United States District Court, D. Utah
HEIDI M. TESSIER, Plaintiff,
ANDREW SAUL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM DECISION & ORDER
B. Pead U.S. Magistrate Judge.
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.)
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.
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.)
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). (ECF No. 11.)
Complaint Is Untimely and Therefore It Must Be
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.
No. Timely Exceptions Were Filed.
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).
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”.)
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.
24, 2019, Administrative Appeals Judge David E. Clark
rejected Plaintiff's request for waiver and affirmed the