Opinion
Civil Action Number 3:00 CV 109
May 26, 2000
REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
This matter is before the Court pursuant to 42 U.S.C. § 405 (g) on Plaintiffs appeal of a final decision of the Commissioner of Social Security (Commissioner) that denied Plaintiff supplemental security income (SSI). The plaintiff failed to timely file an appeal of the final decision of the Commissioner within sixty days as required by 42 U.S.C. § 405 (g) and therefore the case should be dismissed.
Procedural History
The plaintiff, Almeda Booker, was notified that her claim for SSI was denied on January 30, 1998, following a hearing by an Administrative Law Judge (ALJ). (Olga C. Kelley Decl. at 3, attached to Def.'s Mot. to Dismiss). Ms. Booker timely requested a review of the decision by the Appeals Council which rendered its affirmance of the ALJ's decision on December 2, 1999. (Id. at 4). The Social Security Administration (SSA) field office sent, by regular mail addressed to Plaintiff at 1853 Featherwood Street, notice that the application was denied. Id. The notification thereby constitutes the final decision of the Commissioner. Id.
The Court notes that the address Plaintiff has provided to the Clerk in the instant action is 1104 North Second Street, Apartment A, Richmond, VA 23219.
On February 28, 2000, Plaintiff filed an appeal of the final decision of the Commissioner in this Court pursuant to 42 U.S.C. § 405 (g). Under 42 U.S.C. § 405 (g), Ms. Booker must have filed an appeal by February 7, 2000, in order to meet the requirement that an appeal be instituted within sixty days of the date of the mailing of the final decision of the Commissioner.
Question Presented
Is the Defendant Commissioner entitled to dismissal because the plaintiff failed to commence the instant action in the prescribed sixty-day time period?
Analysis
It is a statutory requirement and a well-settled principle that an appeal of the final decision of the Commissioner must be filed in the appropriate United States District Court within the time prescribed by law or by leave of court unless, in rare circumstances, a waiver of the period of limitation is deemed appropriate. See 42 U.S.C. § 405 (g);Bowen v. City of New York, 476 U.S. 467, 481 (1986) (holding that although the time limitation is necessary to effect speedy resolution of cases, equitable tolling of the time period is appropriate where "consistent with congressional intent and called for by the facts of the case"); Hyatt v. Heckler, 807 F.2d 376, 380 (4th Cir. 1986) (overruling pre-Bowen v. City of New York cases that the sixty-day time period is jurisdictional when circumstances require equitable tolling such as when claimants allowed the time period to expire when the Secretary engaged in secretive conduct that deprived them of rights under the law).
In this case, the plaintiff has not responded to the Defendant's motion to dismiss within the time period set forth by Local Rule. There is nothing on the record to suggest that there is justification for a tolling of the period of limitation. Since there is no information that would justify invoking the extraordinary act of tolling the period of limitation within which an SSI claimant must appeal a final decision of the Commissioner, this claim should be dismissed.
CONCLUSION
In light of the statutory requirement that a Plaintiff must institute a civil action in United States District Court within sixty days in order to appeal a final decision of the Commissioner, it is recommended that it is proper to dismiss this case.
NOTICE TO PARTIES
Failure to file written objections to the proposed findings, conclusions and recommendations of the magistrate judge contained in the foregoing report within ten (10) days after being served with a copy of this report shall bar you from attacking on appeal the findings and conclusions accepted and adopted by the District Judge except upon grounds of plain error.