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Johnston v. Berryhill

United States District Court, N.D. West Virginia, Clarksburg

January 3, 2018

ROBERT THOMAS JOHNSTON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          KEELEY JUDGE

          REPORT AND RECOMMENDATION

          ROBERT W.TRUMBLE UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         This case arises from the denial of Plaintiff Robert Thomas Johnston's (“Plaintiff”) Title II application for disability and disability insurance benefits (“DIB”). After Plaintiff's application proceeded through the administrative process, a United States Administrative Law Judge (“the ALJ”) concluded that Plaintiff was disabled but was subsequently capable of working because of an improved medical condition. Although Plaintiff seeks judicial review of the ALJ's decision, Defendant Nancy A. Berryhill (“Defendant” or “the Commissioner”) moves to dismiss Plaintiff's Complaint as untimely. Because (1) Plaintiff did not file his Complaint within sixty days of receiving the Notice of Appeals Council Action denying his request to review the ALJ's decision and (2) no good cause exists to toll the sixty-day statute of limitations, the undersigned recommends that Plaintiff's Motion for Summary Judgment be denied and Defendant's Motion to Dismiss be granted.

         II. PROCEDURAL HISTORY

         On November 7, 2013, Plaintiff filed a claim for DIB, alleging that his disability began on September 1, 2012. Mot. to Dismiss, ECF No. 29-2 at 10. Plaintiff's claims were denied initially and on reconsideration. Id. After these denials, Plaintiff filed a written request for a hearing before an ALJ. Id. On April 22, 2016, a hearing was held by video conference before the ALJ who presided from Chicago, Illinois. R. 20, 40. Plaintiff, represented by counsel Harry Brenner, Esq., and Jacquelyn D. Schabacker, an impartial vocational expert, appeared in Atlanta, Georgia. Id. Approximately four months later, the ALJ issued a decision concluding that Plaintiff was disabled within the meaning of the Social Security Act but a medical improvement allowed him to subsequently return to work. Id. at 9-22. On November 2, 2016, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. Id. at 28-30.

         On February 3, 2017, Plaintiff filed a pro se Complaint in this Court to obtain judicial review of the Commissioner's final decision pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g) (2015). Compl., ECF No. 1. After service of process was finally effectuated, Plaintiff filed his Motion for Summary Judgment with supporting memorandum and documentation. Mot. for Summ. J., ECF No. 23. Soon thereafter, Defendant, through counsel Helen Campbell Altmeyer, Assistant United States Attorney, filed her Motion to Dismiss Plaintiff's Complaint as untimely. Mot. to Dismiss, ECF No. 29. That same day, the Court issued an Order and Roseboro Notice notifying Plaintiff of his right and obligation to file a response to Defendant's Motion to Dismiss, explaining why this matter should not be dismissed as untimely. Order and Roseboro Notice, ECF No. 31 at 1, 3. Plaintiff filed his pro se Response to Defendant's Motion to Dismiss, as directed, on December 12, 2017. Resp. to Mot. to Dismiss, ECF No. 34.

         The matter is now before the undersigned United States Magistrate Judge for a Report and Recommendation to the District Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule of Civil Procedure 9.02(a). Having reviewed the parties' motions, the undersigned now issues the following Report and Recommendation.

         III. DISCUSSION

         A. Legal Standard

         “A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)).[1] “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'”[2] Id. at 678 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “Additionally, ‘although a statute of limitations bar is an affirmative defense, it may be resolved on a Rule 12(b)(6) motion to dismiss “when the dates given in the complaint make clear that the right sued upon has been extinguished.”'” Miller v. Colvin, No. CIV-16-26-M, 2016 WL 7670056, at *1 (W.D. Okla. Nov. 30, 2016) (citations omitted), adopted, 2017 WL 95388 (W.D. Okla. Jan. 10, 2017); see also United States v. Kivanc, 714 F.3d 782, 789 (4th Cir. 2013) (“The statute of limitations is an affirmative defense that may be raised in a Rule 12(b)(6) motion to dismiss for failure to state a claim.” (citing Dean v. Pilgrim's Pride Corp., 395 F.3d 471, 474 (4th Cir. 2005))).

         B. Contentions of the Parties

         In her motion to dismiss, Defendant argues that Plaintiff's Complaint should be dismissed because it was not filed within sixty days of receiving the Notice of Appeals Council Action denying Plaintiff's request for review. ECF No. 29-1 at 2-4. Specifically, Defendant argues that the Appeal Council denied Plaintiff's request for review on November 2, 2016, which Plaintiff presumptively received (within five days) on November 7, 2016. Id. Therefore, Plaintiff was required to file his Complaint by January 6, 2017, sixty days later. Id. at 4. Because Plaintiff did not file his Complaint until February 3, 2017, Defendant argues that Plaintiff's Complaint is time barred by the sixty-day statute of limitations. Further, Defendant argues that no circumstances exist that would justify equitable tolling of the statute of limitations. Id. at 4-5.

         In response, Plaintiff first directs the Court's attention to a number of documents that were not considered by the ALJ. ECF No. 34 at 1. Second, Plaintiff does not dispute the late filing in this case. See id. at 1-2. Instead, Plaintiff effectively argues that the sixty-day statute of limitations should be equitably tolled because he was out of the ...


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