United States District Court, E.D. Michigan, Southern Division
REPORT AND RECOMMENDATION
R. STEVEN WHALEN, Magistrate Judge.
This is a Social Security Disability appeal brought under 42 U.S.C. § 405(g). Before the Court is the Defendant's Motion to Dismiss [Doc. #5], which has been referred for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons discussed, below, I recommend that the motion be GRANTED and that the complaint be DISMISSED.
The procedural history of this case is recounted in the declaration of Patrick J. Herbst, Chief of Court Case Preparation and Review Branch 3 of the Office of Appellate Operations, Office of Disability Adjudication and Review, Social Security Administration, appended to Defendant's motion to dismiss. At ¶ 3 of his declaration, Mr. Herbst states that his review of the official file of Plaintiff Cherlynn Marie MacDonald shows the following:
(a) On November 8, 2012, an Administrative Law Judge ("ALJ") issued a partially favorable decision on Plaintiff's application for Disability Insurance Benefits Supplemental Security Income under Titles II and XVI, respectively, of the Social Security Act. The ALJ found the Plaintiff disabled from May 20, 2009 through November 1, 2010, but not disabled as of November 2, 2010. The ALJ's Notice of Favorable Decision also stated that the Appeals Council may decide to review the decision on its own.
(b) On January 7, 2013, the Appeals Council issued a notice of its intent to review the ALJ's decision. The Appeals Council's notice stated, "We plan to limit the period at issue to the period from February 16, 2011 through November 8, 2012, the date of the hearing decision on your current claims, and issue an unfavorable decision finding you not disabled during that period." Herbst Declaration, Exhibit 2, p. 2.
(c) On November 15, 2013, the Appeals Council issued a final, unfavorable decision. The Notice of Decision informed Plaintiff of her right to commence a civil action within 60 days of when she received it. The Notice and the decision were mailed to her at her address in Rhodes, Michigan, and a copy was also mailed to her representative, Aaron Lemmens, in Saginaw, Michigan.
Plaintiff filed her complaint in this Court on July 9, 2014.
In her response [Doc. #7], Plaintiff concedes that she filed her complaint beyond the 60-day limitations period, but by way of justification states that "the alleged failure to file within 60 days of the final decision was due to the Plaintiff never receiving the final decision of the Appeals Council." Plaintiff's Response, ¶ 10. Plaintiff states that she "still has not received that final decision from the Appeals Council." Id. ¶ 9.
II. LEGAL PRINCIPLES
42 U.S.C. §405(g) provides that:
"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. " (Emphasis added).
Section 405(g) is generally considered the sole avenue for judicial review under the Act. 42 U.S.C. §405(h); Heckler v. Ringer, 466 U.S. 602, 617, 104 S.Ct. 2013, 80 L.Ed.2d 622 (1984). Therefore, a plaintiff must file his or her complaint within the 60-day period set forth in the statute.
Together, 20 C.F.R. §§ 404.901 and 422.210(c) provide that the date of mailing, from which the 60 days starts to run, is five days from the date of the notice, which is the presumptive date ...