court, Plaintiff filed an Amended Complaint. [Dkt 20.] Defendant filed an answer and the
administrative record, [Dkt 24, 25.]

The original pro se Complaint filed by Plaintiff was on the form Complaint of Employment
Discrimination, although Plaintiff named as the defendant the Commissioner of Social Security, at
the address listed in the September 25, 2000 Action of Appeals Council: Room 611, Altmeyer
Building, 6401 Security Boulevard, Baltimore, MD 21235. (Compl. at 1.) In her Amended
Complaint, signed and filed by Plaintiff's appointed counsel, Plaintiff claims that the SSA violated
the due process guarantees of the United States Constitution by failing to inform Plaintiff of the
grounds of the ALJ’s decision. Specifically, Plaintiff alleges that no copy of the ALJ's decision was
issued to Plaintiff (Am. Comp]. { 2); that she was never informed orally or in writing of the reasons
for the denial of benefits (/d. J 3); that the decision of the Appeals Council on September 25, 2000
failed to provide any reason for the denial of benefits and that Plaintiff never received a copy of the
Appeals Council’s decision of September 25, 2000 (Id. 5); that the December 8, 2001 [sic] letter
from the Appeals Council never informed Plaintiff of the basis for denying her benefits (/d. 6); and
by failing to so inform Plaintiff, the SSA violated 42 U.S.C. § 1383(c)(1)(a), and the due process
guarantees of thc Constitution. (/d. 7.) In her prayer for rclief, Plaintiff requested that she be
granted the benefits denied as a result of the ALJ’s decision.

Defendant’s Answer stated as its “First Defense” that the court lacks jurisdiction because the
action was not brought within the time required by the Social Security Act, 42 U.S.C. § 405(g).
Answering the specific allegations of the Amended Complaint, Defendant denied the allegations that

the SSA failed to provide Plaintiff with the reasons for the denial of benefits.



his residence, and that the SSA had recorded the changed address in its computers (/d. at 204), the
SSA sent the notice of termination to Chavis’ residence. There was a finding by the ALJ, based on
Chavis’ testimony, that Chavis did not receive the written notice and was not aware that his benefits
had been terminated until he phoned the SSA office in August, 1979 to inquire about his check. He
was not told at that time of his right to appeal. Chavis reapplied for benefits and, although the ALJ
found that Chavis was not at that time disabled, he also found that the plaintiff's duc process rights
had been violated, and, as a remedy, awarded Chavis disability benefits from June, 1979 until the
date when the plaintiff reapplied. The district court obscrved that the recipient of welfare bencfits
has a protected property interest in the continued receipt of those benefits, /d. at 203. The earlier
finding by the SSA that Chavis was disabled created a presumption that Chavis remained disabled,
and therefore entitled to benefits, through the date of his reapplication. /d. at 205. The court agreed
with the ALJ that Chavis did not reccive notice of the termination and that the information given to
Chavis in August, 1979 was not sufficient because it did not inform him of his right to appeal the
decision. The court concluded that the SSA violated Chavis’ procedural due process rights when
it terminated plaintiff's benefits without actual or adequate notice of the termination and appeal
rights. Jd. (emphasis added).

The differences between this case and Chavis are apparent. Here, the SSA did not rest on
its carlier mailing of the Action of Appeals Council, but rather granted Plaintiff's request for an
extension of time, presumably based on her argument thai the Action had been mailed to the wrong
address. There is no proof that Plaintiff did not receive actual notice of the December 8, 2000 letter
granting the extension and the accompanying denial of her appeal. On the contrary, the Amended

Complaint alleges that the SSA’s December 8, 2000 letter was issued “informing Ms. Sims of the


of the SSA “upon the pleadings and transcript of the record,” Plaintiff's motion does not deal with
the menits of the decision of the Commissioner denying Plaintiff benefits. Instead, the issue here
involves certain facts outside the administrative record. Accordingly, the parties were required to
follow the rules for motions for summary judgment in civil cases. [fa party’s failure to follow the
rules results in the Court adopting a version of the facts that is perhaps not as favorable to that party,
that party is bearing the consequence of its own actions. See Metropolitan Life, 297 F.3d at 362.
Turning to the merits of the parties’ arguments, Plaintiff's Amended Complaint does not
request a review of the Commissioner’s decision to deny benefits. It does not allege that the
Commissioner’s decision to deny benefits was not supported by substantial evidence or was legally
incorrect. Instead, the Amended Complaint is framed in the nature ofa civil rights claim, requesting
that the Court order the award of benefits as a remedy for the alleged deprivation of Plaintiff's due
process rights in allegedly failing to advise Plaintiff of the reasons for the denial of benefits.
Likewise, Plaintiffs Motion for Summary Judgment does not argue that this Court should
review or reverse the Commissioncr’s decision because it was legally incorrect or not supporled by
substantial evidence. Instead, in a shift of focus from the Amended Complaint, Plaintiff argues that:
Ms. Sims was denied basic due process when her notice of denial and right of civil
appeal was sent to the wrong address, even alter she had previously informed the
Defendant of her change of address on several occasions.

(Pl.’s Mot. Summ. J. at 3.)* Ln support of this assertion, Plaintiff attached to her Motion her affidavit

4 Presumably the reason for this shift is that the allegations of the Amended Complaint are
contrary to the face of the record. Plaintiffs claim that “at no time” did SSA advise her of the
reasons for the denial of benefits is contradicted by the fact that Plaintiff filed a Request for a Review
of the ALJ’s decision on March 4, 1999, within 65 days of the ALJ’s decision (R. 11), and that
apparently additional evidence was submitted to the Appeals Council in the form of treatment
records from November 1998 to February 1999. (R. 10.) Nowhere in her briefs to this Court does
Plaintiff suggest how she filed a request for review of the ALJ's decision without having received

6



Defendant’s Motion to Dismiss for Lack of Jurisdiction.

Title 42 U.S.C. § 405(g) provides that a party may obtain review of the Commissioner’s final
decision by “a civil action commenced within sixty days after the mailing to him [claimant] of notice
of such decision or within such further time as the Commissioner of Social Security may allow.”
Defendant's Motion to Dismiss or Alternatively for Summary Judgment argues initially that
Plaintiff's failure to fite her civil lawsuit by January 16, 2001 deprives this court of jurisdiction.
(Def.’s Mem. Supp. Mot. Summ. J. at 1.) [Dkt 34.] Defendant cites no authority for that argument,
and, indeed, the Supreme Court has held to the contrary. “[T]he 60-day requirement [in § 405(g)]
is not jurisdictional, but rather constitutes a period of limitations.” Bowen v. City of New York, 476
U.S. 467, 478 (1986), citing prior authority. Thus, Defendant’s motion to dismiss for lack of

jurisdiction is denied.

Plaintiff's and Defendant’s Motions for Summary Judgment.

At the outset it must be observed that both Plaintiff's and Defendant’s motions for summary
judgment violate the District Court’s Local Rule 56.1. Neither party filed a statement of material
facls as to which the party contends there is no genuine issue, which is required by LR 56.1(a)(3).
This Court requires compliance with that Local Rule. See Court’s Case Management Procedures,
available on the website for the Northen District of Mlinois, www.ilnd.uscourts.gov. See also
Metropolitan Life Ins, Co. v. Johnson, 297 F.3d 558, 562 (7" Cir. 2002)(“[ W]e have emphasized the
importance of local rules and ‘have consistently and repeatedly upheld a district court’s discretion

to require strict compliance with its local rules governing summary judgment’”)(internal citation

omitted). Although 42 U.S.C. §405(g) permits the Court to affirm, modify or reverse the decision



Under the regulations that govern the Commissioner’s decision, the reasons for granting an
extension include “You {the claimant] did not receive notice of the determination or decision.”
20 CLLR. § 404.911(b)(7). Presumably Plaintiffs request for extension, which does not appear in
the record, was based on the same argument she makes to this Court-that the Action of Appeals
Council had been mailed to the old address.° The SSA apparently accepted Plaintiff's explanation,
and granted her an additional thirty days to file a civil action. The sixty-day limitation was tolled
by the SSA’s decision to extend Plaintiff's time for filing a civil suit, but only until January 16, 2001.
Plaintiff has not alleged or argued any grounds for equitable tolling of that deadline. Instead,
without citing any authority, Plaintiff argues that the Commissioner was statutorily required to grant
her an extension of sixty days. Section 405(g) expressly grants to the Commissioner discretion to
determine the “further time” by which the deadline to file a civil action is extended. Plaintiff has not
alleged any facts suggesting that the granting of an additional thirty days rather than sixty days was
an abuse of discretion, nor has she cited any authority supporting her argument that the constitution al
guarantee of duc process requires that she be granted sixty days.

Plaintiff relies substantially on Chavis v. Heckler, 577 F. Supp 201 (D.C.D.C. 1983). The
plaintiffin that case, Charles Chavis, had previously becn receiving supplemental security income,
but in May 1979 the SSA determined that Chavis’ disability had ceased. In June, 1979, the SSA sent
notice of its intention to terminate Chavis’ benefits and of his right to appeal. Notwithstanding the

undisputed facts that Chavis had requested that all notices be sent to his post office box rather than

5 The applicable regulation, 20 C.F.R. § 404.982, requires that a request for an extension to
file a civil action must be “in writing.” However, no written request appears in the administrative
record, nor is there any copy of any such request included in any of the Plaintiff's submissions to this
Court. The Plaintiff’s affidavit does not discuss her request for extension.

8



Minute fates Foren (0897)

United of District Court, Northern Distri@of Illinois AG

Name of Assigned Judge Geraldine Soat Brown Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 01 C778 DATE 8/28/2002
CASE Sims vs. SSA
TITLE

[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

of the motion being presented.]

MOTION:

DOCKET ENTRY:

Docketing to mail notices. *

(I Oo Filed motion of [ use listing in “Motion” box above.]
(2) oO Brief in support of motion due
(3) QO Answer brief to motion due. _. Reply to answer brief due
(4) o Ruling/Hearingon set fort
(5) Oo Status hearing[held/continued to] [set for/re-sct for) on set for at
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on Seb for ak
(7) Oo Trial{set for/re-set for] on _ at .
(8) Q [Bench/Jury trial] [Hearing] held/continued to at -
(9) o ‘This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CFRCP4(m) CO) Local Rule 41.1 OO FRCP41(a)(1) [1 FRCP41(a)(2).
ao of [Other docket entry] As set forth in the Memorandum Opinion and Order, Plaintiffs motion for summary
judgment [31-1] is DENIED; Defendant's motion to dismiss [ 33-1] is DENIED; and Defendant's motion for symmary
judgment [ 33-2] is GRANTED. Judgment is entered in favor of the defendant and against the plaintiff. er,
(1) of [For further detail see order (on reverse side offattached to) the original minute order.]
No notices required, advised in open court, Document
No notices required same onan ee Nemnber
UV | Notices mailed by judge’s suff.

Mail AO 450 form. Mee pa ma

i . Asotin, fury dials

Copy to judge/magisteate judge.
sash

are mniled vatice
euuriraom:

bw doputy’s
initials

Date/time received in
central Clerk’s Oifice ‘mailing deputy inicials



judgment [dkt 33-2] is GRANTED. Judgment is entered in favor of the defendant and against the
plaintiff.

IT IS SO ORDERED.

Va

GERALDINE SOAT BROWN
United States Magistrate Judge

DATED; August 28, 2002

il



decision of the Appeals Council.” (Am. Compl. 6.) A copy of the December 8, 2000 letter is
attached as Exhibit B to the Amended Complaint. Furthermore, Plaintiff has failed to set forth any
factual basis to support an argument that the notice that she received in the form of the December
8, 2000 letter was inadequate.

The second case cited by Plaintiff, Jn re Forfeiture of $2,354 United States Currency, 760
N.E.2d 565 (Lil. App. 2001), is likewise distinguishable. In that case, through the fault of the state,
the petitioner did not receive notice that his money was forfeited until after the time to contest the
forfeiture had expired. Jd. at 572. Thus, the court held that the state did not mect the due process
requirement to provide “notice reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford them an opportunity to present their
objections.” Jd. at 569, quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314
(1950). In the present case, Plaintiff has not alleged, let alone demonstrated, that she did not receive
the December 8, 2000 letter in sufficient time to file a civil action before the expiration of the
extension, January 16, 2001.

Plaintiff failed to file her civil action within the time required by § 405(g), ée., “within such
further time as the Commissioner of Social Security shall allow.” Plaintiff has provided no reason
for her failure to file within that time. Accordingly, Defendant's motion for summary judgment is

granted.

CONCT.USION
Vor the foregoing reasons, Plaintiff's motion for summary judgment (dkt 31] is DENIED;

Defendant's motion to dismiss [dkt 33-1] is DENIED; and Defendant’s motion for summary

10



asserting that on April 15, 2000 she moved from 7036 8. Rhodes, First Floor, Chicago Illinois to
10520 Wabash St, #1, Chicago, Mlinois, and that on April 20, 2000 and “subsequent occasions
following,” she disclosed that new address to individuals at the SSA. (PIJ.’s Mot. Summ. J., Ex. 3,
13-4.)

Strikingly absent from Plaintiff's affidavit is any statement: (a) that Plaintiff did not receive
the December 8, 2000 letter, which was properly addressed to the new address; (b) stating the date
that Plaintiff received the December 8, 2000 letter; or (c) setting out any reason why the extension
of time permitted by the SSA in the December 8, 2000 letter (until January 16, 2001) was not
sufficient to enable the Plaintiff to file a civil action.

As discussed by the Supreme Court in City of New York, the sixty-day requirement isa
statute of limitation. That limitation is subject to waiver. Johnson v. Sullivan, 922 F.2d 346, 355
(7" Cir. 1991), citing prior authority. Defendant has not waived that limitation in this case, having
pleaded it as an affirmative defensc. (Answer, F irst Defense.) ‘The statute is also subject to equitable
tolling. City of New York, 476 US at 480. However, the Supreme Court stated in City of New York
that “tin most cases the Secretary [now the Commissioner of the §SA] will make the determination
whether it is proper to extend the period within which review must be sought,” referring to the
provision of § 405(g) under which the Commissioner may extend the period for filing. /d. That is

the provision under which Plaintiff in this case was granted an extension of thirty days.

a copy of the decision.

Additionally, the Amended Complaint alleges that Plaintiff never received a copy of the
decision of the Appeals Council denying her appeal. (Am. Compl. {| 5.) However, a copy of the
Action of Appeals Council, which is attached as Exhibit A to the Amended Complaint, was enclosed
with the SSA’s December 8, 2000 letter, a copy of which is attached as Exhibit B to the Amended
Complaint, Also, the initial Complaint that was filed by Plaintiff pro se listed the defendant’s
address exactly as listed in the September 25, 2000 Action of Appeals Council. (Compl. at 1; R. 8.)

1



receipt of this letter. It will be presumed that this letler is received within five (5)
days after the date shown above unless a reasonable showing to the contrary is made.

If you cannot file your complaint within 60 days, you may ask the Appeals Council

to extend the time in which you may begin a civil action. However, the Council will

only extend the time if you provide a good reason for nol meeting the deadline. Your

reason(s) must be set forth clearly in your request.

(R. 8-9.) The Action of Appeals Council was addressed to 7036 S. Rhodes, First Floor, Chicago,
IL 60637,

The administrative record contains a letter dated December 8, 2000, from the Social Security
Administration (“SSA”) Office of Hearings and Appeals, addressed to the Plaintiff at 10520 Wabash
St. #1, Chicago, IL 60628. (R. 7.) The letter states that the Council has received a request for
extension of timc to commence a civil action. It further states:

The time within which a civil action may be commenced is hereby extended for a

period of 30 days from the date of receipt of this letter. The date of receipt shall be

presumed to be 5 days from the date of this letter, unless a reasonable showing is

made to the contrary.

As requested, we are enclosing a copy of the Appeals Council’s notice.

(R.7)

To comply with the extension set out in the SSA’s letter, Plaintiff's civil action should have

been filed on or before January 16, 2001.3 Plaintiff filed this action on February 5, 2001 [dkt 1], the

filty-nineth day after the SSA’s letter. Plaintiff originally filed her original Complaint pro se, but

the District Judge appointed counsel to represent Plaintiff on May 4, 2001. [Dkt 15.] By leave of

? By this Court’s calculation, the thirty-day extension, plus the five days for receipt of the
December 8, 2000 Ictter, would make the deadline for filing a civil action Friday, January 12, 2001.
Defendant states that the deadline was January 13, 2001. (Def.’s Mem. Supp. Mot. Summ. J. at 1.)
However, January 13, 2001 was a Saturday, and the following Monday, January 15, 2001 was a
federal holiday. Therefore, by Defendant’s calculation, a filing on Tuesday, January 16, 2001 would
have been timely. Fed. R. Civ, P. 6(a).



blood pressure and a heart murmur. (R. 119-122.)’ The application was initially denied on August
20, 1996, and again upon reconsideration on December 16, 1996. (R. 92, 97,) Plaintiff filed a timely
request for hearing, and a hearing was held on September 16, 1998, See transcript of hearing,
(R. 25-87). Plaintiff appeared and testified at the hearing. (R. 30-56.) She was informed ofher right
to legal representation, but she elected to proceed without a legal representative. (R. 28-29.) On
January 26, 1999, the Administrative Law Judge (“ALJ”) rendered his decision that Plaintiff was not
disabled and was not cligible for supplemental security income. (R. 16-23.)

The administrative record shows that a Notice of Decision—-Unfavorable was mailed to
Plaintiff at 7036 S. Rhodes, First Floor, Chicago, Tllinois 60637 on January 26, 1999. The notice
advised Plaintiff that:

To filc an appeal, you must file your request for review within 60 days from the date

you get this notice,

The Appeals Council assumes you got the notice 5 days after the date shown above

unless you show you did not get it within the 5-day period. The Council will dismiss

a late request unless you show you had good cause for not filing it on time.

(R. 13, emphasis in original.)

Plaintiff filed a request for review of the ALJ’s decision on March 4, 1999, again listing her
address as 7036 S. Rhodes, First Floor, Chicago Illinois 60637. (R. 11.) The Appeals Council
denied Plaintiffs request for review on September 25, 2000. (R. 8.) The Action of Appeals Council
on Request for Review stated:

If you desire a court review of the Administrative Law Judge’s decision, you may

commence a civil action by filing a complaint in the United States District Court for
the judicial district in which you reside within sixty (60) days from the date of the

2 *R,_” refers to the certificd record of proceedings, evidentiary documents, and
administrative hearing transcript prepared by the Social Security Administration’s Office of Hearings
and Appeals pursuant to 42 U.S.C. § 405(g).



UNITED STATES DISTRICT COURT DOCKETED
NORTHERN DISTRICT OF ILLINOIS AUG 2 9 2002
EASTERN DIVISION
EDNA SIMS, )
Plaintiff, ) Cause No. 01 C 778
)
Y. ) Magistrate Judge Geraldine Soat Brown

)
COMMISSLONER OF )
SOCIAL SECURITY, )
Defendant. )
)

MEMORANDUM OPINION AND ORDER
This case comes before the Court on the plaintiffs motion for summary judgment [dkt 31]
and the defendant’s motion to dismiss or alternatively for summary judgment [dkt 33]. For the
reasons set out below, the plaintiffs motion for summary judgment is DENIED; the defendant’s

motion to dismiss is DENIED and the defendant’s motion for summary judgment is GRANTED.'

BACKGROUND
The issue presented by the motions is somewhat different from the issue in most appeals from
decisions of Commissioner of Social Security (the “Commissioner” or “Defendant”). The issue in
the present case is whether the filing of this lawsuit by Edna Simms (“Plaintiff”) was timely.
On July 2, 1996, Plaintiff filed an application for supplemental security income under the

Social Security Act, 42 U.S.C. § 1381 et seq., alleging disability as of June 15, 1992, due to high

' The partics have consented to the exercise of jurisdiction by a United States Magistrate
Judge. [Dkt 26, 27.] Accordingly, this Opinion and Order constitutes the fmal judgment in this case.

1