United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
REBECCA RUTHERFORD UNITED STATES MAGISTRATE JUDGE
Orlando M., proceeding in forma pauperis,
filed a pro se civil action seeking judicial review
pursuant to 42 U.S.C. § 405(g) of a final adverse
decision by the Commissioner of Social Security. Before the
Court is Defendant's motion to dismiss plaintiff's
appeal as untimely (ECF No. 12). Plaintiff did not respond to
Defendant's motion, and the time for doing so has passed.
The motion is now ripe for determination. For the reasons
stated, the motion should be GRANTED, and Plaintiff's
appeal should be DISMISSED as untimely.
U.S.C. § 405(g) provides that an individual may seek
judicial review in the district court of the final decision
of the Commissioner of Social Security. Section 405(g) is
“the exclusive path” for obtaining such review.
D&G Holdings, L.L.C. v. Azar, 776 Fed.Appx. 845,
847 (5th Cir. 2019) (per curiam); see also Mack v.
Comm'r Soc. Sec., 2009 WL 812147, at *2 (N.D. Tex.
Mar. 26, 2009). To appeal a decision under § 405(g), the
individual must commence a civil action in the district court
of the United States for the judicial district where the
individual resides within 60 days after receiving notice of
the Commissioner's final decision. 42 U.S.C. §
405(g). The Commissioner's decision is final when the
Appeals Council either denies review of or enters a decision
regarding the ALJ's hearing decision. See 20.
C.F.R. § 422.210(c). Unless the plaintiff makes a
reasonable showing to the contrary, the presumed date of
receipt of notice of the Commissioner's final decision is
five days after the date reflected on the notice of the
Appeals Council's action. Id. A suit under
§ 405(g) is properly dismissed as time-barred when the
plaintiff fails to bring it within this 60-day limitations
period. See, e.g., Flores v. Sullivan, 945
F.2d 109, 113 (5th Cir. 1991); McCall v. Bowen, 832
F.2d 862, 865 (5th Cir. 1987); Perot v. United States
Dep't Health & Human Servs., 304 Fed.Appx. 245,
246 (5th Cir. 2008) (per curiam).
Plaintiff's complaint is untimely and should be dismissed
with prejudice. Defendant has provided in support of its
motion a copy of the notice of the Appeals Council's
action, the Commissioner's final adverse decision. It is
dated October 3, 2018. Def.'s App. 19 (ECF No. 12-1).
Thus, to obtain judicial review of the Commissioner's
decision, Plaintiff was required to bring his action in this
Court by December 7, 2018. Plaintiffs complaint was filed on
December 18, 2018. Compl. 1 (ECF No. 3). As such, it was not
timely and should be dismissed. Fletcher v. Apfel,
210 F.3d 510, 513 (5th Cir. 2000) (suit filed one day late is
properly dismissed); Thibodeaux es rel. Thibodaux v.
Bowen, 819 F.2d 76, 79 (5th Cir. 1987) (per curium)
(complaint filed two days late is time barred).
has not made-to the Appeals Council or otherwise-a reasonable
showing that he did not receive notice of the
Commissioner's final decision on October 8, 2019, the
presumed date of receipt. Likewise, he has not demonstrated
any reason that the limitations period should be equitably
tolled in this case. Because Plaintiffs complaint is
untimely, Defendant's motion to dismiss should be
GRANTED, and Plaintiffs claim should be DISMISSED with
FOR SERVICE AND NOTICE OF RIGHT TO
United States District Clerk is directed to serve a true copy
of these findings, conclusions, and recommendation on the
parties. Pursuant to Title 28, United States Code, §
636(b)(1), any party who desires to object to these findings,
conclusions, and recommendation must serve and file written
objections within 14 days after being served with a copy. A
party filing objections must specifically identify those
findings, conclusions, or recommendation to which objections
are being made. The District Court need not consider
frivolous, conclusory, or general objections. A party's
failure to file such written objections to these proposed
findings, conclusions, and recommendation will bar that party
from a de novo determination by the District Court.
See Thomas v. Arn, 474 U.S. 140, 150 (1985).
Additionally, any failure to file written objections to the
findings, conclusions, and recommendation within 14 days
after being served with a copy will bar the aggrieved party
from appealing the factual findings and legal conclusions of
the Magistrate Judge that are accepted by the District Court,
except upon grounds of plain error. See Douglass v.
United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th
Cir. 1996) (en banc).
 The Court uses only Plaintiff's
first name and last initial as instructed by the May 1, 2018
Memorandum Re: Privacy Concern Regarding Social Security and
Immigration Opinions issued by the Committee on Court
Administration and Case ...