United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE.
the Court is Defendant's Motion to Dismiss with
Prejudice. (Doc. 18). The pro se plaintiff filed a
response. (Doc. 21).
applied for social security disability benefits pursuant to
42 U.S.C. §423. After entry of a final order denying his
application, he filed suit in federal court seeking judicial
review pursuant to 42 U.S.C. §405(g). Defendant argues
that this action must be dismissed because plaintiff filed
suit one day late.
transcript of administrative proceedings has not been filed
yet, so the full procedural history is not available to the
Court. However, documents attached to defendant's
memorandum in support (Doc. 19) provide sufficient
denied plaintiff's application for benefits in a written
decision dated March 3, 2014. (Doc. 19, Ex. 1, pp. 6-19).
Plaintiff requested review by the Appeals Council. Review was
denied in a letter dated July 23, 2015. (Doc. 19, Ex. 1, pp.
17-19). That letter informed the plaintiff that he had sixty
days in which to file a civil action, and that the sixty-day
period started the day after he received the July 23, 2015,
letter. Furthermore, it stated that the agency would assume
that plaintiff “received this letter 5 days after the
date on it unless you show us that you did not receive it
within the 5-day period.” (Doc. 19, Ex. 1, p. 18).
letter also informed plaintiff that he could ask the Appeals
Council for more time to file suit. (Doc. 19, Ex. 1, p. 19).
An agency employee filed a Declaration summarizing her review
of the claim file on plaintiff's application. She stated
that she was not aware of any request for extension filed by
plaintiff. (Doc. 19, Ex. 1, p. 3). Plaintiff's complaint
was filed on September 29, 2015. (Doc. 1).
U.S.C. §405(g) 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 him of notice of such
decision or within such further time as the Commissioner of
Social Security may allow.
§405(g) refers to “sixty days after the
mailing” of the notice of denial, the agency's
interpretation is that the sixty-day period begins to run
upon receipt of the notice of denial, and receipt is presumed
to be five days after the date on the notice. 20 C.F.R.
sixty-day period set by §405(g) is not jurisdictional
and, in a proper case, is subject to equitable tolling.
Bowen v. City of New York, 106 S.Ct. 2022, 2029
Appeals Council notice was dated July 23, 2015. Plaintiff
does not dispute that he received the notice within five days
of that date. Therefore, applying the agency's five-day
rule, he ...