James v. Social Security Adm.
MEMORANDUM Opinion and Order Signed by the Honorable Mary M. Rowland on 11/6/2017. Mailed notice. (dm, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
Commissioner of Social Security,
No. 17 C 5252
Magistrate Judge Rowland
MEMORANDUM OPINION AND ORDER
This action was brought under 42 U.S.C. § 405(g) to review the final decision
of the Commissioner of Social Security denying Plaintiff Alonzo James’ claim for
Disability Insurance Benefits and Supplemental Security Income. The parties have
consented to the jurisdiction of the United States Magistrate Judge pursuant to 28
U.S.C. § 636(c). Before Plaintiff filed his opening brief in the case, Defendant filed
the present motion to dismiss the complaint as untimely. For the reasons that
follow, Defendant’s motion to dismiss (Dkt. No. 15) is denied.
Under the Social Security Act, a party seeking judicial review of an
unfavorable final decision of the Commissioner of Social Security may do so “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
Nancy A. Berryhill is substituted for her predecessor, Carolyn W. Colvin, pursuant to Federal Rule of
Civil Procedure 25(d).
allow.” 42 U.S.C. §405(g); see also 20 C.F.R. § 416.1481 (“[A claimant] may file an
action in a Federal district court within 60 days after the date you receive notice of
the Appeals Council’s action.”); 20 C.F.R. § 422.210(c) (“[T]he date of receipt of
notice of denial of request for review . . . shall be presumed to be 5 days after the
date of such notice, unless there is a reasonable showing to the contrary.”).
The 60–day filing requirement in 42 U.S.C. § 405(g) is not a jurisdictional
limit, but rather a period of limitations which, consistent with congressional
purpose, may be equitably tolled. Bowen v. New York, 476 U.S. 467, 474 (1986). The
Bowen court noted that the limitations period created by § 405(g) is part of a statute
that is “unusually protective” of claimants, and that Congress has authorized the
agency to grant extensions of time for reasons of fairness such as illness, accident,
destruction of records, mistake, or a claimant's misunderstanding of the appeals
process. Id. at 480, n. 12. Further, a court may toll the limitations period in cases
where “the equities in favor of tolling the limitations period are ‘so great that
deference to the agency’s judgment is inappropriate.’” Id. at 480. “Generally, a
litigant seeking equitable tolling bears the burden of establishing two elements: (1)
that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Pace v. DiGuglielmo, 125 S. Ct. 1807, 1814 (2005).
Here, the Appeals Council Notice was dated May 9, 2017. (Dkt. 16 at 36-38).
Plaintiff does not dispute that he received the notice within five days of that date.
Therefore, applying the agency’s five-day rule, he had until July 13, 2017, to file a
timely complaint. Plaintiff filed his complaint seeking judicial review of the
Commissioner’s final decision on July 17, 2017. (Dkt. 1). Defendant argues that
Plaintiff’s action is time-barred as Plaintiff “provided no good cause explanation for
the late filing.” (Dkt. 16 at 4).
In his response to the motion to dismiss, Plaintiff’s counsel submitted a
signed affidavit by Plaintiff. In the affidavit, Plaintiff asserts that he was unsure of
the exact filing deadline and contacted Social Security using the number listed on
the Appeals Council Notice in June 2017 and was informed that the due date for the
appeal was Monday July 17, 2017. (Dkt. 21-1). Relying on that information, he
went to file his complaint on July 11, 2017 and was told he needed to return with
additional copies of all of the documents. Id. He then returned on July 17, 2017 and
filed his appeal with the clerk of the court. Id. Plaintiff was unrepresented at the
time he filed the appeal.
The Court gives Plaintiff some leeway, as he was proceeding pro se at the
time of filing, and accepts his statements in his sworn affidavit. 2 Courts have found
that “fairness dictates that the limitations period be equitably tolled” when a pro se
claimant “was diligently pursuing his rights, and relied on incorrect information
given to him by a court employee.” Purchase v. Colvin, No. 15-CV-1075-JPG-CJP,
2016 WL 6963301, at *2 (S.D. Ill. Nov. 29, 2016); see also Bolden v. Chater, No. 94 C
The Court is unconvinced by Defendant’s attempt to discredit Plaintiff because he wrote the wrong
phone number on his affidavit. In his affidavit, Plaintiff asserted that he called the number on the Appeals
Council Notice to inquire about the exact filing deadline. There were 2 numbers listed on the Appeals
Council Notice: 1) the Inspector General’s Fraud Hotline number; and 2) the number of the local office to
call with questions. (See Dkt. 16 at 36-38). Plaintiff listed the number of the Inspector General’s Fraud
Hotline in his affidavit as the number he called. There is no evidence that this was anything but an
7675, 1996 WL 374122, at *2 (N.D. Ill. June 28, 1996) (finding that “misleading
information given by the Social Security office [to a pro se claimant] warrants
equitable tolling of the statute of limitations.”). Similar to the pro se claimants in
Purchase and Bolden, here, Plaintiff attests that he relied upon erroneous
information from the clerk of the court and was thus four days late in his filing.
Defendant’s citation to social security cases where a pro se claimant was
denied equitable tolling are inapposite. In Nielsen and Sims, the claimants gave no
reasons for their late filing and were thus denied equitable tolling. See Nielsen v.
Astrue, 456 Fed. App’x 601 (7th Cir. 2012); Sims v. Comm’r of Soc. Sec., No. 01 C
778, 2002 WL 31883061 (N.D. Ill. august 29, 2002). In Schoenrock, the court found
that the claimant’s actions showed that he was not pursing his rights diligently; and
that the claimant proffered no good cause reasons for his late filing (i.e. having car
trouble and being busy preparing to move). Schoenrock v. Astrue, No. 09-cv-0565,
2010 WL 454768 (W.D. Wis. Feb. 4, 2010).
Taking into account his pro se status at the time of filing, the Court finds
that, similar to Purchase and Bolden, Plaintiff has met his burden of showing that
he pursued his rights diligently and that some extraordinary circumstance, i.e.,
relying upon inaccurate information from a court employee, stood in his way. Under
these circumstances, the Court finds that Plaintiff’s brief filing delay is entitled to
For the foregoing reasons, Defendant’s Motion to Dismiss Plaintiff’s
Complaint (Dkt. No. 15) is denied.
Dated: November 6, 2017
E N T E R:
MARY M. ROWLAND
United States Magistrate Judge
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