Thacker v. SSA
MEMORANDUM OPINION & ORDER: Acting Commissioner's Motion to Dismiss Pursuant to Fed. Rule of Civ. P. 12(b)(6) 11 is GRANTED. Signed by Judge Joseph M. Hood on 2/16/2017. (RCB)cc: COR, Thacker
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
LISA ANNE THACKER,
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
Civil Case No.
MEMORANDUM OPINION & ORDER
Commissioner’s Motion to Dismiss Pursuant to Fed. Rule of Civ.
P. 12(b)(6) [DE 11].
Plaintiff, who is appearing pro se, has
filed no response objecting to the Acting Commissioner’s motion
considered the Acting Commissioner’s Motion, it is well taken
and will be granted.
Appeals Council notified Plaintiff of its denial of her request
for review of the administrative law judge’s decision denying
1 The caption of this matter is amended to reflect that Nancy A. Berryhill
became the Acting Commissioner of Social Security on January 23, 2017,
replacing Carolyn W. Colvin in that role.
decision” of the Commissioner, giving rise to judicial review
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 within sixty days after the mailing to him of
notice, unless there is a reasonable showing to the contrary.
See 20 C.F.R. §§ 404.901, 416.1401, 422.210(c). Lawsuits not
dismissal. Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 437-38
(6th Cir. 2007) (affirming dismissal of complaint filed only one
day late); see Shalala v. Ill. Council on Long Term Care, Inc.,
529 U.S. 1, 10 (2000) (explaining that 42 U.S.C. § 405(h) makes
the means set forth in § 405(g) the exclusive route for judicial
review under the Social Security Act).
The Notice provided to Plaintiff by the Acting Commissioner
was dated March 30, 2016, and advised Plaintiff of her right to
commence a civil action within sixty days from receipt of the
notice. Thus, the time period for seeking review from this Court
expired on June 3, 2016 (60 days from date of the notice plus 5
days for mailing), but Plaintiff did not file her Complaint
until June 6, 2016.
There is no evidence that Plaintiff filed a
request for an extension of time to file a civil action as set
forth in the Appeals Council notice, nor has she presented any
grounds upon which the Court might equitably toll the sixty-day
statute of limitations. It follows that Plaintiff’s Complaint is
out of time and, thus, jurisdiction in this Court is barred by
Accordingly, IT IS ORDERED that the Acting Commissioner’s
Motion to Dismiss Pursuant to Fed. Rule of Civ. P. 12(b)(6) [DE
11] is GRANTED.
This the 16th day of February, 2017.
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