Toombs v. Commissioner of Social Security

Filing 10

ORDER denying 7 Motion to Dismiss for Lack of Jurisdiction. Signed by Magistrate Judge David A. Sanders on 3/26/18. (jcm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
OXFORD DIVISION
GINGER PATRICE TOOMBS
V.

PLAINTIFF
CIVIL ACTION NO. 3:17-cv-00206-DAS

COMMISSIONER OF SOCIAL SECURITY

DEFENDANT

ORDER DENYING MOTION TO DISMISS
This cause is before the court on the Defendant Commissioner of Social Security’s
Motion to Dismiss for lack of jurisdiction. Claimant Ginger Toombs has responded. The parties
have consented to entry of final judgment by the United States Magistrate Judge under the
provisions of 28 U.S.C. § 636(c), and this matter is ripe for review.
42 U.S.C. § 405(g) provides in pertinent part:
Any individual, after any final decision of the Commissioner of Social
Security, . . . 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
such further time as the Commissioner of Social Security may allow.
The Commissioner has interpreted “mailing” as the date of receipt by the individual of the
Appeals Council’s notice of denial of request for review of the presiding officer’s decision or of
the Appeals Council’s decision. 20 C.F.R. § 422.210(c). The date of receipt is presumed to be
five days after the date on the notice, unless there is a reasonable showing to the contrary.
On August 8, 2017, the Appeals Council of the Social Security Administration denied the
claimant’s request for review of the Administrative Law Judge’s (“ALJ”) denial of her claim for
disability benefits. As a result, the ALJ’s decision became the “final decision” of the
Commissioner, and the claimant had sixty days from receipt of the Council’s notice to file the
present action. See, e.g., Fletcher v. Apfel, 210 F.3d 510, 512-13 (5th Cir. 2000). Allowing five
days for mail, the complaint was due in this Court on or before October 12, 2017, but was filed

on October 13, 2017. The Commissioner, therefore, moves for dismissal.
Claimant responds that the notice of denial was not received until August 14, 2017.
According to Claimant, the notice did not arrive at close of business on Friday, August 11, 2017
(the third day allowed for mailing). Claimant’s five-day mailing presumption expired on Sunday,
August 13, 2017.
The Court finds Clamant has rebutted the five-day presumption and accepts that she
received the Appeals Council’s notice of denial on Monday, August 14, 2017. Accordingly, she
had until October 13, 2017, to file her complaint, which was timely filed. Therefore, the
Commissioner’s motion to dismiss is DENIED.
SO ORDERED, this the 26th day of March, 2018.

/s/ David A. Sanders
UNITED STATES MAGISTRATE JUDGE