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Hargis v. Berryhill

United States District Court, M.D. Tennessee, Northeastern Division

October 6, 2017

JONATHAN J. HARGIS
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security

          The Honorable Waverly D. Crenshaw, Chief District Judge

          REPORT AND RECOMMENDATION

          BARBARA D. HOLMES, UNITED STATES MAGISTRATE JUDGE

         Currently pending is Defendant's motion to dismiss for failure to file a timely claim (Docket Entry No. 10).[1] Plaintiff has filed a response (DE 13), to which Defendant filed a subsequent reply. DE 14. For the reasons that follow, the undersigned Magistrate Judge respectfully, if somewhat regrettably, recommends that Defendant's motion be GRANTED.

         Plaintiff filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain judicial review of the final decision of the Social Security Administration (“Commissioner”) denying Plaintiff's application for benefits as provided under Title XVI of the Social Security Act. DE 1 at 1. On March 10, 2017, the Appeals Council denied Plaintiff's request for review of the Administrative Law Judge's unfavorable decision. DE 12-2 at 2. In order to have timely appealed this decision, the relevant statute states that Plaintiff must have filed his complaint in this Court “within sixty days after the mailing to him of notice” of the final decision on his claim. 42 U.S.C. § 405(g). The Commissioner of Social Security has interpreted “mailing” to mean the date a claimant receives the Appeals Council's notice of denial of request for review of the ALJ's decision. See 20 C.F.R. § 404.981. The date of receipt of this final notice is presumed to be five days after the date listed on the notice, unless there is a reasonable showing to the contrary. See 20 C.F.R. § 404.901 (“Date you receive notice means 5 days after the date on the notice, unless you show us that you did not receive it within the 5-day period.”); 422.210(c) (“[T]he date of receipt of notice of denial of request for review of the presiding officer's decision or notice of the decision by the Appeals Council shall be presumed to be 5 days after the date of such notice, unless there is a reasonable showing to the contrary.”).

         It is undisputed that the notice of the Appeals Council's decision in Plaintiff's case was dated March 10, 2017. DE 12-2 at 2. Plaintiff is therefore presumed to have received this notice five days later, on March 15, 2017, and the 60-day limitations period would run from that date, resulting in a May 14, 2017 deadline for timely filing of a complaint in this court. Because May 14, 2017 fell on a Sunday, however, the deadline instead became the next day, Monday, May 15, 2017. See Fed. R. Civ. P. 6(a)(1)(C) (noting that for any calculation of a time period under the Federal Rules of Civil Procedure, if the last day of that period “is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday”). Accordingly, Defendant argues that Plaintiff's filing on May 17, 2017 is untimely and warrants dismissal for lack of subject matter jurisdiction.

         Plaintiff does not dispute that he received the notice from the Appeals Council by or on March 15, 2017, nor does he argue that his complaint was timely filed. He instead states opaquely that “it is not possible to tell when the Complaint was filed electronically, only that the Clerk processed it that date.” DE 13 at 1.[2] Such misdirection has not gone unnoticed by Defendant, who correctly notes that this statement provides no indication that Plaintiff filed his complaint by the May 15, 2017 deadline.

         Nevertheless, Plaintiff relies on the doctrine of equitable tolling to argue that his untimeliness represents “excusable neglect” that should not result in dismissal of this action. DE 13 at 1. In considering the appropriateness of tolling the statute of limitations in Social Security appeals, the Court is directed to examine five considerations:

(1) the petitioner's lack of [actual] notice of the filing requirement; (2) the petitioner's lack of constructive knowledge of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to the respondent; and (5) the petitioner's reasonableness in remaining ignorant of the legal requirement for filing his claim.

Cook v. Comm'r of Soc. Sec., 480 F.3d 432, 437 (6th Cir. 2007) (citing Dunlap v. U.S., 250 F.3d 1001, 1008 (6th Cir. 2001)). Here, Plaintiff does not contend that he lacked actual or constructive notice of the filing requirements. Indeed, he makes no argument regarding his receipt of the Appeal Council's decision to address the first two factors.

         With respect to the third factor, involving “diligence in pursuing one's rights, ” the Court notes that the notice provided by the Appeals Council contains the following excerpt:

If you cannot file for court review within 60 days, you may ask the Appeals Council to extend your time to file. You must have a good reason for waiting more than 60 days to ask for court review. You must make the request in writing and give your reason(s) in the request.

DE 12-2 at 4. Plaintiff does not assert, nor has he provided any evidence, that he took any such steps to request additional time in the instant matter.

         Rather, Plaintiff primarily relies on two arguments to support his request for equitable tolling. First, he argues that there is an “absence of prejudice” to Defendant, the fourth factor for consideration. While Plaintiff may be correct that, in this particular case Defendant will not suffer any great prejudice from Plaintiff's few days of tardiness, the Sixth Circuit has held that strict adherence to filing requirements is necessary in light of the volume of Social Security applications filed annually.

Although allowing [the claimant] to file his complaint one day late likely would create little prejudice to the Commissioner in this particular case, we are mindful of the fact that there are millions of applicants for Social Security benefits each year, and that the ...

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