Smith v. Berryhill

Filing 20

For the reasons stated above, the Court finds that Plaintiff's objection should be and is hereby overruled. The Court hereby ADOPTS the FCR (ECF No. 16 ) as the Findings and Conclusions of the Court and GRANTS Defendant's Motion to Dismiss (ECF No. 9 ). It is therefore ORDERED that Plaintiff's claims are DISMISSED with prejudice. A final judgment will issue by separate order. (Ordered by Judge Reed C. O'Connor on 3/28/2019) (skg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
WICHITA FALLS DIVISION
LONNIE CHARLES SMITH,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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Civil Action No. 7:18-cv-00053-O-BP

ORDER ACCEPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
The United States Magistrate Judge made Findings, Conclusions, and a Recommendation
(the “FCR”) (ECF No. 16) in this case. The FCR recommended that this Court grant Defendant’s
Motion to Dismiss construed as a motion for summary judgment under Rule 56. FCR 6, ECF No.
16. Plaintiff filed an objection (ECF No. 19). The Court reviewed de novo those portions of the
FCR to which Plaintiff made an objection. For the following reasons, Plaintiff’s objection is
overruled, and the Court ADOPTS the Magistrate Judge’s FCR as the Findings and Conclusions
of the Court.
I.

BACKGROUND
Plaintiff filed an application for disability insurance benefits (“DIB”) on September 3,

2014, alleging that his disability began on August 18, 2014. Mot. Dismiss, Ex. 1 (Social Security
Record), ECF No. 9-1. The Commissioner denied his claim initially and again on reconsideration
on November 21, 2014. Plaintiff requested a hearing, which was held on July 26, 2016, before
Administrative Law Judge (“ALJ”) Susan Conyers, with Smith and his attorney, Tom Schrandt,
present. Id. Vocational Expert (“VE”) James Fullilove testified at the hearing. Id. The ALJ issued
her decision on December 1, 2016, finding that Plaintiff was not entitled to disability benefits. Id.

On November 1, 2017, the Appeals Council denied Plaintiff's request for review and mailed
Plaintiff a copy of the denial. Id. Plaintiff then filed his Complaint against the Commissioner of
the Social Security Administration on April 13, 2018, seeking judicial review of the
Commissioner’s denial pursuant to Section 205 of the Social Security Act (the “SSA”), 42 U.S.C.
§ 405(g). Defendant filed the instant motion to dismiss, arguing that Plaintiff's complaint must be
dismissed for failing to file within the sixty-day statute of limitations. See generally Mot. Dismiss,
ECF No. 9. On June 18, 2018, the Magistrate Judge ordered Plaintiff to respond to Defendant’s
Motion. June 18, 2018 Order, ECF No. 10.
Due to the supplemental evidence offered and relied upon by Defendant, the Magistrate
Judge construed the motion as a motion for summary judgment pursuant to Federal Rules of Civil
Procedure 12(d) and 56, and notified Plaintiff that Defendant’s motion placed matters outside of
the pleadings. June 28, 2018 Order, ECF No. 12. By court order, Smith filed a supplement to his
response to present any summary judgment evidence in response to Defendant’s Motion. Pl.’s
Resp., ECF No. 15.
The Magistrate Judge’s FCR recommended that this Court dismiss Plaintiff’s claims
because he “has failed to bring his claim within the sixty-day statute of limitations or to raise
equitable grounds for tolling . . .” FCR 6, ECF No. 16. Plaintiff filed objections. Pl.’s Obj., ECF
No. 19. The Court has reviewed the record, FCR, and Plaintiff’s objections in this case. The FCR
is ripe for decision.
II.

ANALYSIS OF OBJECTION
A plaintiff bringing a claim under § 205 of the SSA must bring his complaint in district

court within the sixty-day statute of limitations or have equitable grounds for tolling the statute of
limitations. See 42 U.S.C. § 405(g). Here, the Commissioner’s final decision is dated November
1, 2017. Plaintiff, under the SSA, had until December 31, 2017 to file his appeal. See id. §§

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404.901, 416.1401, 422.210(c) (allowing for five day mailing presumption to be added to statute
of limitations considerations). Plaintiff filed this case on April 13, 2018—104 days after the
expiration of the statute of limitations. The Magistrate Judge found that Plaintiff had failed to
comply with the requirements of the SSA in bringing his appeal. See FCR 6, ECF No. 16.
Plaintiff objects that the procedure of the underlying proceeding was not clear and that
“had he known that a reconsideration by the [Appeals Council] was not authorized he would have
filed in district court. But also because he was not informed either way in this regard by the
[Appeals Council] he should be allowed tolling.” Pl.’s Obj. 2, ECF No. 19. But Plaintiff’s objection
is unpersuasive because the statute of limitations began to run November 1, 2017, and the decision
of the Appeals Council provides specific instructions about the statute of limitations and how to
file a civil action. See Mot. Dismiss, Ex. 1 (Appeals Council Decision) PageID 54–56, ECF No.
9-1 (informing Plaintiff he “may file a civil action (ask for court review) by filing a complaint in
the United State District Court for the judicial district in which you live” and that “[y]ou have 60
days to file a civil action.”). The statute of limitations began to run after that document was sent
to Plaintiff, and Plaintiff did not file his complaint in this Court until 169 days later, 104 days after
the permissible filing date. Plaintiff concedes that he failed to file within the statute of limitations,
see Pl.’s Obj. 2, ECF No. 19. And he has not provided a good reason or grounds for equitable
tolling based on his explanations contained in any filings with the Court. Accordingly, Plaintiff’s
objection to the FCR is OVERRULED and the Court determines that dismissal of this case on
statute of limitations grounds is proper.
III.

CONCLUSION
For the reasons stated above, the Court finds that Plaintiff’s objection should be and is

hereby overruled. The Court hereby ADOPTS the FCR (ECF No. 16) as the Findings and
Conclusions of the Court and GRANTS Defendant’s Motion to Dismiss (ECF No. 9). It is

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therefore ORDERED that Plaintiff’s claims are DISMISSED with prejudice. A final judgment
will issue by separate order.
SO ORDERED on this 28th day of March, 2019.

_____________________________________
Reed O’Connor
UNITED STATES DISTRICT JUDGE

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