Page v. Commissioner of Social Security et al

Filing 14

OPINION AND ORDER: Court GRANTS 10 Motion to Dismiss. Signed by Judge Joseph S Van Bokkelen on 3/1/2016. cc: Page (tc)

United States District Court
Northern District of Indiana
CHARMAINE PAGE,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Civil Action No. 1:15-CV-271 JVB

OPINION AND ORDER
This matter is before the Court on the motion of Defendant, the acting Commissioner of
Social Security, to dismiss pro se Plaintiff Charmaine Page’s complaint for judicial review of the
denial of her claim to have her disability benefits reinstated (DE 10). For the following reasons,
the motion is GRANTED.

A.

Facts
On September 23, 2015, Plaintiff filed her complaint against the Commissioner, alleging

that the Social Security Administration Appeals Council had denied her application for benefits
on August 17, 2015. She attached as an exhibit to her complaint a letter bearing the heading
“Notice of Appeals Council Action” dated March 27, 2015. The Notice informed Plaintiff that
the Appeals Council had denied her request for review of the administrative law judge’s decision
and advised her that if she disagreed with the action she could file a civil action. She was further
told she had sixty days after receipt of the letter to file a civil action asking for court review of
the decision, and that it would be assumed she received the letter five days after it was mailed.

Instead of filing a civil action, Plaintiff, by a letter dated April 21, 2015, (also attached as
an exhibit to her complaint) asked the Appeals Council to reopen her case. An administrative
appeals judge responded in a letter dated August 17, 2015, informing her that the Appeals
Council found no reason to reopen its March 27, 2015, decision. When Plaintiff filed her civil
action for review of the denial of her claim for benefits on September 23, 2015, 175 days had
elapsed since the date she was assumed to have received the Appeals Council decision.
In her motion to dismiss, the Commissioner argues that, under § 205(g) of the Social
Security Act, 42 U.S.C. § 405(g), and applicable regulations, a Social Security claimant must file
a civil action in federal court within sixty-five days after the date of the notice of the final
decision of the Commissioner of Social Security, meaning that Plaintiff should have filed her
civil action by June 1, 2015.1 According to the Commissioner, because her civil action was
untimely, it must be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim. In support of her motion, the Commissioner has submitted the declaration of
Nancy Chung, a Social Security Administration employee.

B.

Applicable Law
Section 205(g) of the Social Security Act provides:
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
withing 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.
Social Security regulations provide that the right to judicial review begins when the

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The sixty-fifth day fell on Sunday, May 31, 2015, so that the period was extended to the next weekday,
June 1, pursuant to Federal Rule of Civil Procedure 6(a)(1)(C).

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Appeals Council denies a claimant’s request for review and state that a civil action is to be
instituted within sixty days after the Appeals Council’s notice of the denial. 20 C.F.R. §
422.210. The sixty-day requirement is not jurisdictional, but rather is a statute of limitations,
Bowen v. City of N. Y., 476 U.S. 467, 478 (1986), which, under Federal Rule of Civil Procedure
9(c), is an affirmative defense.
Ordinarily, a Rule 12(b)(6) motion cannot be used to raise an affirmative defense.
Xechem, Inc. v. Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004). However, when a
plaintiff’s complaint admits all the ingredients of an impenetrable defense, a complaint that
otherwise states a claim may be dismissed under Rule 12(b)(6). Id. Moreover, under Rule 10(c),
a writing that is attached to a complaint is a part of the complaint for all purposes.
Another possible obstacle to relief under Rule 12(b)(6) is that, under Rule 12(d), if
matters outside the pleadings are presented to and not excluded by the court, a Rule 12(b)(6)
motion must be treated as a motion for summary judgment and all parties must be given a
reasonable opportunity to present all pertinent matter.

C.

Discussion
Dismissal under Rule 12(b)(6) is appropriate in this case because, as previously noted,

Plaintiff attached a copy of the Appeals Council’s decision denying her request for review of the
administrative law judge’s decision as an exhibit to her complaint, plainly showing that the
decision was mailed March 27, 2015, and putting the filing of her civil action well beyond the
sixty-five day limit established by the applicable law and regulations. Accordingly, the Court
can exclude the Chung declaration and will not treat the Commissioner’s motion as a motion for

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summary judgment. Plaintiff’s own complaint shows that the Commissioner has a valid statute
of limitations defense.
In her response to the Commissioner’s motion, Plaintiff insists that the final decision of
the Commissioner was the letter dated August 17, 2015, informing her that the Appeals Council
would not reopen its March 27, 2015, decision. That letter does not purport to be a decision
denying Plaintiff’s request for review of the administrative law judge’s decision. Further,
Plaintiff points to no statute, regulation, or case law that supports the proposition that a claimant
can extend the limitation period by requesting reopening of the Commissioner’s decision
denying review of the administrative law judge’s decision. Because her complaint shows that it
was filed outside the statute of limitations, it must be dismissed.

D.

Conclusion
For the foregoing reasons, the Commissioner’s motion to dismiss (DE 10) is

GRANTED.
SO ORDERED on March 1, 2016.
s/ Joseph S. Van Bokkelen
Joseph S. Van Bokkelen
United States District Judge
Hammond Division

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