Gilbreth v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
DECLAN J. GILBRETH 	PLAINTIFF
v. 	Civil No. 2:25-CV-02160-MEF
FRANK BISIGNANO, Commissioner,
Social Security Administration 	DEFENDANT
MEMORANDUM OPINION AND ORDER
This is an action for judicial review brought pursuant to 42 U.S.C. § 405(g). 	(ECF No.
2). The parties have consented to the exercise of jurisdiction by the undersigned for all purposes
in the case pursuant to 28 U.S.C. § 636(c). 	(ECF No. 5). 	Presently before the Court is the
Commissioner’s unopposed Motion to Dismiss, filed on March 6, 2026, which seeks dismissal of
the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF No. 14).
Plaintiff has not filed a response, and the time for doing so has expired. See Local Rule 7. The
Court has fully considered the issues and, for the reasons discussed below, the Commissioner’s
Motion to Dismiss is GRANTED and the Complaint is DISMISSED with prejudice.
I. 	PROCEDURAL HISTORY
On August 5, 2022, Plaintiff filed an application for child disability benefits under Title II
of the Social Security Act, § 42 U.S.C. §§ 401-403. (ECF No. 14-1, p. 8). Following a hearing
on October 8, 2024, an ALJ issued a written decision dated October 24, 2024, denying Plaintiff’s
claim for benefits, and mailed a copy of the decision to Plaintiff and to his attorney
representative. 	(Id., pp. 3, 5-25). 	Plaintiff requested review by the Appeals Council on
November 25, 2024, and his attorney representative submitted a brief on December 10, 2024.
(Id., pp. 3, 26-30). In a notice dated September 30, 2025, the Appeals Council informed Plaintiff
Case 2:25-cv-02160-MEF Document 15 Filed 04/13/26 Page 1 of 6 PageID #:
<pageID>

2
and his attorney that it had denied review and that the ALJ’s determination, therefore, was “the
final decision of the Commissioner” in the matter. (Id.). The notice also set forth the procedural
requirements for obtaining further review of the final decision in a court of law. It specified:
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 request in writing
and give your reason(s) in the request.
You must mail your request for more time to the Appeals Council at the address
shown at the top of this notice. 	Please put the Social Security number(s) on your
request. We will send you a letter telling you whether your request for more time has
been granted.
(ECF 14-1, p. 27).
On December 5, 2025, Plaintiff initiated this action by filing a two-page Complaint,
alleging that the Commissioner’s decision “is not supported by substantial evidence and applies
an erroneous standard of law.” (ECF No. 2, p. 1-2). On March 6, 2026, the Commissioner filed
the instant Motion to Dismiss, asserting that Plaintiff’s Complaint fails to state a claim because it
runs afoul of the 60-day limitations period in 42 U.S.C. § 405(g). In support of his Motion, the
Commissioner has submitted the declaration of Lesha Cowell, which principally serves to place
relevant items from the administrative record before the Court—namely, the ALJ’s decision and
the 	Appeals 	Council’s 	notice 	of 	denial.1 	As 	noted, 	Plaintiff 	has 	not 	contested 	the
Commissioner’s motion.
1 Cowell is Chief of Court Case Preparation and Review Branch 4 of the Social Security
Administration’s Office of Disability Adjudication. 	Cowell Dec. at 1. 	She states that she is
responsible for processing of claims under Title II of the Social Security Act when civil actions
are filed in Arkansas and that the file in Plaintiff’s case shows the pertinent details in the Appeals
Case 2:25-cv-02160-MEF Document 15 Filed 04/13/26 Page 2 of 6 PageID #:
<pageID>

3
II. 	APPLICABLE LAW
To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a
“complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that
is plausible on its face.’” 	Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009)
(quoting Ashcroft v. Iqbal, 566 U.S. 662, 678 (2009)). Here, the Commissioner does not directly
challenge the adequacy of Plaintiff’s allegations to state a claim that substantial evidence does
not support the disability decision. 	Rather, the Commissioner asserts that Plaintiff has no
actionable claim because he failed to file his Complaint within the sixty-day period prescribed by
42 U.S.C. § 405(g).
This statute provides, in pertinent part, that:
Any individual, after any final decision of the Commissioner of Social Security
made after a hearing to which he was a party … may obtain a review of such
decision by a civil action commenced within sixty days after the mailing to him of
notice of such decision or within such further time as the Commissioner of Social
Security may allow.
42 U.S.C. § 405(g). 	Regulations further specify that when the Appeals Council has denied
review, the decision of the ALJ becomes binding unless the claimant files a civil action within
sixty days of receiving the Appeals Council’s notice of denial. See 20 C.F.R. § 422.210(a)-(c).
Absent a reasonable showing to the contrary, there is a presumption that a claimant received the
notice of denial five days after the date of the notice. Id., § 422.210(c).
The Supreme Court has construed the sixty-day restriction for commencing a civil action
under 42 U.S.C. § 405(g) to be a statute of limitations, waivable pursuant to Rule 8(c) of the
Federal Rules of Civil Procedure. 	See Mathews v. Eldridge, 424 U.S. 319, 328 (1976) (citing
Council Notice and the ALJ Opinion, which are submitted as Exhibits 1 and 2 to the Declaration.
(ECF No. 14-1, pp. 3-4, 5-30).
Case 2:25-cv-02160-MEF Document 15 Filed 04/13/26 Page 3 of 6 PageID #:
<pageID>

4
Fed. R. Civ. P. 8(c) and Weinberger v. Salfi, 422 U.S. 749, 763-764 (1975)). 	As such, it is an
affirmative defense which “is not ordinarily a ground for Rule 12(b)(6) dismissal unless the
complaint itself establishes the defense.” Jessie v. Potter, 516 F.3d 709, 713 n.2 (8th Cir. 2008)
(citing Varner v. Peterson Farms, 371 F.3d 1011, 1017-1018 (8th Cir. 2004) (dismissing claims
under Rule 12(b)(6) where allegations in complaint ruled out tolling of limitations period)).
Importantly, the Eighth Circuit has noted that, “[t]hough matters outside the pleadings
may not be considered in deciding a Rule 12 motion to dismiss, documents necessarily embraced
by the complaint are not matters outside the pleading.” 	Zean v. Fairview Health Services, 858
F.3d 520, 526 (8th Cir. 2017) (quotations omitted). Thus, when considering whether a complaint
establishes a limitations defense, courts may consider, inter alia, matters that are integral to the
claim and items appearing in the record of the case without converting a motion to dismiss under
Rule 12(b)(6) into one for summary judgment. 	See Miller v. Redwood Toxicology Laboratory,
Inc., 688 F.3d 928, 931 n.3 (8th Cir. 2012) (listing items that may properly be considered and
citing 5B Wright & Miller, Fed. Prac. & Proc. Civ. § 1357 (3d ed. 2004)). Under this principle,
this Court considers the authenticated portions of the administrative record—namely, the
Appeals Council Notice and the ALJ Opinion—when resolving the limitations issue in this case
because these materials are necessarily embraced by the Complaint. See Shaver v. Astrue, 783 F.
Supp. 2d 1072, 1077 (N.D. Iowa 2011) (relying on authenticated portions of the administrative
record when resolving limitations issue, noting such materials are embraced by the complaint).
Plaintiff’s Complaint challenges the ALJ’s decision on the ground that, contrary to 42 U.S.C. §
405(g), it is not supported by substantial evidence on the record of his proceeding. (ECF No. 2,
p.1). 	Further, the statute makes clear that judicial review of the Commissioner’s final decision
Case 2:25-cv-02160-MEF Document 15 Filed 04/13/26 Page 4 of 6 PageID #:
<pageID>

5
entails consideration of the findings of the Commissioner in the transcript of the record. 	See
generally 42 U.S.C. § 405(g).
III. 	DISCUSSION
Here, the Commissioner’s limitations argument hinges on two material facts: (1) that the
Appeals Council’s Notice September 30, 2025, and the five-day presumption set forth in 20
C.F.R. § 422.210(c), required Plaintiff to commence this action by December 4, 2025; and (2)
his Complaint was not filed until December 5, 2025. 	(ECF No. 14, pp. 1-5). 	The Notice
explained that the Appeals Council would assume Plaintiff received it five days after the date on
the Notice unless Plaintiff showed that he did not receive it within that 5-day period. (Id.). The
Appeals Council also notified Plaintiff that if he could not file for court review within sixty days,
he could ask the Appeals Council to extend his time to do so. (Id.). As noted, Plaintiff has not
responded to the Commissioner’s motion and, thus, has presented no evidence or argument to
show that he did not receive the Notice within five days of its date; therefore, the presumption
that he received it by October 5, 2025, is unrebutted, and Plaintiff was required to file his
Complaint no later than December 4, 2025. 	He did not file his Complaint until December 5,
2025, and he has offered no response explaining his failure to do so. Thus, viewing the facts in
the light most favorable to Plaintiff, the Court finds that this action was filed too late and must be
dismissed.
Such an outcome may seem harsh, but Plaintiff has offered no justification whatsoever
for excusing the limitations bar. 	The Court is obligated to “strictly construe” § 405(g)’s sixty-
day provision, which Congress enacted in order “to move cases to speedy resolution in a
bureaucracy that processes millions of claims annually.” 	Bowen v. City of New York, 476 U.S.
467, 479, 481 (1986). That is so even where, as here, a Social Security plaintiff misses the sixty-
Case 2:25-cv-02160-MEF Document 15 Filed 04/13/26 Page 5 of 6 PageID #:
<pageID>

6
day deadline by one day. 	See e.g. Cook v. Commissioner, 480 F.3d 432, 437 (6th Cir. 2007)
(“Although allowing [the claimant] to file his complaint one day late likely would create little
prejudice to the Commissioner in this particular case, we are mindful of the fact that there are
millions of applicants for Social Security benefits each year, and that the lack of a clear filing
deadline could create havoc in the system.”).
Accordingly, the Court concludes that Plaintiff’s Complaint is untimely and must be
dismissed with prejudice.
IV. 	CONCLUSION
For 	the 	reasons 	stated 	above, 	Defendant’s 	Motion 	to 	Dismiss 	(ECF 	No. 	14)
is GRANTED and Plaintiff’s Complaint (ECF No. 2) is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED this 13th day of April 2026.
/s/
Mark E. Ford
HON. MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
Case 2:25-cv-02160-MEF Document 15 Filed 04/13/26 Page 6 of 6 PageID #:
<pageID>