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Steven Todd Tolen v. Michael J. Astrue

December 14, 2012

STEVEN TODD TOLEN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge:

E-FILED

Friday, 14 December, 2012 02:11:00 PM

Clerk, U.S. District Court, ILCD

OPINION

This cause is before the Court on the Motion to Dismiss or, Alternatively, Motion for Summary Judgment (d/e 7) filed by Defendant Michael J. Astrue, arguing that the Complaint is untimely. Because the statute of limitations is an affirmative defense and Defendant has presented evidence outside the pleadings, the Court will address only the summary judgment portion of the Motion. For the reasons that follow, the Motion for Summary Judgment is GRANTED.

I. BACKGROUND

On June 6, 2012, Plaintiff, Steven Todd Tolen, represented by counsel, filed a Complaint seeking judicial review of the final decision of the Commissioner of Social Security denying his application for Social Security Disability and Supplemental Security Income Disability benefits. See d/e 1 (seeking review pursuant to 42 U.S.C. § 405(g) (governing disability insurance benefit claims) and 42 U.S.C. § 1383(c)(3) (governing supplemental security income claims)). The Complaint alleges that the action was commenced "within the appropriate time period set forth in the Action of Appeals Council on Request for Review dated March 28, 2012." See Compl. ¶ 3 (d/e 1).

On October 25, 2012, Defendant filed the Motion at issue herein. Defendant asserts that Plaintiff's Complaint is time-barred because Plaintiff filed the Complaint outside of the 60-day limitations period provided in the Social Security Act. Defendant supported the Motion with the Declaration of Roger Weigel, Chief of Court Case Preparation and Review Branch 1 of the Office of Appellate Operations, Office of Disability Adjudication and Review, Social Security Administration, and the exhibits attached to the Declaration.

In the Declaration, Weigel states that he is responsible for processing claims under Title XVI of the Social Security Act when a civil action has been filed in the State of Illinois. Weigel Decl. ¶ 3. Information available to him disclosed the following. Weigel Decl. ¶ 3.

On January 18, 2011, an administrative law judge (ALJ) issued a decision denying Plaintiff's claim for benefits. Weigel Decl. ¶ 3(a); ALJ Decision (attached as Exhibit 1 of the Declaration) (d/e 7-2, pp. 9-16). By Notice of Decision dated January 18, 2011, Plaintiff was informed of the unfavorable decision. Weigel Decl. ¶ 3(a); Notice of Decision (attached as Exhibit 1 to the Declaration) (d/e 7-2, pp. 6-8).

Thereafter, Plaintiff requested review of the decision. See Weigel Decl. ¶ 3(a). On March 28, 2012, the Appeals Council issued a Notice of Appeals Council Action (Notice) denying Plaintiff's request for review of the ALJ's hearing decision. Weigel Decl. ¶ 3(a); Notice (attached as Exhibit 2 of the Weigel Declaration) (d/e 7-2, pp. 20-22). The Notice was sent to Plaintiff and his attorney (the same attorney in the case sub judice). Weigel Decl. ¶ 3(a); Notice (d/e 7-2, p. 22). The Notice provides:

Time to File Civil Action

* You have 60 days to file a civil action (ask for court review).

* The 60 days start the day after you receive this letter. We assume you received this letter 5 days after the date on it unless you show us that you did ...


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