McElfresh v. Commissioner of Social Security

Filing 13

Memorandum Opinion and Order: Defendant's motion to dismiss is granted; plaintiff's complaint is dismissed in its entirety with prejudice (Related document 12 ). Signed by Magistrate Judge George J. Limbert on 11/8/16. (S,AA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
WESTERN DIVISION

HARRY W. MCELFRESH,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN1,
)
ACTING COMMISSIONER OF SOCIAL )
SECURITY,
)
)
Defendant.
)

CASE NO. 3:16CV1364
MAGISTRATE JUDGE
GEORGE J. LIMBERT

MEMORANDUM OPINION
AND ORDER

This matter is before the undersigned on a motion to dismiss filed by Defendant
Commissioner of Social Security (“Defendant”) on September 26, 2016. ECF Dkt. #12. In the
motion to dismiss, Defendant asserts that Plaintiff Harry W. McElfresh’s (“Plaintiff”) complaint
should be dismissed because the complaint was not timely filed. Id. at 1. Plaintiff did not file a
response.
For the following reasons, the Court GRANTS Defendant’s motion to dismiss (ECF Dkt.
#12) and DISMISSES Plaintiff’s complaint in its entirety with prejudice.
I.

PROCEDURAL HISTORY
Plaintiff filed the instant suit on June 6, 2016. ECF Dkt. #1. The parties consented to the

jurisdiction of the undersigned on July 25, 2016. ECF Dkt. #10. On September 26, 2016, Defendant
filed the motion to dismiss currently at issue and the transcript of proceedings before the Social
Security Administration (the “Transcript”). ECF Dkt. #12. Per the Court’s Initial Order, issued on
June 16, 2016, Plaintiff had thirty days following the filing of the Transcript to file a brief on the
merits of his case. ECF Dkt. #6. This thirty-day period has since passed with no brief having been
filed by Plaintiff. Likewise, the thirty-day period for Plaintiff to respond to Defendant’s motion to
dismiss has passed with no response having been filed. See Local Rule 7.1.
1

On February 14, 2013, Carolyn W. Colvin became the acting Commissioner of Social Security,
replacing Michael J. Astrue.

II.

ANALYSIS
In the motion to dismiss, Defendant asserts that Plaintiff’s case is barred by Section 205(g)

of the Social Security Act (the “Act”), and thus should be dismissed with prejudice. ECF Dkt. #12
at 2-4. Sections 205(g) and 205(h) of the Act authorize judicial review in cases arising under Title
II of the Act. See 42 U.S.C. §§ 205(g)-(h). 42 U.S.C. § 205(g) provides:
Any individual, after any final decision of [Defendant] 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 [Defendant] may allow.
42 U.S.C. § 205(h) then provides:
No findings of fact or decision of [Defendant] shall be reviewed by any person,
tribunal, or governmental agency except as herein provided. No action against the
United States, [Defendant] or any officer or employee thereof shall be brought under
section 1331 or 1346 of Title 26, United States Code, to recover on any claim arising
under this subchapter.
Accordingly, 42 U.S.C. § 205(g) is the exclusive jurisdictional basis for judicial review in cases
arising under the Act, such as the instant case.
Per 42 U.S.C. § 205(g), a claimant must file a civil action in federal district court within sixty
days after receiving notice of any final decision issued by Defendant to obtain review of that
decision. The date of receipt is presumed to be five days after the date of such notice, unless the
claimant can show that the date of receipt was outside of the five-day period. 20 C.F.R. §§ 404.901,
422.210(c). The Notice of Appeals Council Action, the final decision issued by Defendant in this
case, was issued on March 25, 2016. Plaintiff has not shown, or attempted to show, that he received
the final decision outside of the five-day period presumed for receipt. Accordingly, the sixty-day
period to commence a civil action, preceded by the five-day period presumed for receipt of notice
of the final decision, expired on May 29, 2016. Defendant correctly asserts that since May 29, 2016,
was a Sunday, and May 30, 2016, was a holiday, Plaintiff was required to commence his civil action
on or before May 31, 2016. See Fed. R. Civ. P. 6(a)(1)(C). Plaintiff did not commence the instant
suit until June 6, 2016.2 ECF Dkt. #1. Further, Plaintiff makes no indication that any basis for

2

Plaintiff dated his complaint June 9, 2016, however, the complaint was filed in the CM/ECF system
on June 6, 2016. See ECF Dkt. #1 at 1. In any event, Plaintiff’s case is time-barred for the reasons provided

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equitable tolling exists, and, in any event, Plaintiff has not actively pursued his judicial remedies as
he has not filed a brief on the merits and has not responded to Defendant’s motion to dismiss. See
Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990).3 Consequently, Plaintiff’s case is barred
by Section 205(g) of the Act, and it is proper to dismiss the case with prejudice.
III.

CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s motion to dismiss (ECF Dkt.

#12) and DISMISSES Plaintiff’s complaint in its entirety with prejudice.

Date: November 8, 2016

/s/George J. Limbert
GEORGE J. LIMBERT
UNITED STATES MAGISTRATE JUDGE

herein.
3

In Irwin, the Supreme Court of the United States held:

Federal courts have typically extended equitable relief only sparingly. We have allowed
equitable tolling in situations where the claimant has actively pursued his judicial remedies
by filing a defective pleading during the statutory period, or where the complainant has been
tricked by his adversary’s misconduct into allowing the filing date to pass. We have
generally been much less forgiving in receiving late filings where the claimant failed to
exercise due diligences in preserving his legal rights.
498 U.S. at 96 (internal citations omitted).

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