Hudak v. Colvin

Filing 10

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Yvette Kane on 2/28/2014. (sc)

UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
JEFFREY HUDAK,
Plaintiff
vs.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant

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No. 3:13-CV-02212
(Judge Kane)

MEMORANDUM AND ORDER
The above-captioned action is an appeal pursuant to 42
U.S.C. § 405(g) of a decision of the Commissioner of the Social
Security Administration denying Plaintiff Jeffrey Hudak social
security disability insurance benefits.

Hudak is represented by

counsel.
Under 42 U.S.C. § 405(g) and relevant case law, the
court is generally limited to reviewing the administrative record
to determine whether the decision is supported by substantial
evidence.

Chapter 20 of the Local Rules for the Middle District

of Pennsylvania establishes the procedural mechanism for deciding
challenges to the denial of social security disability benefits.
On August 26, 2013, an order was issued which, inter
alia, directed the Commissioner to file an answer within 60 days
of being served with the complaint.

On November 1, 2013, the

Commissioner appropriately filed a motion to dismiss the complaint
and a brief in support thereof in lieu of the answer and the

transcript.

In the motion the Commissioner requests that Hudak’s

complaint be dismissed because it was untimely filed.
11, 2013, Hudak filed a brief in opposition.

On November

The motion to

dismiss became ripe for disposition on November 29, 2013, when the
Commissioner elected not to file a reply brief.
The Social Security Act requires that an applicant for
social security disability benefits who is denied such benefits
file a civil action with the appropriate federal district court
within sixty days after the mailing to the applicant a notice of
the final decision of the Commissioner. 42 U.S.C. § 405(g).
According to the Commissioner’s regulations, an applicant for
disability benefits may obtain review of the final decision of the
Commissioner in federal court so long as a civil action is
instituted within 60 days after receipt of the Appeals Council’s
notice of denial of a request for review.
(a), (c) (2009).

20 C.F.R. § 422.210

The date of receipt of the notice of denial of a

request for review by the Appeals Council is considered to be 5
days after the date of such notice, unless there is a reasonable
showing to the contrary.

20 C.F.R. § 422.210(c).

The facts with respect to the present motion are
undisputed.

The final decision of the Commissioner was issued on

June 13, 2013, and on that date a copy of the decision was mailed
to Hudak at his address of record, 22 Arch Avenue, Clarks Summit,
Pennsylvania 18411.

Consequently, it was presumed that Hudak

received the notice on Tuesday, June 18, 2013.
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Based on that

date, Hudak had until August 19, 2013, to file a civil action in
federal court.

Hudak, however, did not file his complaint until

Thursday, August 22, 2013, 3 days after the deadline.
There is a procedure under the Social Security
regulations for obtaining for good cause an extension of time of
the 60-day limitation period by applying to the Appeals Council
for such an extension.

20 C.F.R. § 422.210(c).

There is no

indication that Hudak took advantage of that procedure.
Hudak’s counsel does not contest the late filing but
argues it should be excused because of clerical error in his
office or in the alternative the case stayed to allow him to seek
permission from the Appeals Council to proceed with his case.
Hudak offers no explanation as to why he was unable to file a
civil action in a timely manner or why the 60-day filing period
should be equitably tolled other than counsel’s negligence.
Because it is the Appeals Council which has the
authority to equitably toll the limitation period for good cause,
it is doubtful that we have any authority in the first instance to
do so, i.e., the Appeals Council should be given the first
opportunity to address the issue.

In any event in light of the

circumstances presented, we do not see any basis for equitable
tolling by us.

However, we will grant a stay of the proceedings

until May 31, 2014, to give Hudak an opportunity to file a request
for extension with the Appeals Council.

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An appropriate order follows.
S/ Yvette Kane
Yvette Kane
United States District Judge
Date: February 28, 2014

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