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Hyppolite v. Berryhill

United States District Court, D. New Jersey

April 19, 2018

THORN W. HYPPOLITE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION & ORDER

          John Michael Vazquez U.S.D.J

         This 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.

         I. Background

         On May 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.

         On May 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.[1] 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.

Id.

         Taking 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.

         The 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 "expired." Id.

         II. Legal Standard and Analysis

         The 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.

         Section 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 ...

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