United States District Court, District of Columbia
DAMON M. JOHNSTON, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
RUDOLPH CONTRERAS United States District Judge
matter is before the Court on Defendant's Motion to
Dismiss Plaintiff's Complaint [ECF No. 5]. For the
reasons discussed below, the Court will grant defendant's
motion and dismiss this civil action.
plaintiff's complaint is brief, and it reads:
My name is Damon Johnston. I would like to appeal the case
for my disability. I still can't work & have
Documents from both of my Doctors. I need to see a judge.
at 1. The preceding events are summarized below:
On August 31, 2011, the [plaintiff] previously filed a Title
II application for a period of disability and disability
insurance benefits. The [plaintiff] also protectively filed a
Title XVI application for supplemental security income on
August 31, 2011. In both applications, the [plaintiff]
alleged disability beginning December 15, 2009. These claims
were denied initially on August 23, 2012, and upon
reconsideration on December 27, 2012. Thereafter, the
[plaintiff] filed a written request for hearing on
February 1, 2013 . . . . The [plaintiff]
appeared and testified at a hearing held on May 2, 2014 [at
which the plaintiff was represented by counsel.]
Brief in Support of Def.'s Mot. to Dismiss Pl.'s
Compl. [ECF No. 6] (“Def.'s Brief”), Decl. of
Roxie Rasey Nicoll [ECF No. 6-1] (“Nicoll
Decl.”), Ex. 1 (Decision) at 1.
July 9, 2014 [the] Administrative Law Judge issued a decision
denying the plaintiff's claim for benefits under Title II
and XVI [of the Social Security Act].” Nicoll Decl.
¶ 3(a). The Decision was mailed on that same date to the
plaintiff, whose address at that time was 10804 Slippery Elm
Court, Clinton, MD 20735. Id.; see id., Ex.
1 (Notice of Decision - Unfavorable dated June 9, 2014). The
notice informed the plaintiff of his right to appeal the
decision in writing within 60 days of the date he received
the notice. See id. ¶ 3(a).
the plaintiff requested review of [the Administrative Law
Judge's decision, and on] November 13, 2015, the Appeals
Council sent . . . notice of its action” to the
plaintiff whose address at that time was 111 Rhode Island
Avenue, N.E., Washington, DC 20002. Id. The Appeals
Council denied the plaintiff's request for review, and
informed the plaintiff of his “right to commence a
civil action [in federal district court] within  days
from the date of receipt” of its notice. Id.,
Ex. 2 (Notice of Appeals Council Action) at 2. According to
the defendant's declarant, the plaintiff did not request
an extension of the 60-day period to file a civil action.
See id. ¶ 3(b). The plaintiff filed this civil
action on March 14, 2016.
defendant moves to dismiss the complaint as untimely filed.
See generally Def.'s Brief at 2-4. She argues
that the plaintiff should have commenced this civil action by
January 18, 2016, and he failed to do so. See id. at
3. The plaintiff's opposition does not address the
defendant's legal argument. Rather, the plaintiff merely
asserts that he is “not able to work because of [his]
Disability.” Pl.'s Opp'n [ECF No. 8] at 1.
Among the plaintiff's exhibits are copies of medical
examination reports, which appear to have been prepared in
connection with an application for benefits through the
District of Columbia Department of Human Services' Income
Maintenance Administration. See generally id., Ex.
(Medical Examination Reports dated May 2, 2016, July 13,
2015, December 15, 2014, November 4, 2014, and August 30,
2013). “Any individual, after any final decision of the
Commissioner of Social Security made after a hearing . . .
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.” 42 U.S.C.
§ 405(g). “[T]he date of receipt of . . . 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(c). An individual may request and the Appeals Council
may extend the time for filing a civil action “upon a
showing of good cause.” Id.
defendant's declarant explains that, “if the
Appeals Council denies a timely request for review of a
hearing decision, that hearing decision becomes the
‘final decision' within the meaning of, and subject
to, the provisions for judicial review” set forth in 42
U.S.C. § 405(g). Nicoll Decl. ¶ 2. Therefore, in
this case, the final decision at issue is the Appeals
Council's November 13, 2015 notice denying the
plaintiff's request for review of the Administrative Law
Judge's decision. Absent any showing by the plaintiff
that he did not receive the Appeals Council's November
13, 2015 notice within five days, and absent any indication
that the plaintiff sought or obtained an extension of time,
see Nicoll Decl. ¶ 3(b), the plaintiff should
have filed this civil action by January 19,
2016. Instead, he filed this civil action on
March 14, 2016, nearly two months after the filing deadline