Summerfield, Jessica v. Colvin, Carolyn

Filing 15

ORDER denying 11 Motion to Dismiss. Signed by District Judge James D. Peterson on 4/29/2016. (jls)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JESSICA R. SUMMERFIELD,
Plaintiff,
v.

OPINION & ORDER

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

15-cv-623-jdp

Defendant.
Plaintiff Jessica R. Summerfield seeks judicial review of a final decision of the Acting
Commissioner of Social Security finding her not disabled within the meaning of the Social
Security Act. The Commissioner has moved to dismiss this case under Federal Rule of Civil
Procedure 12(b)(6) as time-barred because Summerfield filed her complaint outside of the
Social Security Act limitations period. Dkt. 11. Alternatively, the Commissioner requests
summary judgment under Rule 56(c). Summerfield does not deny that her request for review
was untimely, but she contends that the court should excuse her tardiness under the doctrine
of equitable tolling. The court agrees, and will deny the Commissioner’s motion.

ALLEGATIONS OF FACT
The court draws the following facts from Summerfield’s filings, accepting them as true
for purposes of reviewing the motion to dismiss. Bonte v. U.S. Bank, N.A., 624 F.3d 461, 463
(7th Cir. 2010).
Summerfield received an unfavorable decision from an administrative law judge (ALJ)
on February 3, 2014. Included with her copy of the decision, Summerfield received
instructions on how to seek review of that decision. Claimants may request review of an

Appeals Council decision within 60 days, whereas they have only 30 days to request review
of an ALJ decision. For Summerfield, that would have been March 5, 2014. Her lawyer failed
to follow those instructions and instead mistakenly relied on the procedures and longer
timeline for seeking review of an Appeals Council decision. Summerfield never requested an
extension of time, and she missed the March 5, 2014, deadline. Without a timely request for
review, the ALJ’s decision became final on April 5, 2014.
Three days later, on April 8, 2014, Summerfield requested Appeals Council review of
the ALJ’s decision, not realizing that the decision had become final. The Social Security Act
requires that complaints to the district court be filed within 60 days of the Commissioner’s
final decision. That would have been June 4, 2014. Understandably, Summerfield missed
that deadline, too, because she thought that her case was on appeal to the Appeals Council.
It was not until July 31, 2015, that Summerfield learned that the ALJ’s decision had
become the Commissioner’s final decision and that her appeal to the Appeals Council was
denied as untimely. Summerfield did not attempt to cure her untimeliness by going back to
the Commissioner to request an extension. Instead, she filed her complaint in this court on
September 29, 2015, more than a year after the 60-day deadline for seeking judicial review of
the Commissioner’s decision, but within 60 days of the Appeals Council’s decision.

ANALYSIS
The Commissioner contends that the court should decline to equitably toll
Summerfield’s deadline, and that the complaint should be dismissed as untimely.1 Equitable

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Recently, the Supreme Court decided a Federal Tort Claims Act case involving equitable
tolling. United States v. Kwai Fun Wong, 135 S. Ct. 1625 (2015). The Court held that to
forbid equitable tolling, Congress must make an affirmative indication “that it intends to

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tolling could excuse Summerfield’s failure to timely file her complaint if she were able to
show that: (1) she was pursuing her rights diligently; and (2) an extraordinary circumstance
beyond her control stood in her way. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005) (citing
Irwin v. Dep’t. of Veterans Affairs, 498 U.S. 89, 96 (1990)). However, “courts have typically
extended equitable relief only sparingly.” Irwin, 498 U.S. at 96. For example, equitable tolling
may be appropriate “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 induced or tricked by his adversary’s misconduct into allowing the filing deadline to
pass.” Id. But generally, “the principles of equitable tolling . . . do not extend to what is at
best a garden variety claim of excusable neglect.” Id.
Summerfield contends that the Commissioner’s failure to timely notify her of the
finality of the ALJ’s decision misled her and caused her own delayed complaint. But the
Commissioner did not act improperly or cause Summerfield’s mistake. The Commissioner
sent Summerfield and her lawyer clear instructions with the correct deadlines on February 3,
2014. The reason that Summerfield missed her deadlines was because her lawyer made a
mistake and relied on the wrong timeline.
However, the Commissioner’s delay of longer than a year in responding to
Summerfield’s request for Appeals Council review compounded the mistake. As a result, she
remained unaware of the mistake until long after the deadline. Had Summerfield received the
Appeals Council’s denial within two months of her request, she may still have had time to file

preclude equitable tolling in a suit against the Government.” Id. at 1631-32, 1638. The
Commissioner does not argue that equitable tolling is forbidden in social security cases; only
that it is not appropriate under the facts of Summerfield’s case.

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her complaint before the deadline. As soon as Summerfield actually learned that the ALJ’s
decision was final, she timely filed her complaint here.
Dismissal is an unduly harsh result for a garden-variety lawyer error compounded by
the Appeals Council’s slow decision. Accordingly, the court will excuse the error under the
doctrine of equitable tolling and deny the Commissioner’s motion.

ORDER
IT IS ORDERED that defendant Carolyn W. Colvin’s motion to dismiss, Dkt. 11, is
DENIED.
Entered April 29, 2016.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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