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Purchase v. Colvin

United States District Court, S.D. Illinois

November 29, 2016

KENT PURCHASE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          J. PHIL GILBERT DISTRICT JUDGE.

         Before the Court is Defendant's Motion to Dismiss with Prejudice. (Doc. 18). The pro se plaintiff filed a response. (Doc. 21).

         Plaintiff 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.

         Procedural History

         The 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 information.

         An ALJ 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).

         The 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).

         Applicable Law

         42 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.

         Although §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. §422.201(c).

         The 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 (1986).

         Analysis

         The 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 ...


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