United States District Court, D. New Hampshire
J. MCAULIFFE UNITED STATES DISTRICT JUDGE
to 42 U.S.C. § 405(g), claimant, Ioulia Kourtis, seeks
judicial review of denial of her claim for disability
insurance benefits. The Commissioner of the Social Security
Administration has moved to dismiss the claimant's
complaint as untimely. Fed. R. of Civil Procedure 12(b)(6).
Claimant has not filed any response to the Commissioner's
ruling on a motion to dismiss under Fed.R.Civ.P. 12(b)(6),
the court must “accept as true all well-pleaded facts
set out in the complaint and indulge all reasonable
inferences in favor of the pleader.” SEC v.
Tambone, 597 F.3d 436, 441 (1st Cir. 2010). Although the
complaint need only contain “a short and plain
statement of the claim showing that the pleader is entitled
to relief, ” Fed.R.Civ.P. 8(a)(2), it must allege each
of the essential elements of a viable cause of action and
“contain sufficient factual matter, accepted as true,
to state a claim to relief that is plausible on its face,
” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(citation and internal punctuation omitted).
filed an application for disability insurance benefits on
June 24, 2016. That application was denied on August 16,
2017, and claimant requested a hearing before an
Administrative Law Judge (“ALJ”). On November 28,
2017, claimant, her attorney, an impartial medical expert,
and an impartial vocational expert appeared before an ALJ,
who considered claimant's application de novo. On
December 26, 2017, the ALJ issued a written decision,
concluding that claimant was not disabled, as that term is
defined in the Act, through the date of the decision.
then requested review by the Appeals Council. On July 31,
2018, the Appeals Council denied claimant's request for
review, finding no reason to review the ALJ's decision.
Accordingly, the ALJ's denial of claimant's
application for benefits became the final decision of the
Commissioner, subject to judicial review. On October 10,
2018, claimant filed an action in this court.
to 42 U.S.C. § 405(g), a claimant may obtain review of a
final decision of the Commissioner “by a civil action
commenced within sixty days after the mailing to [her] of
notice of such decision or within such further time as the
Commissioner of Social Security may allow.” The
applicable regulations provide that claimant “is
presumed to have received such notice within ‘[[five]
days after the date of such notice, unless there is a
reasonable showing to the contrary.'” Bean v.
Colvin, No. 2:16-CV-00174-JDL, 2016 WL 6684201, at *1
(D. Me. Nov. 14, 2016), rept. & recommendation
adopted, No. 2:16-CV-00174-JDL, 2016 WL 7335589 (D. Me.
Dec. 16, 2016) (quoting 20 C.F.R. § 422.210(c)).
“Accordingly, absent an extension by the Appeals
Council predicated ‘upon a showing of good cause,'
a claimant has 65 days from the date of the
commissioner's final decision to commence a timely action
for review of that decision.” Id. (quoting 20
C.F.R. § 422.210(c)).
received notice of the deadline by the July 31, 2018, Notice
of Appeals Council Action. That Notice informed claimant of
the right to judicial review, and that any request for such
review must be filed within 60 days after receipt of the
Notice. The Notice further stated:
The 60 days start the day you receive this letter. We assume
you received this letter 5 days after the date on it unless
you show us that you did not receive it within the 5-day
Admin. Rec. at 2. Accordingly, claimant is presumed to have
received the Notice on August 5, 2018, and was required to
commence a civil action by October 2, 2018. Instead, claimant
filed six days later, on October 10, 2018.
previously mentioned, claimant has not filed any response to
the Commissioner's motion to dismiss. There is nothing in
the record that suggests that she did not receive the Notice,
nor is any other explanation or justification for her late
filing apparent. Given ...