Thacker v. SSA

Filing 12

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,

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Plaintiff,
v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY, 1

Civil Case No.
16-cv-00114-JMH

MEMORANDUM OPINION & ORDER

Defendant.
***

This

matter

is

before

the

Court

upon

the

Acting

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
within

the

time

provided

for

by

the

Local

Rules.

Having

considered the Acting Commissioner’s Motion, it is well taken
and will be granted.
On

March

30,

2016,

The

Social

Security

Administration’s

Appeals Council notified Plaintiff of its denial of her request
for review of the administrative law judge’s decision denying
Plaintiff’s
disability
Security

applications
insurance

Act.

This

for

a

period

benefits

under

rendered

the

of

Title
ALJ’s

II

disability

and

of

the

Social

decision

the

“final

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
under

42

U.S.C.

§

405(g)

(“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 within sixty days after the mailing to him of
notice

of

such

Commissioner
receipt

is

of

decision
Social

presumed

to

or

within

Security
be

five

such

may

further

allow.”).

days

after

the

time
The
date

as

the

date

of

of

the

notice, unless there is a reasonable showing to the contrary.
See 20 C.F.R. §§ 404.901, 416.1401, 422.210(c). Lawsuits not
filed

within

the

sixty

day

period

are

properly

subject

to

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
2

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
operation

of

the

statute

of

limitations.

See

42

U.S.C.

§

405(g)-(h).
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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