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Weiand v. Colvin

United States District Court, E.D. Wisconsin

February 24, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.



The Defendant, Acting Commissioner of the Social Security Administration, Carolyn W. Colvin, filed a motion to dismiss for failure to state a claim contending that pro se Plaintiff Kathleen Weiand’s appeal from the denial of her applications for social security disability benefits and supplemental security income is barred by the time limitation for filing such an action. (ECF No. 13.) Weiand has responded, stating that she “is very lost and confused . . . I have received so much paperwork . . . I do not believe I have missed any deadlines.” (ECF No. 14.)

Federal civil actions brought to review a final decision of the Commissioner of Social Security are subject to a 60-day statute of limitations. See 42 U.S.C. § 405(g) (“Any individual, after any final decision of the Commissioner . . . to which [s]he was a party . . . may obtain a review of such decision by a civil action commenced within sixty days after the mailing to [her] of notice of such decision or within such further time as the Commissioner . . . may allow.”); 42 U.S.C. § 1383(c)(3); see also Bowen v. City of New York, 476 U.S. 467, 479-81 (1986). The 60-day requirement is not jurisdictional and is subject to equitable tolling. See Bowen, 476 U.S. at 481.

Regulations provide that “the date of receipt of notice of denial of request for review . . . shall be presumed to be 5 days after the date of such notice, unless there is a reasonable showing to the contrary.” 20 C.F.R. § 422.210(c). A party may seek an extension of time to file an action in Federal court, but that written request must be filed with and granted by the Appeals Council first in order to extend the deadline. See 20 C.F.R. §§ 404.982; 416.1482.[1] In certain rare circumstances, equitable tolling can excuse a late filing but only when the plaintiff can show: “(1) that [she] has been pursuing [her] rights diligently, and (2) that some extraordinary circumstance stood in [her] way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).

Because the Appeals Council Notice is dated Wednesday, July 29, 2015, Weiand is presumed to have received the notice on Monday, August 3, 2015. Based on that date, Weiand had to file her action in federal court no later than Friday October 2, 2015. The Commissioner contends that Weiand’s action is untimely because it was not filed until October 9, 2015, a week after the filing deadline.

However, the following papers filed in this case raise questions about the path to its filing: (1) a form certifying that Weiand mailed her “Appeal, Remand, decisions for Disability and SSI” to the United States Attorney’s Office for this District on September 23, 2015 (ECF No. 1-7.) (The form states “[t]his form may be used to certify that documents, other than the complaint, have been served.”); (2) the original paper Complaint filed with the Clerk of Court, which bears a September 24, 2015, “received” stamp of the U.S. Attorney’s Office, [2] (ECF No. 1); (3) a letter from the United States Department of Education, also stamped “received” by the U.S. Attorney’s Office on September 24 (ECF No. 1-5); and (4) an envelope (paper copy only) from Weiand postmarked September 23, addressed to the United States Attorney’s Office, with a post-it note attached stating, “Clerk of Courts? Original DOCS.”

It appears that Weiand mailed her Complaint form and paperwork to the U.S. Attorney’s Office, where it was received on September 24, 2015; and it was then forwarded by that office to the Clerk of Court for the Eastern District of Wisconsin, where it was received and filed on October 9, 2015.

The Court also takes judicial notice of court records disclosing that on September 14, 2015, Weiand filed a motion for an extension of time to file her social security disability appeal so she could find an attorney, and she requested any forms she needed to complete for an extension of time and the appeal. See In re: Weiand, No. 15-MC-48 (the “MC action”) (ECF No. 1.) The Clerk of Court sent her Social Security appeal forms and instructions on September 17. (See MC action docket.) On September 24, Judge Stadtmueller issued an order denying the motion and informing Weiand she needed to either initiate an appeal of the Commissioner’s decision within 60 days of its receipt. Judge Stadtmueller suggested that if she was concerned about timeliness, she should file the action pro se and continue looking for an attorney, or request an extension of time from the Commissioner. (MC action, ECF No. 2.) He also indicated that if she missed the filing deadline she could commence the action and seek an equitable tolling of the limitations period. Id.

In addition, the Court notes that the ALJ’s decision (for which Weiand seeks review) found that Weiand has severe impairments of fibromyalgia, chronic pain, depression, and anxiety and non-exertional limitations in concentration, persistence, and pace and social demands. (ECF No. 1-2.)

The facts drawn from court records raise questions of equitable tolling and/or equitable estoppel[3] to which the Court cannot turn a blind eye. See Socha v. Pollard, 621 F.3d 667, 673 (7th Cir. 2010.) (Stating that the district court should keep in mind the flexibility that is often appropriate for pro se litigants, who are likely not well versed in complex procedural rules.) See also Socha v. Boughton, 763 F.3d 674, 688 (7th Cir. 2014) (holding that under the circumstances of that case the limitations period was tolled).

The Court also notes that the Commissioner proffered a declaration and attached exhibits in support of her motion, but she did not comply with the requirements of Civil L.R. 56(a) (E.D. Wis.) made applicable if a party is unrepresented by counsel and the opposing party files motion to dismiss for failure to state a claim where matters outside the pleadings are presented to the Court. Therefore, the Commissioner must supplement her motion and augment her brief to address the questions raised by this decision and order. Weiand may also file a response thereto.

Although Weiand has filed her brief on the merits of her appeal (ECF No. 15), the remaining dates set by the October 23, 2015, briefing schedule (ECF No. 6) are stayed until further order of the Court.


On or before March 28, 2016, the Commissioner must file a supplemental motion and brief addressing the questions ...

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