Ioulia Kourtis, Claimant v. Andrew Saul, Commissioner, Social Security Administration, Defendant

2019 DNH 206

• Court: District Court, D. New Hampshire
• Decided: August 5, 2018
• Docket: 18-cv-926-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Ioulia Kourtis, Claimant Case No. 18-cv-926-SM v. Opinion No. 2019 DNH 206

Andrew Saul, Commissioner, Social Security Administration, Defendant

O R D E R

Pursuant 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 motion.

Standard of Review

When 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).

Background

Claimant 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.

Claimant 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.

2 Discussion

Pursuant 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)).

Claimant 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

3 on it unless you show us that you did not receive it within the 5-day period.

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.

As 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 those circumstances, the

Commissioner’s motion to dismiss is necessarily granted.

Conclusion

For the foregoing reasons, as well as those set forth in

the Commissioner’s legal memorandum, the Commissioner’s motion

to dismiss (document no. 7) is granted. The Clerk of the Court

shall enter judgment in accordance with this order and close the

case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

December 9, 2019

cc: All counsel of record