United States District Court, D. New Jersey
THORN W. HYPPOLITE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
OPINION & ORDER
Michael Vazquez U.S.D.J
matter comes before the Court on the motion of Defendant, the
Acting Commissioner of Social Security, to dismiss the
Complaint of Plaintiff Thorn W. Hyppolite for failure to
timely file this action pursuant to Section 205(g) of the
Social Security Act, 42 U.S.C. § 405(g). D.E. 9.
Plaintiff, who is proceeding pro se, filed a letter
in opposition. D.E 11. The motion was decided without oral
argument pursuant to Federal Rule of Civil Procedure 78 and
Local Civil Rule 78.1. The Court has considered the
parties' submissions and grants Defendant's motion to
dismiss with prejudice.
28, 2013, Plaintiff filed an application for disability
insurance benefits and supplemental security income. D.E.
10-1 at 5. The Commissioner denied the application at the
initial level of administrative review and on
reconsideration. Id. at 19, 28. Plaintiff then
requested a hearing before an administrative law judge
("ALJ"), id. at 35, and the ALJ held a
hearing on July 31, 2015, id. at 40. In a December
23, 2015 opinion, the ALJ determined that Plaintiff was not
disabled. Id. at 40. In response, Plaintiff sought
review before the Appeals Council. Id. at 57.
22, 2017, the Appeals Council denied Plaintiffs request to
review the ALJ's decision. Id. at 57. The
Appeals Council mailed its decision to Plaintiff at his home
address and also copied Plaintiffs counsel. Id. at
57, 60. The Appeals Council further advised Plaintiff that he
could seek additional review by filing a complaint in the
United States District Court, but warned Plaintiff that he
had "60 days to file a civil action (as for court
review)." Id. at 58, 59. The Appeals Council
additionally apprised Plaintiff that "[t]he 60 days
start the day after 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
period." Id. at 59. The Appeals Council also
notified Plaintiff as follows:
If you cannot file for court review within 60 days, you may
ask the Appeals Counsel to extend your time to file. You must
have a good reason for waiting more than 60 days to ask for
court review. You must make the request in writing and give
your reasons in the request.
the five-day presumption into account, Plaintiff had until
July 26, 2015 to file his complaint with this Court.
Plaintiff, however, filed his Complaint on October 6, 2017.
D.E. 1. At the same time, Plaintiff sought to proceed in
forma pauperis, which the Court granted. D.E. 2.
Commissioner now moves for dismissal due to the late filing.
In response, Plaintiff indicates that after he was
unsuccessful before the Appeal Council, he was depressed and
he "did not want to do anything"; his attorney also
"dropped" him as a client. D.E. 11 at 1. Plaintiff
did not think that he could file an appeal without an
attorney, which he could not afford. Id. However, in
"August or September" Plaintiff called "SSA,
" and a "clerk" informed him that he could
still file a complaint even though the time to do so had
Legal Standard and Analysis
Court has jurisdiction to review claims arising under the
Social Security Act as provided in 42 U.S.C. §§
405(g) and (h). Section 405(h) states as follows:
No findings of fact or decision of the Commissioner of Social
Security shall be reviewed by any person, tribunal, or
governmental agency except as herein provided. No action
against the United States, the Commissioner of Social
Security or any officer or employee thereof shall be brought
under section 1331 or 1346 of Title 28 to recover on any
claim arising under this subchapter.
405(g) in turn provides, in relevant part:
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 ...