Byrd v. Commissioner of Social Security

Filing 14

Memorandum Opinion and Order granting 13 Defendant's Motion to dismiss case. See Order for details. Judge Jack Zouhary on 6/1/2015. (D,L)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
Sidney L. Byrd,

Case No. 3:14 CV 2679
Plaintiff,

MEMORANDUM OPINION
AND ORDER

-vsJUDGE JACK ZOUHARY
Commissioner of Social Security,
Defendant.

Defendant moves to dismiss Plaintiff Sidney Byrd’s Complaint, or, in the alternative, for
summary judgment (Doc. 13). The Complaint lacks supporting factual allegations but, liberally
construed, the Complaint challenges denial of supplemental security income (Doc. 1-1 at 1). Byrd
did not oppose Defendant’s Motion. This Court grants the Motion.
Defendant attaches two documents to its motion: a June 12, 2013 Notice of Unfavorable
Decision and Administrative Law Judge Decision (Doc. 13-3), denying supplemental security income
benefits; and a September 2, 2014 Notice of Appeals Council Action, declining to review the ALJ’s
decision (Doc. 13-4).
“[A] document that is not formally incorporated by reference or attached to a complaint may
still be considered part of the pleadings” for purposes of a motion to dismiss in circumstances like
those here. Greenberg v. Life Ins. Co. of Va., 177 F.3d 507, 514 (6th Cir. 1999). Specifically,
because the two Notices together are the final agency action that Plaintiff challenges, the Notices are
central to Byrd’s claims and can be considered by this Court. See id. (considering life insurance

policies attached to defendant’s motion to dismiss because “[e]ach of [plaintiffs’] six causes of action
relates to and arises from the two life insurance policies in question”).
Byrd had “sixty days after the mailing to him of notice of [the Commissioner’s final decision,]
or within such further time as the Commissioner may allow[,]” to file a Complaint in this Court
challenging the denial of benefits. 42 U.S.C. § 405(g). Relevant federal regulations generally
presume a claimant receives notice of the Commissioner’s decision within five days of the date of the
decision. See 20 C.F.R. §§ 416.1401, 422.210(c). Byrd did not petition the Appeals Council for an
extension of the sixty-day period.
Applying these rules, this Court presumes Byrd received notice of the Commissioner’s final
decision, dated September 2, 2014, on September 8, 2014. See Federal Civil Rule 6(a)(1)(C). Byrd
should have filed the Complaint by November 7, 2014. It was not filed until December 8, 2014. The
Complaint is untimely. See, e.g., White v. Comm’r of Soc. Sec., 37 F. App’x 197, 198 (6th Cir. 2002).
For these reasons, this Court grants Defendant’s Motion to Dismiss (Doc. 13).
IT IS SO ORDERED.
s/ Jack Zouhary
JACK ZOUHARY
U. S. DISTRICT JUDGE
June 1, 2015

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