Opinion
NO. 5:07-CV-236 (CWH).
December 7, 2007
SOCIAL SECURITY APPEAL ORDER
Before the court is the defendant Commissioner of Social Security's Motion to Dismiss the above-captioned appeal of the denial of plaintiff DARLENE LUCAS' application for Social Security Income ("SSI") benefits. Tab #11. Commissioner Astrue alleges that the plaintiff's complaint was not timely filed, and that the plaintiff is therefore foreclosed from bringing this action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Two months after the Commissioner filed his Motion to Dismiss, plaintiff Lucas — through counsel — filed a Motion To File Complaint Out of Time. Tab #12.
The procedural history involved is not in dispute. On March 23, 2007, the Appeals Council denied the plaintiff's request for review of an Administrative Law Judge's denial of the plaintiff's claim for SSI benefits. Pursuant to 42 U.S.C. 2b 405(g), the plaintiff had sixty days from receipt of the Appeals Council's notice to request judicial review. Thus, plaintiff LUCAS had until May 29, 2007, in which to file her appeal in federal court. However, the instant appeal was not filed until June 15, 2007.
The Commissioner's brief in support of his motion is persuasive and unopposed. The only filing the plaintiff has made since the Commissioner filed his motion to dismiss is a motion to file complaint out of time which does not allege that any special circumstances exist for permitting the suit to go forth save "clerical error."
Because the plaintiff's appeal was untimely filed and the plaintiff has failed to provide an adequate excuse for such tardiness, the Commissioner's Motion to Dismiss is GRANTED, and the plaintiff's Motion To File Complaint Out of Time is DENIED.
SO ORDERED.