Peters v. Commissioner of the Social Security Administration

Filing 22

ORDER signed by Magistrate Judge Nancy GRANTING 18 Motion to Dismiss. IT IS FURTHER ORDERED that this case be and hereby is DISMISSED. IT IS ALSO ORDERED that the Clerk of Court is directed to enter judgment accordingly. (cc: all counsel and mailed to pro se party)(blr)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JENNY P.,
Plaintiff,
v.

Case No. 21-CV-78

KILOLO KIJAKAZI,
Acting Commissioner of Social Security1,
Defendant.
DECISION AND ORDER GRANTING DEFENDANT’S MOTION TO DISMISS
Plaintiff, who is representing herself, seeks judicial review of the final decision of the
Commissioner of the Social Security Administration denying her claim for disability
insurance benefits and supplemental security income under the Social Security Act, 42 U.S.C.
§ 405(g). (Docket # 1.) The Commissioner has moved to dismiss Plaintiff’s complaint as
untimely. (Docket # 18.)
Pursuant to 20 C.F.R. § 422.210(c), a claimant has sixty days after the Appeals
Council’s notice of denial of request for review to file a civil action. The date of receipt of the
notice is presumed to be five days after the date of the Appeals Council’s notice. Id. However,
“the 60–day requirement is not jurisdictional, but rather constitutes a period of limitations,”
Bowen v. City of New York, 476 U.S. 467, 478 (1986), (citations omitted), which is subject to
equitable tolling, id. at 480–81. Under the doctrine of equitable tolling, a person’s failure to
file a civil complaint within the time specified may be excused if she can show that she was

The court has changed the caption to reflect Kilolo Kijakazi’s appointment as acting commissioner. See Fed.
R. Civ. P. 25(d).
1

Case 2:21-cv-00078-NJ Filed 01/10/22 Page 1 of 3 Document 22

prevented from filing by extraordinary circumstances beyond her control. Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005).
In this case, the Appeals Council denied Plaintiff’s request for review on November 9,
2020 (Declaration of Dexter Potts (“Potts Decl.”) ¶ 3, Ex. 2, Docket # 20-2.) A copy of this
notice was mailed to Plaintiff’s address. (Id.) Again, the date of receipt of the notice is
presumed to be five days after the date of such notice, unless a reasonable showing to the
contrary is made. 20 CFR. § 422.210(c). In other words, Plaintiff had sixty-five days from
November 9, 2020 in which to file her complaint in this court, which would have been
Wednesday, January 13, 2021. Plaintiff did not file her complaint until January 19, 2021.
(Docket # 1.)
Although Plaintiff’s complaint was filed only six days late, courts strictly construe the
statute of limitations in Social Security appeals and “[e]ven one day’s delay in filing the action
is fatal.” Wiss v. Weinberger, 415 F. Supp. 293, 294 (E.D. Pa. 1976); see also Cook v. Comm’r of
Soc. Sec., 480 F.3d 432, 437 (6th Cir. 2007) (affirming district court’s dismissal of complaint
filed one day late). Under these circumstances, I must find that Plaintiff’s complaint was
untimely filed.
There is one final consideration. Even though Plaintiff’s complaint was untimely filed,
because the sixty-day requirement is not jurisdictional, it is subject to equitable tolling. Bowen,
476 U.S. at 478, 480–81. Under the doctrine of equitable tolling, a person’s failure to file a
civil complaint within the time specified may be excused if she can show that she was
prevented from filing by extraordinary circumstances beyond her control. Pace, 544 U.S. at
418. Plaintiff does not attempt to establish that equitable tolling applies in her case. In fact,
Plaintiff has not responded to the motion to dismiss. Because Plaintiff’s complaint was

2

Case 2:21-cv-00078-NJ Filed 01/10/22 Page 2 of 3 Document 22

untimely and she has not shown equitable tolling excuses the untimeliness, the
Commissioner’s motion to dismiss plaintiff’s complaint as untimely will be granted.
ORDER
NOW, THEREFORE, IT IS ORDERED that the Commissioner’s Motion to
Dismiss (Docket # 18) is GRANTED.
IT IS FURTHER ORDERED that this case be and hereby is DISMISSED.
IT IS ALSO ORDERED that the Clerk of Court is directed to enter judgment
accordingly.

Dated at Milwaukee, Wisconsin this 10th day of January, 2022.

BY THE COURT:

NANCY JOSEPH
JOSEPH
OS
OSEP
United States Magistrate Judge

3

Case 2:21-cv-00078-NJ Filed 01/10/22 Page 3 of 3 Document 22