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Tessier v. Saul

United States District Court, D. Utah

November 18, 2019

HEIDI M. TESSIER, Plaintiff,
v.
ANDREW SAUL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM DECISION & ORDER

          Dustin B. Pead U.S. Magistrate Judge.

         The parties in this case consented to United States Magistrate Judge Dustin B. Pead conducting all proceedings, including entry of final judgment, with appeal to the United States Court of Appeals for the Tenth Circuit. (ECF No. 13); see 28 U.S.C. § 636(c); Fed.R.Civ.P. 73. Currently pending is Defendant Andrew Saul's (“Defendant” or “Commissioner”), Motion to Dismiss Plaintiff Heidi Tessier's (“Plaintiff” or “Ms. Tessier”) federal action. (ECF No. 11.)

         On October 30, 2019, the Court requested additional information on discrete issues raised in the parties' briefing. (ECF No. 16.) As requested, that briefing was submitted and upon review the court now rules as follows. (ECF No. 17, ECF No. 18.)

         BACKGROUND

         On January 12, 2018, United States District Court Judge Dale Kimball remanded Ms. Tessier's case, seeking disability insurance benefits under Title II of the Social Security Act, to the Commissioner for further administrative proceedings. See Civil Action Number, 2:17-cv- 00143; (ECF No. 11-1, Declaration of Janay Podraza; Exhibit 1 “Notice Of Order Of Appeals Council Remanding Case To Administrative Law Judge”). On remand, Administrative Law Judge (“ALJ”) Gilbert A. Martinez issued a decision on December 3, 2018, denying Ms. Tessier's claim for benefits. (ECF No. 11-1, Exhibit 2.)

         On June 11, 2019, Ms. Tessier filed a federal civil action seeking review of the ALJ's decision. (ECF No. 1); see 42 U.S.C. § 405(g). On September 10, 2019, Defendant moved to dismiss Plaintiff's action for failure to state a claim for relief pursuant to Federal Rule of Civil Procedure 12(b)(6).[1] (ECF No. 11.)

         DISCUSSION

         Plaintiff's Complaint Is Untimely and Therefore It Must Be Dismissed.

         In order to pursue a timely appeal of the ALJ's December 3, 2018 decision, Ms. Tessier had two options, either: (1) file timely exceptions with the agency's Appeals Council within thirty (30) days from the date of notice of the ALJ's decision; or (2) commence a timely civil action, within one hundred twenty-one (121) days from the date of notice of the ALJ's decision. See 20 C.F.R. § 404.984(b); 20 C.F.R.§ 404.984(d). Ms. Tessier did neither and as a result her action is untimely and subject to dismissal.

         1. No. Timely Exceptions Were Filed.

         Under the first option, Ms. Tessier was entitled to file exceptions with the Appeals Council within thirty (30) days from the date of notice of the ALJ's decision. See 20 C.F.R. § 404.984(b).

         As part of the December 3, 2018 Notice of an Unfavorable Decision, the ALJ advised Ms. Tessier that if she disagreed she could submit written exceptions to the Appeals Council, or a request additional time to do so, within “30 days of the date you get this notice.” (ECF No. 11-1, Exhibit 2 “Notice of Decision-Unfavorable”.) The notice further explained that the date of receipt is presumed to be “5 days after the date of the notice unless you show that you did not get it within the 5-day period.” Id., see also 20 C.F.R. § 404.981, 20 C.F.R. § 404.982. As a result, Ms. Tessier's exceptions, or her request for additional time to file exceptions, were due by January 7, 2019---thirty (30) days from the date of notice plus five (5) days for mailing. Plaintiff exceptions, however, were not received by the Appeals Council until February 2, 2019. (ECF No. 11-1, Exhibit 1 Declaration of Janay Podraza, ¶(4)(b); Exhibit 3 “Request For Review Of Hearing Decision/Order”.)

         In a letter dated March 25, 2019, the Appeals Council informed Ms. Tessier that her exceptions were untimely, but granted her an additional twenty (20) days to submit proof of timeliness. (ECF No. 11-1, Exhibit 1 Declaration of Janay Podraza, ¶(4)(b); Exhibit 4.) On April 8, 2019, Ms. Tessier filed her response seeking a “good cause” waiver of the applicable time limits. (ECF No. 11-1, Exhibit 5.) In doing so, Plaintiff did not submit proof of timeliness, but sought an exception based on her inability to remember tasks and instructions. Id.

         On May 24, 2019, Administrative Appeals Judge David E. Clark rejected Plaintiff's request for waiver and affirmed the ALJ's ...


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