United States District Court, S.D. Ohio, Western Division, Dayton
H. Rice District Judge
REPORT AND RECOMMENDATION  THAT
DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A
CLAIM (DOC. 8) BE DENIED
Michael J. Newman United States Magistrate Judge
civil case is before the Court on the Commissioner's
motion to dismiss for failure to state a claim. Doc. 8.
Pro se Plaintiff filed a memorandum in opposition.
Doc. 9. The Commissioner did not file a reply memorandum, and
the time for doing so has expired.
filed for Supplemental Security Income benefits on September
11, 2013. Doc. 8-1 at PageID 61. On June 22, 2016, ALJ
Elizabeth A. Motta issued a decision finding Plaintiff not
disabled. Doc. 8-1 at PageID 85. On August 19, 2016,
Plaintiff requested Appeals Council review of the ALJ's
decision. Doc. 8-1 at PageID 76. On September 10, 2016, the
Appeals Council denied Plaintiff's request for review,
making the ALJ's non-disability finding the final
administrative decision of the Commissioner. Plaintiff then
filed this pro se appeal on November 18, 2016, when
he moved for leave to file his complaint in forma
pauperis (“IFP”). Doc. 1. Now, the
Commissioner moves to dismiss pro se Plaintiff's
complaint arguing that it was not timely filed. Doc. 8.
review of Social Security decisions is governed by 42 U.S.C.
§ 405(g), which provides that:
Any individual, after any final decision of the Commissioner
. . . made after a hearing to which he was a party . . . 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 . .
. may allow.
regulations define “mailing” as the date the
individual receives the Appeals Council's notice of
denial of a request for review. See 20 C.F.R. §
422.210(c). The date of receipt is presumed to be five days
after the date of such notice, unless there is a reasonable
showing to the contrary. See 20 C.F.R. §§
404.901, 422.210(c); see also Cook v. Comm'r of Soc.
Sec., 480 F.3d 432, 435-36 (6th Cir. 2007).
sixty day time limit for seeking judicial review of an
adverse determination by an ALJ -- as set forth in §
405(g) -- is not a jurisdictional bar but, rather, a statute
of limitations subject to equitable tolling. Cook,
480 F.3d at 435. The statute of limitations serves the dual
purpose of eliminating stale claims and providing “a
mechanism by which Congress was able to move cases to speedy
resolution in a bureaucracy that processes millions of claims
annually.” Bowen v. City of New York, 476 U.S.
467, 481 (1986). Courts strictly construe the statute of
limitations in Social Security appeals. See, e.g.,
Cook, 480 F.3d at 432 (affirming the dismissal of a
complaint filed one day late); see also Amadasu v.
Comm'r of Soc. Sec., No. 06-cv-584, 2009 WL 1542772,
at *4-7 (S.D. Ohio May 28, 2009) (dismissing complaint filed
three days late). This is true even when the plaintiff is
proceeding pro se and without the assistance of
counsel. See McCane v. Comm'r of Soc. Sec., No.
2:12-cv-67, 2012 WL 4088649, at *3 (S.D.
Sept. 17, 2012) (dismissing pro se plaintiff's
complaint for failure to comply with § 405(g)'s
filing deadline) Report and Recommendation adopted,
2012 WL 4920798 (S.D. Ohio Oct. 16, 2012).
the Appeals Council's notice is dated September 10, 2016.
Under the Commissioner's regulations, supra,
Plaintiff presumptively received that notice in the mail on
or before September 15, 2016. Assuming Plaintiff received the
notice by September 15, 2016, his appeal was due to be filed
on or before November 14, 2016. Again, Plaintiff did not
initiate this appeal until November 18, 2016, i.e.,
four days after expiration of the presumptive deadline for
filing an appeal. Doc. 1.
pro se Plaintiff presents evidence reasonably
rebutting -- and in fact contradicting -- the presumption
that he received the Appeals Council's notice on or
before September 15, 2015. In fact, pro se Plaintiff
presents a copy of the envelope in which the Appeals
Council's notice was contained. Doc. 9-5 at PageID 94.
That envelope is postmarked September 15, 2016. Id.
Therefore, since the letter was not postmarked until
September 15, 2015, Plaintiff obviously did not receive such
notice on or before that date. Instead, Plaintiff's
representation that he actually received the notice on
September 19, 2016 is reasonable.
the Court finds Plaintiff received the Appeals Council's
notice on September 19, 2016, the 60 day deadline for filing
an appeal in this Court was November 18, 2016. Because
Plaintiff initiated his appeal on November 18, 2016, it was
timely filed. Accordingly, the undersigned RECOMMENDS that
the Commissioner's motion to dismiss (doc. 8) be DENIED.