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Pamela S. Cullins v. Michael J. Astrue

August 18, 2011

PAMELA S. CULLINS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Joe Billy McDADE United States Senior District Judge

E-FILED

Thursday, 18 August, 2011 04:31:34 PM

Clerk, U.S. District Court, ILCD

ORDER & OPINION

This is an action challenging the Social Security Administration's adverse determination with respect to Plaintiff's entitlement to benefits. Pending before the Court is Defendant's Motion to Dismiss (Doc. 11).

PROCEDURAL HISTORY

Plaintiff was found disabled and entitled to receive Disability Insurance Benefits under Title II of the Social Security Act ("the Act"), beginning January 15, 1998. (Doc. 11-1 at 3). Plaintiff's period of disability ceased in April 2004, because of her work activity. (Doc. 11-1 at 3). Subsequently, the Social Security Administration determined that Plaintiff owed the Agency for overpayment of benefits, and the Agency denied by letter her request to waive her repayment obligation. (Doc. 11-1 at 5).

Plaintiff requested a hearing regarding the denial of her waiver before an Administrative Law Judge ("ALJ"). By letter dated September 17, 2008, the ALJ dismissed Plaintiff's request for a hearing for failure to appear and absence of good cause. (Doc. 11-1 at 7-9). On June 19, 2009, the Appeals Council denied Plaintiff's request for review. (Doc. 11-1 at 11).

Meanwhile, Plaintiff filed subsequent applications for disability and, on October 23, 2008 the ALJ found that Plaintiff was disabled since May 1, 2007. (Doc. 11-1 at 21). Plaintiff amended her alleged onset of disability to May 1, 2007 because of her work activity. (Doc. 19). Plaintiff did not appeal this decision. (Doc. 11-1 at 3).

On May 27, 2010, Plaintiff filed the instant suit claiming that she was entitled to a keep her overpayment from 2004-2005 and, further, that she was entitled to benefits for the period 2005-2008.*fn1 Due to the nature of these claims, it appears that Plaintiff essentially wishes to contest the ALJ's dismissal of her waiver request.*fn2 On October 15, 2010, Defendant filed the instant Motion to Dismiss arguing that Plaintiff's claims are time-barred and that she failed to exhaust her administrative remedies.

ANALYSIS

i. Is Plaintiff's Suit Untimely?

Section 405(g) of Title 42 of the United States Code provides in pertinent part:

(g) 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 him of notice of such ...


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