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Hill v. Social Security Administration

United States District Court, E.D. Louisiana

November 5, 2018

JOYCE HILL
v.
SOCIAL SECURITY ADMINISTRATION

         SECTION "A" (3)

          REPORT AND RECOMMENDATION

          DANIEL E. KNOWLES, III, UNITED STATES MAGISTRATE JUDGE.

         Before the Court is Defendant's Motion to Dismiss. [Doc. #11]. Plaintiff has filed no opposition to the motion in accordance with the local rules of this Court. For the following reasons, IT IS RECOMMENDED that the Commissioner's motion to dismiss be GRANTED.

         I. Background

         Plaintiff filed an application for disability insurance benefits, which was denied at the initial and reconsideration level. An Administrative Law Judge (“ALJ”) then denied plaintiff's application on April 3, 2017. [Doc. #11-2 at pp. 8-24]. On November 13, 2017, the Appeals Council denied plaintiff's request for review, which rendered the ALJ's decision the “final decision” of the Commissioner, giving rise to a 60-day deadline in which to seek judicial review. [Id. at pp. 5-7]. Plaintiff filed the lawsuit action on January 19, 2018, 67 days after the Appeals Council's decision.

         II. Law and Analysis

         A. The 60-Day Deadline

         It is well-settled law that “[t]he United States, as sovereign, ‘is immune from suit save as it consents to be sued … and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.'” Lehman v. Nakshian, 453 U.S. 156, 160 (1981) (quoting United States v. Testan, 424 U.S. 392, 399 (1976) and United States v. Sherwood, 312 U.S. 584, 586-87 (1941)); see also United States v. Mitchell, 445 U.S. 535, 538 (1980); Smith v. Booth, 823 F.2d 94, 96 (5th Cir.1987). Congress may prescribe the procedures and conditions under which judicial review of administrative orders may be obtained. Tacoma v. Taxpayers of Tacoma, 357 U.S. 320, 336 (1958). Judicial review of final decisions on claims arising under Title XVI of the Social Security Act is provided for, and limited by, Sections 205(g) and (h) of said Act, 42 U.S.C. §§ 405(g), (h). The remedy provided by section 205(g) is exclusive. The relevant provisions of Sections 205(g) and (h) read as follows:

(g) Any individual, after any final decision of the Commissioner 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 may allow . . .
(h) The findings and decision of the Commissioner after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Commissioner shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No. action against the United States, the Commissioner, or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter.

48 U.S.C. §§205(g), (h) (emphasis added). Accordingly, the only civil action permitted on any claim arising under Title II or Title XVI of the Social Security Act is an action to review the “final decision of the Commissioner made after a hearing” and such action must be “commenced within sixty days after the mailing to [the party bringing the action] of notice of such decision or within such further time as the Commissioner may allow." Id.

         The Commissioner, by regulations published December 9, 1976, in the Federal Register, 41 F.R. 53792, 20 C.F.R. § 422.210(c), has interpreted “mailing” as the date of receipt by the individual of the Appeals Council's notice of denial of a request for review or of the Appeals Council's decision. See 20 C.F.R. § 404.981. There is a presumption that the claimant receives the notice five days after the date on the notice, unless the claimant makes a reasonable showing to the contrary to the Appeals Council. 20 C.F.R. §§ 404.901, 422.210(c). Here, and because plaintiff has filed no opposition to defendant's motion, she has not made any showing to the Appeals Council that this presumption should not apply in this case. Moreover, plaintiff never requested an extension of time in which to file her complaint.

         The 60-day statute of limitations period provided by Congress in section 205(g) of the Social Security Act serves “to move millions of cases to speedy resolution in a bureaucracy that processes millions of cases annually.” Bowen v. City of New York, 476 U.S. 467, 481 (1986). The Fifth Circuit, as well as other circuits, have repeatedly upheld the sixty-day time limitation. See Flores v. Sullivan, 945 F.2d 109, 111-13 (5th Cir. 1991); Barrs v. Sullivan, 906 F.2d 120, 122 (5th Cir. 1990); McCall v. Bowen, 832 F.2d 862, 864 (5th Cir. 1987); Thibodeaux ex rel. Thibodeaux v. Bowen, 819 F.2d 76, 79 (5th Cir. 1987) (per curiam). Here, plaintiff filed her complaint 67 days after the Appeals Council's November 13, 2017 denial. Even accounting for the five-day presumption, which essentially gives a claimant 65 days in which to challenge the Commissioner's final decision denying benefits, plaintiff failed to timely file her complaint. Thus, plaintiff's complaint is simply untimely.

         B. ...


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