United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
M. ROWLAND United States Magistrate Judge.
action was brought under 42 U.S.C. § 405(g) to review
the final decision of the Commissioner of Social Security
denying Plaintiff Alonzo James' claim for Disability
Insurance Benefits and Supplemental Security Income. The
parties have consented to the jurisdiction of the United
States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
Before Plaintiff filed his opening brief in the case,
Defendant filed the present motion to dismiss the complaint
as untimely. For the reasons that follow, Defendant's
motion to dismiss (Dkt. No. 15) is denied.
the Social Security Act, a party seeking judicial review of
an unfavorable final decision of the Commissioner of Social
Security may do so “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.” 42 U.S.C. §405(g);
see also 20 C.F.R. § 416.1481 (“[A
claimant] may file an action in a Federal district court
within 60 days after the date you receive notice of the
Appeals Council's action.”); 20 C.F.R. §
422.210(c) (“[T]he date of receipt of notice of denial
of request for review . . . shall be presumed to be 5 days
after the date of such notice, unless there is a reasonable
showing to the contrary.”).
60-day filing requirement in 42 U.S.C. § 405(g) is not a
jurisdictional limit, but rather a period of limitations
which, consistent with congressional purpose, may be
equitably tolled. Bowen v. New York, 476 U.S. 467,
474 (1986). The Bowen court noted that the
limitations period created by § 405(g) is part of a
statute that is “unusually protective” of
claimants, and that Congress has authorized the agency to
grant extensions of time for reasons of fairness such as
illness, accident, destruction of records, mistake, or a
claimant's misunderstanding of the appeals process.
Id. at 480, n. 12. Further, a court may toll the
limitations period in cases where “the equities in
favor of tolling the limitations period are ‘so great
that deference to the agency's judgment is
inappropriate.'” Id. at 480.
“Generally, a litigant seeking equitable tolling bears
the burden of establishing two elements: (1) that he has been
pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way.” Pace
v. DiGuglielmo, 125 S.Ct. 1807, 1814 (2005).
the Appeals Council Notice was dated May 9, 2017. (Dkt. 16 at
36-38). Plaintiff does not dispute that he received the
notice within five days of that date. Therefore, applying the
agency's five-day rule, he had until July 13, 2017, to
file a timely complaint. Plaintiff filed his complaint
seeking judicial review of the Commissioner's final
decision on July 17, 2017. (Dkt. 1). Defendant argues that
Plaintiff's action is time-barred as Plaintiff
“provided no good cause explanation for the late
filing.” (Dkt. 16 at 4).
response to the motion to dismiss, Plaintiff's counsel
submitted a signed affidavit by Plaintiff. In the affidavit,
Plaintiff asserts that he was unsure of the exact filing
deadline and contacted Social Security using the number
listed on the Appeals Council Notice in June 2017 and was
informed that the due date for the appeal was Monday July 17,
2017. (Dkt. 21-1). Relying on that information, he went to
file his complaint on July 11, 2017 and was told he needed to
return with additional copies of all of the documents.
Id. He then returned on July 17, 2017 and filed his
appeal with the clerk of the court. Id. Plaintiff
was unrepresented at the time he filed the appeal.
Court gives Plaintiff some leeway, as he was proceeding
pro se at the time of filing, and accepts his
statements in his sworn affidavit. Courts have found that
“fairness dictates that the limitations period be
equitably tolled” when a pro se claimant
“was diligently pursuing his rights, and relied on
incorrect information given to him by a court
employee.” Purchase v. Colvin, No.
15-CV-1075-JPG-CJP, 2016 WL 6963301, at *2 (S.D. Ill. Nov.
29, 2016); see also Bolden v. Chater, No. 94 C 7675,
1996 WL 374122, at *2 (N.D. Ill. June 28, 1996) (finding that
“misleading information given by the Social Security
office [to a pro se claimant] warrants equitable
tolling of the statute of limitations.”). Similar to
the pro se claimants in Purchase and
Bolden, here, Plaintiff attests that he relied upon
erroneous information from the clerk of the court and was
thus four days late in his filing.
citation to social security cases where a pro se
claimant was denied equitable tolling are inapposite. In
Nielsen and Sims, the claimants gave no
reasons for their late filing and were thus denied equitable
tolling. See Nielsen v. Astrue, 456 Fed. App'x
601 (7th Cir. 2012); Sims v. Comm'r of Soc.
Sec., No. 01 C 778, 2002 WL 31883061 (N.D. Ill. august
29, 2002). In Schoenrock, the court found that the
claimant's actions showed that he was not pursing his
rights diligently; and that the claimant proffered no good
cause reasons for his late filing (i.e. having car trouble
and being busy preparing to move). Schoenrock v.
Astrue, No. 09-cv-0565, 2010 WL 454768 (W.D. Wis. Feb.
into account his pro se status at the time of
filing, the Court finds that, similar to Purchase
and Bolden, Plaintiff has met his burden of showing
that he pursued his rights diligently and that some
extraordinary circumstance, i.e., relying upon inaccurate
information from a court employee, stood in his way. Under
these circumstances, the Court finds that Plaintiff's
brief filing delay is entitled to equitable tolling.
foregoing reasons, Defendant's Motion to Dismiss