JENNINGS v. COLVIN
ENTRY ON DEFENDANT'S MOTION TO DISMISS - Accordingly, for the reasons stated above, the Commissioner's Motion to Dismiss (Filing No. 17) is GRANTED and this action is DISMISSED. ** See order ** Copy to Plaintiff via U.S. Mail. Signed by Judge Tanya Walton Pratt on 7/6/2016. (JLS)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
LAURA A. JENNINGS,
CAROLYN W. COLVIN, Acting Commissioner
of the Social Security Administration
Case No. 1:16-cv-00005-TWP-DML
ENTRY ON DEFENDANT’S MOTION TO DISMISS
This matter is before the Court on Defendant Carolyn Colvin’s, the Acting Commissioner
of the Social Security Administration (“the Commissioner”), Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b). For the reasons explained in this Entry, the Commissioner’s
Motion (Filing No. 17) is GRANTED.
Plaintiff, Laura A. Jennings (“Ms. Jennings”), filed applications for disability insurance
benefits (“DIB”) and supplemental security income (“SSI”) on May 10 2012. (Filing No. 18-1 at
2.) Her applications were denied initially on July 31, 2012, and again upon reconsideration on
October 19, 2012. Id. As is standard, the notice of reconsideration informed Ms. Jennings that
she could request a hearing, but must do so no later than sixty days after receiving the notice. Ms.
Jennings timely requested a hearing on December 3, 2012, and a hearing was held. Thereafter, on
January 31, 2014, the Administrative Law Judge (“the ALJ”) issued an unfavorable decision,
finding that Ms. Jennings was not disabled. Ms. Jennings filed a timely request for review of the
ALJ’s decision and on May 11, 2015, the Appeals Council issued an action denying her request
for review of the ALJ’s decision, making the ALJ’s decision the final decision of the
Commissioner for purposes of judicial review. Id. at 3. According to the Commissioner’s
calendar, no further action was pursued on this claim. Id. at 3.
On June 5, 2015 Ms. Jennings filed a subsequent application for a period of DIB and SSI
benefits, which was denied initially on October 14, 2015 and upon reconsideration on December
18, 2015. Id at 3. Rather than file a request for hearing as she had done with her initial application,
on January 4, 2016, Ms. Jennings, pro se, filed the Complaint herein, seeking judicial review.
(Filing No. 1.) On April 21, 2016 the Commissioner filed a Motion to Dismiss the Complaint on
two bases: (1) if Ms. Jennings is seeking review of the May 11, 2015 decision, her appeal is not
timely filed and she has not shown good cause for the untimely appeal; and (2) if she is seeking
review of the December 18, 2015 determination, that determination is not a final appealable
After the time within which Ms. Jennings should have responded to the motion to dismiss
expired, the Court issued an order allowing her up to and including May 25, 2016 to file a response,
if any. (Filing No. 19.) To date, no response has been filed.
II. LEGAL STANDARD
A motion to dismiss under Rule 12(b)(1) challenges the court’s subject matter jurisdiction.
Fed. R. Civ. P. 12(b)(1). The burden of proof is on the party asserting jurisdiction. Sapperstein v.
Hager, 188 F.3d 852, 855 (7th Cir. 1999). In determining whether subject matter jurisdiction
exists, the court must accept all well-pleaded facts alleged in the complaint and draw all reasonable
inferences from those facts in the plaintiff’s favor. Id. “A document filed pro se is to be liberally
construed,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), but a complaint as a whole must reveal a
proper basis for jurisdiction. See Loss v. Blankenship, 673 F.2d 942, 950 (7th Cir. 1982).
When reviewing a 12(b)(6) motion, the Court takes all well-pleaded allegations in the
complaint as true and draws all inferences in favor of the plaintiff. Bielanski v. County of Kane,
550 F.3d 632, 633 (7th Cir. 2008) (citations omitted). However, the allegations must “give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests” and the “[f]actual
allegations must be enough to raise a right to relief above the speculative level.” Pisciotta v. Old
Nat’l Bancorp, 499 F.3d 629, 633 (7th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)). Stated differently, the complaint must include “enough facts to state a claim to
relief that is plausible on its face.” Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009)
(citations omitted). To be facially plausible, the complaint must allow “the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citation omitted).
In relevant parts, Ms. Jennings’ Complaint alleges the following: “The plaintiff initially
applied in 2012. It was denied 2015. Plaintiff was asked to reapply in 2015 and cause was again
denied 18 December 2015 without examination of all medical records.” (Filing No. 1 at 2.)
Because it appears that she challenges both the May 11, 2015 decision and the December 18, 2015
determination, the Court will address both claims.
The May 11, 2015 Decision
To the extent that Ms. Jennings seeks review of the ALJ’s May 11, 2015 decision, the
Commissioner asserts correctly, that she had sixty days, or until July 13, 2015, within which to file
a complaint in federal court. Because her Complaint was not filed until January 4, 2016 – almost
six months after the deadline – the Commissioner argues that her Complaint should be dismissed
An individual must commence a civil action “within sixty days after the mailing to him of
notice of [the Commissioner’s final] decision.” 42 U.S.C. § 405(g). The sixty day time period
begins when the person receives the notice. 20 C.F.R. §§ 404.981, 422.210(c). The final decision
of the Commissioner in this case was issued on May 11, 2015, when the Appeals Council denied
Ms. Jennings’ request for review of the ALJ’s decision. The date of receipt is presumed to be five
days after the date of such notice, unless a reasonable showing to the contrary is made to the
Appeals Council. See 20 C.F.R. §§404.901, 422.210(c).
A person can overcome the five day presumption by a reasonable showing that the notice
was received on a different date. Boyer v. Astrue, 2012 WL 6084633. Under the timeline
presented, Ms. Jennings was required to file a civil action on or before July 13, 2015, unless a
reasonable showing to the contrary is made to the Appeals Council. Ms. Jennings offers no
evidence to rebut the presumption that she received the notice outside of five days after it was
dated or that she made a showing otherwise to the Appeals Council.
Additionally, the sixty day statutory filing period may be subject to waiver, estoppel, or
equitable tolling. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, (1982). Equitable
tolling is proper if the plaintiff diligently pursued his rights and extraordinary circumstances
beyond his control prevented him from timely filing his complaint. Lee v. Cook Cnty., Ill., 635
F.3d 969, 972 (7th Cir.2011). Here, the Commissioner has not waived the defense of untimeliness
and Ms. Jennings does not make an estoppel or equitable tolling argument.
Unfortunately for Ms. Jennings, her failure to respond to the Motion to Dismiss is fatal to
her claim. Ms. Jennings’ Complaint alone does not contain the information the Court needs to
evaluate the Commissioner’s Motion to Dismiss. When a defendant files pertinent documents
with a motion to dismiss, the documents “are considered part of the pleadings if they are referred
to in the plaintiff’s complaint and are central to [his] claim.” Venture Assocs. Corp. v. Zenith Data
Sys. Corp., 987 F.2d 429, 431 (7th Cir.1993). Accordingly, the Court may appropriately consider
the Notice of Appeals Council Action (Filing No. 81-1 at 55) presumably sent and received by Ms.
Jennings within five days, as submitted by the Commissioner with its Motion to Dismiss.
Ms. Jennings has not rebutted the presumptive five day notice requirement and none of the
other exceptions apply. For these reasons, the Court concludes that the Complaint, as it relates to
the May 11, 2015 decision was untimely filed pursuant to 42 U.S.C. § 405(g), and must be
dismissed for failure to state a claim upon which relief may be granted.
The December 18, 2015 Determination
To the extent that Ms. Jennings seeks review of the December 18, 2015 denial upon
reconsideration, that determination is not a “final decision of the Commissioner of Social Security
made after a hearing.” 42 U.S.C. § 405(g). In other words, seeking judicial review of the
December 18, 2015 ruling is premature; therefore, this Court lacks subject matter jurisdiction.
Subject matter jurisdiction is vested in this Court to review claims arising under the Social
Security Act in 42 U.S.C. § 405(g). Section 405(g) provides that “[a]ny individual, after any final
decision of the Commissioner of Social Security made after a hearing . . . 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.” Further, the Commissioner’s regulations set forth that the dismissal of a hearing
request is binding, thus not subject to judicial review. 20 C.F.R. § 404.959. See Califano v.
Sanders, 430 U.S. 99, 108 (1977) (stating that judicial review of Social Security actions are clearly
limited “to a particular type of agency actions, a ‘final decision of the Secretary made after a
hearing’”); Watters v. Harris, 656 F.2d 234, 238–39 (7th Cir. 1980) (“[R]efusals to extend
administrative deadlines for requesting a hearing before an ALJ are not reviewable under Section
The Court does not have subject matter jurisdiction over Ms. Jennings’ Complaint as it
relates to the December 18, 2015 determination because there has not been a reviewable final
decision made after a hearing. Therefore, the motion to dismiss this claim must also be granted
and this action dismissed without prejudice as the Court lacks subject matter jurisdiction 1.
Accordingly, for the reasons stated above, the Commissioner’s Motion to Dismiss (Filing
No. 17) is GRANTED and this action is DISMISSED.
Laura A. Jennings
6500 W. U.S. 52
New Palestine, Indiana 46163
Kathryn E. Olivier
UNITED STATES ATTORNEY’S OFFICE
Denial of relief and dismissal of the case ends this action in the district court. The fact that the dismissal is without
prejudice to filing another suit does not make the case unappealable. When an action is “infected with an incurable
jurisdictional defect,” the judgment should dismiss the action in its entirety and may use the words “without prejudice”
so as not to impede the plaintiff’s ability to bring the claim in a different court. Am. Nat’l Bank & Trust Co. of Chicago
v. Equitable Life Assur. Soc. of U. S, 406 F.3d 867, 874-75 (7th Cir. 2005).
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?