Little v. Astrue
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS. ; granting 10 Motion to Dismiss. IT IS ORDERED that the Findings and Recommendations of Judge Ostby are adopted full; IT IS FURTHER ORDERED that the Commissioner's Motion to Dismiss is GRANTED and the Plaintiff's case is DISMISSED WITH PREJUDICE. Signed by Judge Dana L. Christensen on 11/21/2012. (ELL, ) Modified on 11/21/2012 Copy mailed to pro se Plaintiff (ELL, ).
NOV 2 1 2012
Cle~. l:J.S Distrid Court
IN THE UNITED STATES DISTRICT COURT D•stn~i~o~~ntana
FOR THE DISTRICT OF MONTANA
LINDA M. LITTLE,
MICHAEL J. ASTRUE,
Plaintiff Linda Marlene Little, proceeding pro se, filed a claim
for benefits under Title II of the Social Security Act. On November 16, 2010,
Little's claim was denied. On March 14, 2012, the Appeals Council mailed her a
notice informing her that it had denied her request for review of the
Administrative Law Judge's decision. This notice also informed Little that she had
60 days after receipt of this notice to file suit. Little filed suit on May 21, 2012.
The Commissioner of Social Security filed a motion to dismiss the case under 42
U.S.C. §§ 405(g) and (h), arguing the Court lacks subject matter jurisdiction over
Little's complaint because it was filed more than 60 days after Little received
notice of the Administrative Law Judge's decision.
The matter was referred to Magistrate Judge Carolyn S. Ostby, who issued
Findings and Recommendations. Judge Ostby found that the Commissioner had
erred in claiming the Court lacks subject matter jurisdiction. However the Judge
recommended the Commissioner's Motion to dismiss be granted under 42 U.S.C.
§§ 405(g) and (h), as plaintiffs motion was not timely filed. Little filed objections
to the Findings and Recommendations, and is entitled to de novo review of the
specified findings and recommendations to which she objects. 28 U.S.C. §
636(b )(1 ).
The plaintiff concedes her complaint is untimely. However, she requests
that her claim not be dismissed on three separate grounds. The 60-day statute of
limitations established in§ 405(g) must be strictly construed. Bowen v. City of
New York, 476 U.S. 467, 479 (1986). However, the Court may extend the 60-day
statute of limitations period enumerated in § 405(g) "where the equities in favor of
tolling the limitation are so great that deference to the agency's judgment is
inappropriate." Id at 479. "The plaintiff bears the burden of establishing the
exceptional circumstances that warrant equitable tolling." and generally must
show fraud, misinformation or deliberate concealment. Jackson v. Astrue, 506 F.
3d 1349, 1355 (11th Cir. 2007). In the Ninth Circuit, "[e]quitable tolling focuses
on whether there was excusable delay by the plaintiff and may be applied if,
despite all due diligence, a plaintiff is unable to obtain vital information bearing
on the existence of [her] claim." Huseman v. Icicle Seafoods, Inc. , 471 F.3d 1116,
1120 (9th Cir. 2006) (internal quotation marks and citations omitted).
Little contends that she had difficulty obtaining records to use in her
appeal, that she left several messages with the District Court concerning questions
and queries about her claim but received no response from the Court, and that she
was erroneously informed by a health provider that if her appeal was post marked
prior to the date of receipt and before the 60 days were up, it would be accepted.
Little fails to show fraud, misinformation or deliberate concealment on the part of
the Defendant that would constitute equitable tolling. Unfortunately, the principles
of equitable tolling do not extend to garden variety claims of excusable neglect.
Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 96 (1990). Because plaintiffhas
failed to establish exceptional circumstances which would justify extension of the
60-day limitation period, Judge Ostby's analysis and conclusions are adopted in
In accordance with the foregoing,
IT IS HEREBY ORDERED that the Findings and Recommendations of
Judge Ostby (doc. 13) are adopted in full;
IT IS FURTHER ORDERED that the Commissioner's Motion to Dismiss
(doc. 10) is GRANTED and the plaintiffs case is DISMISSED WITH
PREJUDICE. The Clerk of Court shall close this matter and enter judgment
pursuant to Rule 58 of the Federal Rules of Civil Procedure.
~\~ day ofNovember 20
D ana .
Istensen, 1stnct Jud ge
United States District Court
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