Dye v. SSA

Filing 12

MEMORANDUM OPINION & ORDER: (1) Clerk shall STRIKE Pla's 11 Response as untimely. (2) Dft's 9 Motion to Substitute Acting Com of SSA Carolyn W. Colvin for now former Com Michael J. Astrue as Dft is GRANTED. (3) 9 Motion to Dismiss is GRANTED. (4) 1 Complaint is DISMISSED as untimely. (5) This order is FINAL AND APPEALABLE and THERE IS NO JUST CAUSE FOR DELAY. (6) The Clerk shall STRIKE THIS MATTER FROM THE ACTIVE DOCKET. Signed by Judge Joseph M. Hood on 4/23/2013.(SCD)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

DENNIS DYE,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,
Defendant.

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Civil Case No.
12-cv-351-JMH

MEMORANDUM OPINION & ORDER

***

This matter is before the Court upon the Defendant’s Motion
to Dismiss [DE 9] Plaintiff’s claim pursuant to Fed R. Civ. P.
12(b)(6) for failure to state a claim upon which relief can be
granted.1

The motion is ripe for consideration and shall be

granted.2
42 U.S.C. § 405(g) provides that:
Any individual, after any final decision of the
Commissioner made after a hearing to which he was
a
party,
irrespective
of
the
amount
in
1

Defendant’s Motion was filed on March 15, 2013. A response was due no later
than April 8, 2013, in light of the time limits set forth in LR 7.1(c) and
Fed. R. Civ. P. 6(d). No request for an extension of time to file a response
was requested nor did Plaintiff request leave to file the response which he
filed on April 22, 2013—two weeks after the deadline to respond had passed
[DE 11] . Accordingly, upon the Court’s own motion, the Clerk shall strike
Plaintiff’s Response as untimely.
2

Defendant requests that Acting Commissioner of Social Security Carolyn W.
Colvin be substituted for now former Commissioner Michael J. Astrue as
Defendant in this matter. The request for relief will be granted. See Fed.
R. Civ. P. 25(d).

1

controversy, 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
or
within
further
time
as
the
Commissioner may allow.

20 C.F.R. 422.210(c) further provides that:
…the date of receipt of notice of denial of request
for review of the presiding officer’s decision or
notice of the decision by the Appeals Council shall be
presumed to be 5 days after the date of such notice,
unless there is a reasonable showing to the contrary.

Plaintiff filed for Title II and XVI disability benefits,
which were denied initially, on reconsideration, and after a
hearing before an administrative law judge (ALJ) in a written
decision dated January 23, 2012.

In a Notice, dated March 29,

2012, the Appeals Council denied Plaintiff’s request for review
of the ALJ’s decision, rendering the ALJ’s decision the final
decision

of

the

Commissioner.

In

that

Notice,

the

Appeals

Council advised Plaintiff and his counsel of the denial, his
right to commence a civil action within sixty (60) days from the
date of receipt of the Appeals Council’s denial notice, and that
the notice would be presumed to be received five (5) days after
the date on the notice, unless the Plaintiff could show that he
did not receive it within that five (5) day period.

Plaintiff

filed the present appeal on November 28, 2012.
Assuming, in the absence of evidence to the contrary,

that

Plaintiff received the March 29, 2012, Notice from the Appeals
2

Counsel no later than April 3, 2012, see 20 C.F.R. 422.210(c),
Plaintiff’s action in this Court should have been commenced no
later than June 4, 2012, to be considered timely.
§ 405(g).
which

See 42 U.S.C.

There is no evidence of extraordinary circumstances

would

permit

equitable

tolling

of

the

deadline.

See

Graham-Humphreys v. Memphis Brooks Museum of Art, Inc., 209 F.3d
552, 560-61 (6th Cir. 2000); see also Kellum v. Commissioner of
Social Sec., 295 Fed. Appx. 47,49 (6th Cir. 2008). As it stands,
the action was commenced 177 days out of time.

Accordingly,

this action shall be dismissed.
Accordingly, IT IS ORDERED:
(1)

That, upon the Court’s own motion, the Clerk shall

STRIKE Plaintiff’s Response [DE 11] as untimely.
(2)

That

Defendant’s

Motion

to

Substitute

Acting

Commissioner of Social Security Carolyn W. Colvin for now former
Commissioner Michael J. Astrue as Defendant in this matter [DE
9] is GRANTED.
(3)

That

the

Defendant’s

That

Plaintiff’s

Motion

to

Dismiss

[DE

9]

is

DISMISSED

as

GRANTED;
(4)

Complaint

[DE

1]

is

untimely.
(5)

That this order is FINAL AND APPEALABLE and THERE IS

NO JUST CAUSE FOR DELAY.

3

(6)

That

the

Clerk

shall

STRIKE

ACTIVE DOCKET.
This the 23rd day of April, 2013.

4

THIS

MATTER

FROM

THE