Urban v. Commissioner of Social Security
Filing
15
Memorandum Opinion and Order granting Commissioner's Motion for summary judgment (Related Doc # 10 ); therefore, Urban's request for judicial review under 42 U.S.C. § 405(g) (Related Doc # 1 ) is dismissed as untimely. Signed by Magistrate Judge William H. Baughman, Jr. on 11/30/2012. (S,G)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
CHRISTIAN ERNEST URBAN,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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CASE NO. 1:12 CV 1179
MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.
MEMORANDUM OPINION
AND ORDER
Introduction
This is an action for judicial review of the final decision of the Commissioner of
Social Security that denied Urban’s applications for disability insurance benefits and
supplemental security income.1 The parties have consented to magistrate judge’s jurisdiction.
Prior to filing an answer, the Commissioner has moved for summary judgment
pursuant to Rule 56 of the Federal Rules of Civil Procedure on the basis that Urban’s action
was filed after the 60-day limitations period applicable to this matter had expired.2 Urban has
responded to the Commissioner’s motion,3 and the Commissioner has replied.4
1
ECF # 1.
2
ECF # 10.
3
ECF # 11.
4
ECF # 12.
For the reasons given below, the Commissioner’s motion will be granted and Urban’s
complaint will be dismissed as untimely.
Facts
The relevant facts needed for resolution of the Commissioner’s motion are not
extensive nor are they disputed.
On November 16, 2010, an administrative law judge (ALJ) denied Urban’s application
for benefits, and Urban then appealed that decision to the Appeals Council.5 On March 6,
2012, the Appeals Council notified Urban and his counsel that it was denying Urban’s
request to review the ALJ’s decision, thus making the holding of the ALJ the final decision
of the Commissioner.6 Urban, represented by counsel, thereupon filed the present action for
judicial review of that decision on May 14, 1012.7
The Commissioner maintains that under the applicable law affording 60 days to file
for judicial review, Urban’s filing, to be considered timely, needed to be filed on or before
May 11, 2012, and not May 14, 2012, which is three days after the running of the limitations
period.8 In that regard, the Commissioner argues that Urban has not rebutted the statutory
5
ECF # 10 at 1 (citing transcript).
6
Id.
7
ECF # 1.
8
ECF # 10 at 4.
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presumption that he actually received notice of the decision of the Appeals Council on
March 12, 2012, or six days after the Appeals Council issued its decision on March 6, 2012.9
Urban, for his part, contends first in his complaint that he received notice of the
decision of the Appeals Council on March 14, 2012, which is two days beyond the five-day
presumption.10 However, as the Commissioner states, this allegation in the complaint is not
in the form of an affidavit or other evidence.11 Moreover, the Commissioner further maintains
that Urban’s allegation in the complaint does not address the fact that the Appeals Council’s
decision was also sent to Urban’s attorney, and that notice to counsel will be imputed to
Urban.12
Urban in his response to the Commissioner’s motion acknowledges the regulatory
presumption that the notice was received on March 12, 2012.13 He argues, however, that
60 days from March 12, 2012, was May 11, 2012, a Saturday.14 As such, the complaint was
timely filed, according to Urban, on the next business day, May 14, 2012.15
9
Id. Because five calendar days after March 6 would have been March 11, a Sunday,
the Commissioner observes that the date imputed to Urban for receipt would have been the
next business day, or Monday, March 12, 2012.
10
ECF # 1 at ¶ 9.
11
ECF # 10 at 4-5.
12
Id. at 5.
13
ECF # 11 at 2-3.
14
Id. at 2.
15
Id. at 3.
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The Commissioner, in his reply, notes that Urban is factually incorrect as to May 11,
2012 – the date the 60-day period expired – being a Saturday; it was, the Commissioner
states, actually a Friday.16 Thus, the Commissioner contends, Urban’s defense that he filed
within the time period as extended to the next business day rests on a factually incorrect
premise and is thus unavailing.17
Analysis
A.
Standards of review
1.
Limitations period for judicial review of final decisions of the Commissioner of
Social Security
As the Supreme Court has stated, Congress may require that judicial review of
administrative decisions take place according to prescribed conditions and procedures.18
Thus, judicial review of final decisions of the Commissioner of Social Security must proceed
according to the rubric set forth in 42 U.S.C. § 205(g), which provides in relevant part:
Any individual, after a final decision of the Commissioner 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 may allow.
16
ECF # 12 at 1.
17
Id. at 1-2.
18
Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336 (1958).
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This 60-day limitations period19 provided by Congress in § 205(g) has been
characterized by the Supreme Court as an appropriate means to “move millions of cases to
speedy resolution in a bureaucracy that process millions of cases annually.”20 By regulation,
a person is presumed to receive a mailed notice referred to in § 205(g) five days after the date
appearing on the notice, unless the recipient overcomes the presumption by making a
reasonable showing that actual receipt occurred later.21 Moreover, notice will be imputed to
a claimant when a claimant’s attorney is aware of the decision of the Appeals Council.22
The Sixth Circuit teaches that failure to comply with the 60-day limitations period
prescribed in § 205(g), even by as little as a single day, renders the matter liable to dismissal
as untimely, provided that equitable tolling does not otherwise excuse the non-compliance.23
In that regard, the Sixth Circuit recognizes that the five Dunlap factors are to be utilized in
determining the appropriateness of equitably tolling the limitations period in § 205(g).24
19
See, Weinberger v. Salfi, 422 U.S. 749, 764 (1975) (characterizing the 60-day period
in § 205(g) as a statute of limitations); accord, White v. Comm’r of Soc. Sec., 2002 WL
1316401, at *1, 37 F. App’x 197 (6th Cir. 2002) (unpublished opinion) (referring to 60-day
period set forth in § 205(g) as a statute of limitations).
20
Bowen v. City of New York, 476 U.S. 467, 481 (1986).
21
20 C.F.R. §§ 404.901, 422.210(c); Harris v. Comm’r of Soc. Sec., 25 F. App’x 273,
273 (6th Cir. 2001).
22
See, Fenneken v. Comm’r of Soc. Sec., 2011 WL 4558308, at *3 (S.D. Ohio
Sept. 30, 2011).
23
Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 437 (6th Cir. 2007).
24
Id. (citing Dunlap v. United States, 250 F.3d 1001, 1008 (6th Cir. 2001)).
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2.
Summary judgment
Summary judgment is appropriate where the court is satisfied “that there is no genuine
issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.”25 The burden of showing the absence of any such “genuine issue” rests with the
moving party:
[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those
portions of ‘the pleadings, depositions answers to interrogatories, and
admissions on file, together with affidavits, if any,’ which it believes
demonstrates the absence of a genuine issue of material fact.26
A fact is “material” only if its resolution will affect the outcome of the lawsuit.27
Determination of whether a factual issue is “genuine” requires consideration of the applicable
evidentiary standards.28 The court will view the summary judgment motion “in the light most
favorable to the party opposing the motion.”29
Summary judgment may be granted if a party who bears the burden of proof at trial
establishes each essential element of his case.30 Accordingly, “[t]he mere existence of a
scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be
25
Fed. R. Civ. P. 56(c).
26
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (citing Fed. R. Civ. P. 56(c)).
27
Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986).
28
Id. at 252.
29
U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962).
30
McDonald v. Petree, 409 F.3d 724, 727 (6th Cir. 2005) (citing Celotex, 477 U.S.
at 322).
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evidence on which the jury could reasonably find for the plaintiff.”31 Moreover, if the
evidence presented is “merely colorable” and not “significantly probative,” the court may
decide the legal issue and grant summary judgment.32
Once the moving party has satisfied its burden of proof, the burden then shifts to the
nonmover.33 The nonmoving party may not simply rely on its pleadings, but must “produce
evidence that results in a conflict of material fact to be solved by a jury.”34 “In other words,
the movant can challenge the opposing party to ‘put up or shut up’ on a critical issue.”35
In sum, proper summary judgment analysis entails the threshold inquiry of
determining whether there is the need for a trial – whether, in other words, there are any
genuine factual issues that properly can be resolved only by a finder of fact because they may
reasonably be resolved in favor of either party.36
B.
Application of standards – the Commissioner’s motion should be granted and
Urban’s action for judicial review should be dismissed as untimely.
As related above, Urban has neither advanced any basis for overcoming the statutory
presumption that the 60-day limitations period in his case began on March 12, 2012, nor
31
Leadbetter v. Gilley, 385 F.3d 683, 689 (6th Cir. 2004) (quoting Anderson, 477 U.S.
at 248-49).
32
Anderson, 477 U.S. at 249-50 (citation omitted).
33
Id. at 256.
34
Cox v. Kentucky Dept. of Transp., 53 F.3d 146, 149 (6th Cir. 1995).
35
BDT Prods. v. Lexmark Int’l, 124 F. App’x 329, 331 (6th Cir. 2005).
36
Anderson, 477 U.S. at 250.
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credibly shown that the limitations period ended on a weekend and so should be advanced
to the next business day. Further, Urban has neither asserted that equitable tolling applies
here or advanced any facts that would support a finding that the limitations period should be
equitably tolled under the standards set forth in Dunlap v. United States. Thus, I find that the
limitations period in Urban’s case did begin to run on March 12, 2012, thereby requiring that
this present action be filed on or before May 11, 2012. Because this matter was not filed until
May 14, 2012, I find it to be untimely and, therefore, dismissed.
Conclusion
For the reasons stated, the Commissioner’s motion for summary judgment is granted
and, therefore, Urban’s request for judicial review under 42 U.S.C. § 405(g) is dismissed as
untimely.
IT IS SO ORDERED.
Dated: November 30, 2012
s/ William H. Baughman, Jr.
United States Magistrate Judge
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