United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
P. SIMON, JUDGE.
the Court is the defendant Commissioner of the Social
Security Administration's Motion to Dismiss for Failure
to Timely File Civil Action. [DE 13.] Because Choate missed
the deadline for filing this case, and equitable tolling does
not apply, I will grant the Commissioner's motion.
Administrative Law Judge denied Jeffrey Lawton Choate's
claim for Social Security benefits, and Choate requested
review of the ALJ's decision from the Appeals Council.
His administrative appeal was denied on July 9, 2017. In its
denial letter, the Appeals Council notified Choate that he
had the right to commence a civil action within 60 days from
the date of the receipt of the notice. The Appeals Council
also provided a copy of this denial letter to Choate's
representative who had represented him before the ALJ.
for mailing time, Choate had 65 days to commence a civil
action from the date of the Appeals Council's July 9,
2017 letter. In other words, Choate had until September 12,
2017 to file this action. Choate did not file the complaint
in this case by September 12, 2017. Twice after this
deadline, on September 20, 2017 and September 22, 2017,
Choate filed a request with the Appeals Council for an
extension to file a civil action. In these requests, Choate
told the Appeals Council that he had not received his denial
letter “on time, ” though he didn't specify
what this meant. Choate explained that “[t]he post
office delivered my notice to 181 N. Elkhart Ave. Apt #304
and my address is apartment #102.” [DE 14-1 at 50-51.]
Choate also noted that his representative had just recently
told him that the representative would not be pursuing an
appeal on his behalf. Prior to this, Choate had thought that
the representative was planning on taking care of the civil
action. [Id. at 48.]
he filed a request for an extension in September of 2017,
Choate didn't hear back from the Appeals Council for
awhile. On September 29, 2017, Choate filed this civil action
and is proceeding pro se. Nearly four months later,
on January 19, 2018, the Appeals Council denied Choate's
request for an extension. The Commissioner now seeks to
dismiss Choate's appeal on the basis that it was
ruling on a 12(b)(6) motion to dismiss, the Court must treat
all well-pleaded allegations as true and draw all inferences
in favor of the non-moving party. In re marchFIRST
Inc., 589 F.3d 901, 904 (7th Cir. 2009). To survive a
Rule 12(b)(6) motion, the plaintiff's complaint must
plead facts that suggest a right to relief that is beyond the
“speculative level.” EEOC v. Concentra Health
Svcs., Inc., 496 F.3d 773, 776-77 (7th Cir. 2007)
(citing Bell Atl. Corp. v. Twombly, 550 U.S. 554,
560-63 (2007)). A mere formulaic recitation of a cause of
action's elements will not do. Twombly, 550 U.S.
at 555. Rather, the complaint must contain enough facts to
state a claim to relief that is plausible on its face.
Bissessur v. Ind. Univ. Bd. of Trustees, 581 F.3d
599, 602 (7th Cir.2009) (citing Twombly, 550 U.S. at
570). 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.” Bissessur, 581
F.3d at 602.
document filed pro se is “to be liberally construed,
” and “a pro se complaint, however inartfully
pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v.
Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 427 U.S. 97, 106 (1976)).
Social Security Act provides that a claimant may obtain
review of a decision denying benefits “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). The 60-day requirement is not jurisdictional
but constitutes a period of limitations that may be tolled by
the Commissioner or the Court if “fairness
demands.” Chamberlain v. Colvin, 2016 WL
2609578, at **1-2 (citing Bowen v. City of New York,
476 U.S. 467, 479-81 (1986) and Johnson v. Sullivan,
922 F.2d 346, 355 (7th Cir. 1990)).
Commissioner filed a motion to dismiss Choate's complaint
on the basis that it was not timely filed within the 60-day
statute of limitations. Choate did not respond to this
motion, so I directed him to do so. In response, Choate filed
a declaration that he was unable to file in a timely manner.
[DE 17.] Although he did not expressly invoke equitable
tolling, Choate did indicate that several obstacles
interfered with his ability to timely file, which is relevant
to the equitable tolling analysis. Id.
the doctrine of equitable tolling, a person's failure to
file a civil complaint within the time specified may be
excused if the plaintiff can show that he was pursuing his
rights diligently and that some kind of extraordinary
circumstances prevented the timely filing. See United
States v. Wong, 135 S.Ct. 1625, 1632-33, 1637 (2015).
“Equitable tolling is a doctrine used sparingly,
reserved for those situations in which extraordinary
circumstances prevent a party from filing on time. It applies
only to cases in which circumstances prevent a litigant from
filing despite the exercise of due diligence, regardless of
the defendant's conduct.” Bensman v. U.S.
Forest Serv., 408 F.3d 945, 964 (7th Cir. 2005)
(internal citations omitted).
tolling is appropriate where a plaintiff receives misleading
information from a Social Security office, Bolden v.
Chater, 1996 WL 374122, at *1-2 (N.D. Ill. June 28,
1996), or when a pro se plaintiff is unsure of the filing
deadline and attempts diligently (albeit unsuccessfully) to
contact a Social Security office to uncover the deadline,
James v. Berryhill, 2017 WL 5128984, at *2 (N.D.
Ill. Nov. 6, 2017). In most cases, even good faith errors by
an attorney or client are an insufficient to invoke the
doctrine. Wilson v. Battles, 302 F.3d 745, 748-49
(7th Cir. 2002). In this circuit, equitable tolling is not
appropriate when a pro se litigant is aware of a filing
deadline, has not been misled by the Social Security
Administration, and does not timely file a complaint.
Stuller v. Acting Comm'r of Soc. Sec., 2017 WL
6034366, at *2-3 (N.D. Ind. Dec. 5, 2017); see also
Chamberlain, 2016 WL 2609578, at *4-5.
claims that there are several extenuating circumstances that
explain his late filing. Although he did not argue it here,
Choate filed a request to the Commissioner for an extension
of time to file his civil complaint in which he represented
to the Commissioner that he did not receive his denial letter
(which starts the 60-day clock) “on time.” The
record does show that, in his extension request, Choate
alleged that “[t]he post office delivered my notice to
181 N. Elkhart Ave. Apt #304 and my address is apartment
#102.” [DE 14-1 at 50-51.] However, it's not at all
clear what “on time” means. While a person can
overcome the five-day presumption by a reasonable showing
that the notice was received on a different date, 20 C.F.R.
§§ 404.901, 422.210(c), Choate has offered no
evidence or explanation of the date he actually received the
notice. See Krontz v. Astrue, 2008 WL 2518624, at *3