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Carter v. Saul

United States District Court, E.D. North Carolina, Western Division

September 25, 2019

John R. Carter, Plaintiff,
v.
Andrew Saul, Commissioner of Social Security, Defendant.

          MEMORANDUM & RECOMMENDATION

          ROBERT T. NUMBERS, II UNITED STATES MAGISTRATE JUDGE

         Plaintiff John Carter instituted this action in March 2019 to challenge the denial of his application for social security income. Carter claims that Administrative Law Judge (“ALJ”) Gary Brockington erred in failing to consider a disability rating by the Veterans Administration (“VA”), as this court directed. See Carter v. Berryhill, No. 5:16-CV-00762-FL, D.E. 22.

         Defendant Andrew Saul, Commissioner of Social Security, has moved to dismiss Carter's complaint asserting that it is untimely. D.E. 15. The undersigned conducted a telephonic hearing in September 2019. After reviewing the parties' arguments, the undersigned recommends that the court deny Saul's motion to dismiss without prejudice.[1][2]

         I. Background

         Carter first sought disability benefits in 2009. After his claim was denied at the initial level and upon reconsideration, Carter appeared at a hearing before an ALJ to determine whether he was entitled to benefits. The ALJ determined that Carter had no right to benefits because he was not disabled. Tr. at 11-19.

         Carter filed an unsuccessful appeal to the Appeals Council and then filed a complaint in this court, which remanded the action by Order dated January 21, 2014. See Carter v. Colvin, No. 5:12-CV-736-FL (E.D. N.C. 2014), D.E. 28.

         Following remand, Carter appeared for a second hearing before an ALJ, who again determined Carter had no right to benefits because he was not disabled. Carter filed an unsuccessful request for review to the Appeals Council before filing a complaint in this court in August 2016. See Carter v. Berryhill, No. 5:16-CV-762-FL. This court remanded the action again finding that the ALJ had failed to explain sufficiently why a disability finding by the Veterans Administration (“VA”) received little to no weight. See Id. at D.E. 22. The court also directed the ALJ to consider Carter's more-recent 2016 VA disability determination. Id.

         Upon remand, a different ALJ held a third hearing on Carter's claim. In August 2018, the ALJ determined that Carter had no right to benefits because he was not disabled.

         Carter then commenced this action in March 2018. D.E. 5.[3] Saul moved to dismiss Carter's action because the court lacked subject-matter jurisdiction over it. D.E. 15. Saul submitted an affidavit in support of his motion explaining, among other things, that the ALJ issued an unfavorable opinion in August 2018, that the SSA notified Carter and his attorney of the decision and the 60-day period to file a civil action, and that Carter has not requested an extension of time to file a civil action. This information, Saul claims, establishes that Carter's action, filed about six months after the ALJ's opinion, is untimely.

         Carter claims that his action is not untimely. He argues that he filed not one, but two appeals with the Appeals Counsel seeking review of the ALJ's decision. According to Carter, the Appeals Counsel appears to have lost his first notice of appeal. And based on information he claims to have received from the SSA, the second appeal is still pending before the agency.

         II. Analysis

         Saul's brings his motion under “Rule 12(b)(1) of the Federal Rules of Criminal Procedure” and “requests that the Plaintiff's complaint be dismissed for lack of subject-matter jurisdiction as it is untimely.” Mot. to Dismiss at 1, D.E. 15. He then explains that Carter's complaint is untimely because “it was not filed within sixty days after the presumptive receipt of notice by Plaintiff of the Commissioner's final decision or within further time allowed by the Commissioner through the Appeals Council.” Mem. in Supp. at 4, D.E. 16.

         But the problem with Saul's argument is that the Supreme Court has held “that the 60-day requirement is not jurisdictional, but rather constitutes a period of limitations.” Bowen v. City of New York, 476 U.S. 467, 478 (1986). The Supreme Court reiterate this point in a case presenting similar factual circumstances less than six months ago. Smith v. Berryhill, 13 S.Ct. 1765, 1773- 74 (2019). Thus, even if Saul is correct that Carter missed the 60-day filing period, it would not deprive this court of subject-matter jurisdiction to address his claim. As a result, the undersigned recommends that the district court deny the motion without prejudice.

         III. ...


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