 (N.D. Ill. 1988) (“Recognizing that the Social Security Administration may fail to mail the
notice or that the postal service may fail to deliver the letter as addressed, the claimant may rebut the
presumption and thereby create a factual dispute as to the actual receipt of notice by a sworn affidavit
denying receipt of the notice letter.”). Giving Nielsen some leeway, as he is proceeding pro se, the court will
treat Nielsen’s statement to this effect as an affidavit. The additional information he has submitted, however,
does nothing to support his claim that he received notice on May 28, 2010. It consists of general
commentary on the state of the postal service of questionable reliability and relevance. The envelope in
which Nielsen allegedly received the notice admittedly does not have a postmark date, but it also does not
have any annotation indicating the date on which the notice was received. Such an annotation may have been
enough to constitute a reasonable showing, but a bald statement, such as the one Nielsen provides in this
case, does not suffice. Cf. Pettway, 233 F. Supp. 2d at 1357 (“Of the numerous cases reviewed, the weakest
deemed to constitute a reasonable showing was provided in Gower v. Shalala, 1993 WL 737965, at *2–3
(W.D. W. Va. 1993) . . . . The plaintiff in Gower at least produced a document purporting to corroborate the
date of receipt, but the plaintiff’s affidavit here offers only to explain how she is able to remember (some
eleven months after the fact) the precise date of receipt.”).
In some situations, the sixty-day limitation period may be tolled. Bowen v. City of New York, 476
U.S. 467, 480, 106 S. Ct. 2022, 90 L. Ed. 2d 462 (1986). Nielsen bears the burden of demonstrating that he
pursued his rights diligently and that some extraordinary circumstance stood in his way. Pace v.
DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 161 L. Ed. 2d 669 (2005). No such evidence has been put
forth. In fact, Nielsen has stated that he visited a Social Security branch office, told them about his situation,
and was advised to write a letter to the Appeals Council seeking additional time to file, which the Appeals
Council will routinely grant for good cause shown. See 20 C.F.R. §§ 404.911, 404.982. Nielsen did not seek
an extension of time from the Appeals Council and instead filed this suit one business day after the
limitations period, calculated using the presumption, expired. He has not proffered any reason that could
constitute an extraordinary circumstance that kept him from filing within the time period. It appears that he
was aware of the statutory period, and it is clear that he was not misled by the Social Security office. Cf.
Bolden v. Chater, No. 94 C 7675, 1996 WL 374122, at *2 (N.D. Ill. June 28, 1996) (equitable tolling
appropriate where plaintiff received misleading information from the Social Security office). Nielsen took a
gamble in maintaining, without any affirmative evidentiary support, that he would be able to overcome the
five-day presumption of receipt. Having lost that gamble, he may not benefit from equitable tolling. While
this is an unfortunate outcome, especially as the amount in dispute is rather small, the limitations period
“must be strictly construed.” Bowen, 476 U.S. at 479. Nielsen’s case will be dismissed with prejudice.
1. The envelope was attached to Docket No. 7 as an exhibit.

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