The opinion of the court was delivered by: Donald G. Wilkerson United States Magistrate Judge
This case is before the Court pursuant to Local Rule 9.1, regarding the disposition of Social Security cases in the United States District Court for the Southern District of Illinois. On October 24, 2008, Plaintiff Melissa Bowlin ("Bowlin") filed this action pursuant to Section 205(g) of the Social Security Act, as amended (42 U.S.C. § 405(g)), to obtain judicial review of a final decision of the Commissioner of Social Security denying her applications for a period of disability, Disability Insurance Benefits and Supplemental Security Income under the Social Security Act ("The Act"), 42 U.S.C. §§ 416(I), 423, 1383(c) (Doc. 2).
Pending before the Court is a Motion to Dismiss filed by Michael Astrue, Commissioner of Social Security ("Commissioner") (Doc. 13), Bowlin's Response (Doc. 14), and Commissioner's Reply (Doc. 24). For the reasons stated below, Commissioner's Motion to Dismiss is GRANTED.
Bowlin applied for disability insurance benefits and supplemental security income on March 9, 2006 (Doc. 14). The Commissioner denied the claims initially on July 31, 2006, and upon reconsideration on October 27, 2006 (Doc. 13-1). Bowlin filed a timely written request for a hearing before an administrative law judge ("ALJ") on November 6, 2006. Id. The ALJ held the hearing on February 20, 2008. Id. The ALJ issued a written decision denying Bowlin's claim for benefits on March 27, 2008. Id. Bowlin's request for review by the Appeals Council was denied on August 13, 2008. Id. Bowlin commenced this action on October 24, 2008 (Doc. 2).
Judicial review of a final decision on disability claims arising under the Social Security Act is provided for and limited by 42 U.S.C. §405(g), which provides:
Any individual, after any final decision of the Commissioner of Social Security 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 [her] of notice of such decision or within such further time as the Commissioner of Social Security may allow. 42 U.S.C. §405(g). The Commissioner, through regulation, has further interpreted the sixty-day statute of limitations:
Any civil action ... must be instituted within 60 days after the Appeals Council's notice of denial of request for review of the presiding officer's decision or notice of the decision by the Appeals Council is received by the individual, institution, or agency, except that this time may be extended by the Appeals Council upon a showing of good cause. For purposes of this section, the date of receipt of notice of denial of request for review of the administrative law judge's decision or notice of the decision by the Appeals Council shall be presumed 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); see also Burns v. Heckler, 619 F.Supp. 355, 358-59 (N.D.Ill.1985). "[T]he 60-day requirement is not jurisdictional, but constitutes a period of limitations that may be tolled by the commissioner or the court if fairness demands." Sanchez ex rel. Sanchez v. Barnhart, No. 03-C-537-C, 2004 WL 1005589, at *2 (W.D.Wis. May 4, 2004); see also Sims v. Comm'r of Soc. Sec., No. 01 C 778, 2002 WL 31883061, at *4 (N.D. Ill. Aug.29, 2002) (stating that the sixty-day requirement is a statute of limitation, which is subject to waiver).
The issue before the Court is whether Bowlin filed this lawsuit in a timely manner consistent with the statute of limitations. Bowlin argues that the Commissioner provided improper notice of the date of the Commissioner's final decision (Doc. 14). Bowlin further asserts that her complaint was timely filed within sixty (60) days of the date of actual receipt by her attorney, or in the alternative, equitable tolling should apply. Id.
Bowlin first argues that the Commissioner's noticeto her attorney was defective. She argues that the notice sent to counsel was dated August 24, 2008. As evidence she points to the received stamp on the notice dated August 25, 2008. Bowlin acknowledges that the numeral she construed as a "2" in the notice is not clear. However, she contends that the Commissioner did not send her counsel an exact copy of the Notice (Doc. 14).
The Commissioner does not dispute that different letters were sent to Plaintiff and her counsel. Defendant states that the letters are computer generated. An original is mailed to the claimant, and if the claimant is represented, a copy is mailed annotated ...