Kessler v. Colvin

Filing 14

ORDER denying 10 Commissioner's Motion to Dismiss. The Commissioner is directed to file an Answer and the Administrative Record within 14 days of the date of this Order. Signed by Magistrate Judge Timothy J. Cavan on 5/23/2017. (JDR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
SHEILA K. KESSLER,

CV 16-140-BLG-TJC

Plaintiff,
vs.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,

ORDER DENYING
DEFENDANT’S MOTION
TO DISMISS PLAINTIFF’S
COMPLAINT

Defendant.

Plaintiff Sheila K. Kessler (“Plaintiff”) brings this action pursuant to 42
U.S.C. § 405(g), seeking review of the final decision of the Commissioner of
Social Security (“the Commissioner”), in which the Commissioner denied her
application for benefits under Title II of the Social Security Act. (Doc. 2.)
Presently before the Court is the Commissioner’s Motion to Dismiss Plaintiff’s
Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on grounds that it
is untimely. (Doc. 10.) Plaintiff has filed an opposition. (Doc. 13). The
Commissioner did not file a reply, and the time for doing so has expired.
Therefore, the motion is fully briefed and ripe for the Court’s review. Having
considered the parties’ submissions, the Court finds the Commissioner’s motion
should be DENIED.

I.

FACTUAL BACKGROUND
On April 5, 2013, Plaintiff applied for Social Security Disability Insurance

under Title II of the Social Security Act. (Doc. 2 at ¶ 5.) Plaintiff’s application
was denied, and she appealed through the administrative process. (Id.) On
January 30, 2015, following a hearing, an Administrative Law Judge (ALJ) issued
a written decision denying Plaintiff’s claim. (Id. at ¶¶ 6-7.)
On June 21, 2015, the Appeals Council sent Plaintiff notice that her request
for review of the ALJ’s decision was denied. (Id. at ¶ 8; Docs. 11-1 at ¶ 3(a); 113.) The notice informed Plaintiff that she had 60 days to file a civil action to seek
review of the ALJ’s decision. (Docs. 11-1 at ¶ 3(a); 11-3.) The notice also
informed Plaintiff that the 60 days started the day after she received the letter.
(Doc. 11-3.)
On September 8, 2016, Plaintiff filed her Complaint in this Court. (Doc. 2.)
The Commissioner now moves to dismiss the Complaint as untimely. (Doc. 10.)
II.

DISCUSSION
A.

Timeliness of the Complaint

Pursuant to 42 U.S.C. § 405(g), an individual who has been denied benefits
under the Social Security Act has 60 days to seek judicial review of the
Commissioner’s decision in federal court. Section 405(g) provides:
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 decision or within such further time as the Commissioner of Social
Security may allow.
42 U.S.C. § 405(g).
Under the Social Security Administration’s regulations, the 60-day period
begins when the claimant receives the notice, which is presumed to be 5 days after
the date the notice is mailed, unless the claimant shows the Appeals Council
otherwise. 20 C.F.R. § 422.210(c). The regulations further provide that the 60-day
time period can be extended by the Appeals Council upon a showing of good
cause. 20 C.F.R. § 404.982. Circumstances where good cause may exist include
serious illness or “unusual or unavoidable circumstances . . . which prevented you
from filing timely.” 20 C.F.R. § 404.911(b).
Here, the Appeals Council notice was dated June 21, 2016. (Doc. 11-3.)
Plaintiff is presumed to have received the notice 5 days later, on June 26, 2016. 20
C.F.R. § 404.982. It is undisputed that Plaintiff received the notice. Therefore,
Plaintiff had until August 25, 2016 to timely file her Complaint.
The Complaint was filed on September 8, 2016, 14 days after the statutory
period had run. (Doc. 2.) Plaintiff did not request an extension of time to file the
Complaint from the Appeals Council. (Doc. 11-1 at ¶ 3(b).) Therefore, the Court
finds Plaintiff’s Complaint is untimely.
///

B.

Equitable Tolling

The United States Supreme Court has held that the 60-day time limitation set
forth in §405(g) “is not jurisdictional, but rather constitutes a period of
limitations.” Bowen v. City of New York, 476 U.S. 467, 478 (1986). The Supreme
Court further held that the limitations period is subject to equitable tolling. Id. at
479-480. In so holding, the Court recognized that Section 405(g) “is contained in a
statute that Congress designed to be ‘unusually protective’ of claimants.” Id. at
479, quoting Heckler v. Day, 467 U.S. 104, 106 (1984). Under the doctrine of
equitable tolling, a claimant may be allowed to file a civil action after the 60-day
period has elapsed in “the rare case” where fairness requires it. Bowen. 476 U.S. at
481.
“Generally, a litigant seeking equitable tolling bears the burden of
establishing two elements: (1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way.” Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005). Courts have recognized that equitable tolling may be
available when counsel is incapacitate due to illness. See e.g. Cantrell v. Knoxville
Cmty. Dev. Corp., 60 F.3d 1177, 1179-1180 (6th Cir. 1995) (remanding for
determination of whether equitable tolling was appropriate based on counsel’s
mental incapacity); Fortner v. Colvin, 2013 WL 6045721, *2 (S.D. W.Va. Nov. 13,
2013) (finding counsel’s illness was an extraordinary circumstance warranting

equitable tolling in a social security case where the complaint was filed after the
60-day period).
Here, Plaintiff contends the Complaint was filed 14 days late due to her
counsel’s hospitalization, three surgeries, and admittance to a rehabilitation
facility, as well as his mental limitations during that time due to anesthetics and
pain medication. (Doc. 13-1.) This does not appear to be a case of garden variety
attorney negligence. Compare Lehman v. United States, 154 F.3d 1010, 1016 (9th
Cir. 1998) (holding negligence is not a basis for equitable tolling). Rather, the late
filing was attributable to unforeseen circumstances concerning counsel’s health.
The Court notes that Counsel was hospitalized shortly before the expiration
of the 60-day limitations period, and the Complaint was filed only 8 days after
counsel was transferred to a rehabilitation facility. (Doc. 13-1 at ¶¶ 2-3.) In the
interim, counsel underwent three surgeries and states he was very confused due to
the medications he was taking. (Id.) Given the circumstances, it appears counsel
filed the Complaint as soon as he was able. Thus, there is no indication Plaintiff or
her counsel were not pursuing her rights diligently. It appears that Plaintiff timely
pursued her claim through the administrative process. Presumably, were it not for
counsel’s illness, the Complaint would have similarly been timely filed.
Moreover, the Commissioner has not made a showing that the government was
prejudiced by the 14-day delay. Accordingly, the Court finds equitable tolling is

warranted because Plaintiff was unable to timely file her complaint “as a result of
external circumstances beyond [her] direct control.” Kwai Fun Wong v. Beebe,
732 F.3d 1030, 1052 (9th Cir. 2013).
III.

CONCLUSION
For the foregoing reasons, IT IS HEREBY ORDERED that the

Commissioner’s Motion to Dismiss is DENIED. The Commissioner is directed to
file an Answer and the Administrative Record within 14 days of the date of this
order.
IT IS ORDERED.
DATED this 23rd day of May, 2017.

_______________________________
TIMOTHY J. CAVAN
United States Magistrate Judge