UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

DAVID SMITH, 

 PLAINTIFF, 

 VS. 

CAROLYN W. COLVIN, ACTING 

COMMISSIONER OF SOCIAL SECURITY, 

 DEFENDANT. 

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CAUSE NO. 1:14-CV-405-RLM-SLC

OPINION and ORDER 

This matter is before the court on a motion to dismiss filed by defendant 

Carolyn W. Colvin, Acting Commissioner of Social Security. The Commissioner 

says plaintiff David Smith’s case is untimely filed, so dismissal is appropriate 

pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. 

Mr. Smith, who opposes the motion, seeks judicial review, under 42 U.S.C. § 

1383(c)(3), of the Commissioner’s final decision denying his application for 

supplemental security income. In November 2011, Mr. Smith applied for 

supplemental security income; in August 2013, the Administrative Law Judge 

issued a decision that concluded that Mr. Smith wasn’t disabled and denied his 

claim for benefits. The Appeals Council denied Mr. Smith’s request for review of 

the ALJ’s decision on April 10, 2014. The Appeals Council’s decision to deny an 

individual’s request for review of the ALJ’s decision is the Commissioner’s final 

decision, 20 C.F.R. § 404.981, and subject to judicial review under 42 U.S.C. § 

405(g). 
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When evaluating a Rule 12(b)(6) motion to dismiss, the court must 

interpret the well-pleaded allegations in the complaint to be true and draw all 

inferences in favor of the non-moving party. In re marchFIRST Inc., 589 F.3d 

901, 904 (7th Cir. 2009). Because Mr. Smith is pro se, the court must construe 

his complaint liberally and hold his pleadings are held to a less stringent 

standard. Henderson v. Sheahan, 196 F.3d 839, 845-846 (7th Cir. 1999) (quoting

Haines v. Kerner, 404 U.S. 519, 520 (1972)). Dismissal on Rule 12(b)(6) grounds 

is only appropriate for a pro se complaint “if it appears ‘beyond doubt that the 

plaintiff can prove no set of facts in support of his claim which would entitle him 

to relief.’” Id. at 846 (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). 

The timeliness of Mr. Smith’s suit depends on the date the Notice of 

Appeals Council Action was sent to him. The notice contained the Appeals 

Council’s decision denying Mr. Smith’s request for review of the ALJ’s decision. 

Mr. Smith’s complaint didn’t include a copy of the notice, but the Commissioner 

submitted a copy with its dismissal motion (Doc. No. 15-1 at 25-29). When a 

defendant submits pertinent documents with a motion to dismiss, the 

documents “are considered part of the pleadings if they are referred to in the 

plaintiff’s complaint and are central to [his] claim.” Venture Assocs. Corp. v. 

Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993). The notice contains 

the Commissioner’s final decision on Mr. Smith’s application for supplemental 

security income – a prerequisite for Mr. Smith’s suit to be before the court, 42 
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U.S.C. § 405(g)-(h), and the decision that Mr. Smith appeals. The notice is central 

to Mr. Smith’s claim and the court can consider it. 

A person must commence a civil action for judicial review of the 

Commissioner’s final decision “within sixty days after the mailing to him of notice 

of such decision.” 42 U.S.C. § 405(g). The sixty-day time period begins when the 

individual receives the notice, 20 C.F.R. §§ 404.981, 422.210(c), which is 

presumed to happen five days after the date on the notice. 20 C.F.R. §§ 404.901, 

422.210(c). The Notice of Appeals Council Action for Mr. Smith’s review request 

is dated April 10, 2014, so the date of receipt is presumed to be April 15. The 

sixty days are calculated from the next day, April 16, which means Mr. Smith 

had until June 16 to file suit. He filed his complaint on December 29, 2014 – six 

months late. 

The presumption of receipt within five days can be overcome by a 

reasonable showing that the notice was received on a later date. 20 C.F.R. §§ 

404.901, 422.210(c). On his form complaint, Mr. Smith filled in “09/08/14” for 

the date on which the Appeals Council denied his application. In his response to 

the motion to dismiss, however, Mr. Smith doesn’t mention the September date 

written on the complaint, the date on which he actually received the notice, or 

the timeliness of his suit in general. Instead, he tells the court that he first filed 

for social security/disability benefits seven years ago and he has been denied 

benefits several times. He then summarizes why he believes that he is entitled to 

benefits. The court must generously construe Mr. Smith’s pro se filings and 
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interpret his well-pleaded allegations to be true at the motion to dismiss stage. 

But Mr. Smith doesn’t explain the discrepancy between what he claims to be the 

date of denial in the complaint and the date of denial reflected on the copy of the 

actual notice. Mr. Smith hasn’t made a reasonable showing that he received the 

Notice of Appeals Council Action on a date later than five days following the date 

on the notice. Cf. Krontz v. Astrue, No. 1:07-CV-303, 2008 WL 2518624, at *3 

(N.D. Ind. June 20, 2008) (copy of fax the individual sent to the Commissioner 

inquiring about her request for an extension of time was sufficient evidence to 

rebut the presumption that she had received the notice of extension five days 

after it was dated). 

Mr. Smith’s complaint was filed six months too late, so the court GRANTS 

the Commissioner’s Rule 12(b)(6) motion to dismiss (Doc. No. 15) for failure to 

state a claim and DIRECTS the clerk to enter judgment for the defendant. 

 SO ORDERED. 

 ENTERED: July 29, 2015 

 /s/ Robert L. Miller, Jr. 

 Judge 

 United States District Court