Wallies v. Social Security Administration

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS CENTRAL DIVISION CATHY WALLIES o/b/o A.R.A.W. PLAINTIFF v. No. 4:25-cv-00491-JM-ERE SOCIAL SECURITY ADMINISTRATION, Commissioner DEFENDANT ORDER Pending before the Court is Defendant’s Motion to Dismiss. Doc. 8. Plaintiff has responded. Doc. 9. Defendant asserts that this case should be dismissed because it was filed more than 65 days after the date on the Notice of Appeals Council Action (“Notice”).1 The filing deadline presumes that the Notice was received within five days of its date, but this five-day presumption can be overcome with “a reasonable showing to the contrary.” 20 C.F.R. § 422.210(c). Receipt “by either the individual or the individual’s attorney, whichever occurs first, triggers the sixty-day limitations period.” Bess v. Barnhart, 337 F.3d 988, 990 (8th Cir. 2003). 1 42 U.S.C. § 405(g) (A case must be commenced in federal district court “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.”); 20 C.F.R. § 404.981 (same); 20 C.F.R. § 404.901 (“Date you receive notice means 5 days after the date on the notice, unless you show us that you did not receive it within the 5-day period.”); 20 C.F.R. § 422.210 (same). The Notice is dated March 12, 2025, which means, with five days for mailing, the filing period expired on May 16, 2025. Plaintiff filed the Complaint on May 19, 2025. Doc. 2. Attempting to overcome the five-day presumption, Plaintiff asserts that her lawyer “received the copy of the Appeals Council denial on March 24, 2025” and attached a copy of the receipt-stamped Notice to her response. Doc. 9. However, there is no indication of when Plaintiff, personally, received the Notice. Because the filing period begins to run from receipt by either Plaintiff or her lawyer, whichever is first, additional information is required before the pending motion can be resolved. By Friday, August 1, 2025, Plaintiff must supplement the record with information related to when she, personally, received the Notice from Defendant. So Ordered 18 July 2025. ZYV_. MMA