Morales v. Berryhill

          MEMORANDUM AND ORDER ON MOTION TO DISMISS

          MICHAEL P. SHEA, U.S.D.J.

         The Commissioner of Social Security (the “Commissioner”) moves to dismiss plaintiff Victor M. Lara Morales's (“Morales”) complaint because Morales did not timely file this action, and because no circumstances warrant equitable tolling. (ECF No. 12.) As set forth below, I agree and GRANT the Commissioner's motion.

         I. Factual Background

         Morales received Supplemental Security Income (“SSI”) benefits based on disability as a child. (See ECF No. 13 at 12.)^[1] When Morales turned eighteen, the Commissioner re-reviewed his case under the standards for adults and determined that Morales was not disabled. (See id.) Morales appealed that determination, and following a hearing an Administrative Law Judge (“ALJ”) found that Morales had not been disabled since February 24, 2012. (Id. at 29.) Morales requested review of the ALJ's decision before the Social Security Administration's Appeals Council. (Id. at 3, ¶ 3(b).) In a notice dated January 13, 2017, the Appeals Council denied review. (Id. at 30.) The notice set forth when and how Morales could seek court review of the ALJ's decision and the procedure he would need to follow:

If You Disagree With Our Action

If you disagree with our action, you may ask for court review of the Administrative Law Judge's decision by filing a civil action.

If you do not ask for court review, the Administrative Law Judge's decision will be a final decision that can be changed only under special rules.

How to File a Civil Action

You may file a civil action (ask for court review) by filing a complaint in the United States District Court for the judicial district in which you live. The complaint should name the Commissioner of Social Security as the defendant and should include the Social Security number(s) shown at the top of this letter.

You or your representative must deliver copies of your complaint and of the summons issued by the court to the U.S. Attorney for the judicial district where you file your complaint, as provided for in rule 4(i) of the Federal Rules of Civil Procedure.

Time to File a Civil Action

• You have 60 days to file a civil action (ask for court review).

• The 60 days start the day after you receive this letter. We assume you received this letter 5 days after the date on it unless you show us that you did not receive it within the 5-day period.

• If you cannot file for court review within 60 days, you may ask the Appeals Council to extend your time to file. You must have a good reason for waiting more than 60 days to ask for court review. You must make the ...