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Petrey v. Colvin

United States District Court, D. Kansas

July 29, 2014

BRENDA T. PETREY, o/b/o BRIAN PETREY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

SAM A. CROW, District Judge.

This is an action seeking review of the final decision of the Commissioner of Social Security that plaintiff was not disabled (Doc. 1). Defendant filed a motion to dismiss for failure to state a claim upon which relief can be granted (Doc. 3). Plaintiff filed a response brief on July 3, 2014 (Doc. 13), and a reply brief was filed on July 17, 2014 (Doc. 14). Defendant seeks to dismiss the complaint because it was not filed within 60 days from the date of receipt of the notice of the Appeals Council action (Doc. 3 at 2).

I. Was the complaint timely filed?

42 U.S.C. § 405(g) provides that a party may obtain judicial review in federal district court of any "final decision" of the Commissioner after a hearing. The civil action seeking judicial review must be filed within sixty (60) days after the mailing to the party of such decision or within such further time as the Commissioner may allow. The term "final decision" is left undefined by the Social Security Act and its meaning is to be fleshed out by the Commissioner's regulations. Weinberger v. Salfi , 422 U.S. 749, 766, 95 S.Ct. 2457, 2467 (1975).

The regulation concerning judicial review is as follows:

(a) General. A claimant may obtain judicial review of a decision by an administrative law judge if the Appeals Council has denied the claimant's request for review, or of a decision by the Appeals Council when that is the final decision of the Commissioner....
(c) Time for instituting civil action. Any civil action described in paragraph (a) of this section must be instituted within 60 days after the Appeals Council's notice of denial of request for review of the presiding officer's decision or notice of the decision by the Appeals Council is received by the individual, institution, or agency, except that this time may be extended by the Appeals Council upon a showing of good cause. For purposes of this section, the date of receipt of notice of denial of request for review of the administrative law judge'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.

20 C.F.R. § 422.210(a, c, emphasis added). Plaintiff can request an extension of time to file her action in federal district court. 20 C.F.R. §§ 404.982, 416.1482.

It is undisputed that the notice of the Appeals Council action is dated October 17, 2013 (Doc. 3-1 at 21). Plaintiff filed her complaint on December 25, 2013 (Doc. 1). The regulation cited above states that the civil action must be instituted within 60 days after the Appeals Council's notice of denial of the request for review is received by the claimant. The regulation further establishes a rebuttable presumption that receipt of notice occurs within 5 days after the date of such notice unless the plaintiff makes a reasonable showing to the contrary. Leslie v. Bowen , 695 F.Supp. 504, 505 (D. Kan. 1988).

Allowing 5 days for receipt of the notice, the 65th day after October 17, 2013 would be December 21, 2013. However, December 21, 2013 fell on a Saturday. Therefore, plaintiff would have had until Monday, December 23, 2013 to file her complaint, Fed.R.Civ.P. 6(a)(1)(C), unless plaintiff is able to rebut the presumption that receipt of notice occurred within 5 days after the date of such notice.[1]

Plaintiff's counsel presented an affidavit signed by attorney Gladys Hoefer stating that she received the attached Notice of Appeals Council action (dated October 17, 2013) on October 25, 2013. She further asserts that the postmark on the envelope containing the above notice was October 22, 2013, and that Ms. Hoefer, as a matter of normal office practice, noted the date on Exhibit B. Ms. Hoefer also stated that she noted on Exhibit B the date of receipt, October 25, 2013 on the bottom on the Notice of Appeals Council action (Doc. 13-2). Exhibit B shows a handwritten notation "p/m 10-22-13" and also on the bottom is a handwritten notation "rec'd 10-25/13" (Doc. 13-1 at 1). Defendant also filed a declaration under oath from an agency official stating that the Notice of Appeals Council Action was mailed to plaintiff on October 17, 2013 (Doc. 3-1 at 3).

The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief can be granted. Miller v. Glanz , 948 F.2d 1562, 1565 (10th Cir. 1991). The court accepts all well-pled factual allegations as true and views those allegations in the light most favorable to the nonmoving party. United States v. Smith , 561 F.3d 1090, 1098 (10th Cir. 2009). The court will not dismiss a complaint unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief. Currier v. Doran , 242 F.3d 905, 917 (10th Cir. 2001). However, Fed.R.Civ.P. 12(d) provides:

Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.

As noted above, in addition to plaintiff's complaint, the parties have presented additional evidence, including affidavits and declarations under oath. For this reason the parties are hereby notified that the court will treat defendant's motion ...


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