The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM ORDER OF COURT
Pending now before the Court is DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT, filed on behalf of Michael J. Astrue, the Commissioner of Social Security (Doc. # 4), with brief in support (Doc. # 5). On April 12, 2010, the Court ordered Plaintiff to respond to Defendant's motion to dismiss on or before April 30, 2010. To date, no response in opposition has been filed, and there has been no other request for an extension of time within which to respond. As such, the motion is uncontested and is ripe for disposition.
Plaintiff filed the Complaint on behalf of Robert Bentley, her deceased husband, in response to a decision of the Social Security Commissioner which denied her husband's claim for a period of disability and for Disability Insurance Benefits under Title II of the Social Security Act. Robert Bentley sought and received a hearing before an administrative law judge ("ALJ"), who, pursuant to an April 30, 2008 decision, denied his claim for benefits under Title II.*fn1 Robert Bentley apparently requested review of the ALJ's decision from the Appeals Council, which was denied on January 16, 2009. Subsequently, Plaintiff requested the case to be reopened and for more time to file a civil action. By letter dated October 23, 2009, the Appeals Council denied the request for reopening, but granted Plaintiff an additional thirty (30) days to file a civil action. Plaintiff instituted this action on December 28, 2009. See Doc. # 1.
Defendant argues that Plaintiff's complaint is an appeal of the Commissioner's decision and should be dismissed as untimely because it was filed beyond the thirty (30) day extension of time afforded to Plaintiff to initiate a civil action pursuant to 42 U.S.C. § 405(g).*fn2 According to Defendant, Plaintiff was required to have commenced her action by November 27, 2009, but did not do so until thirty-one (31) days beyond the last day of the extension.*fn3
The United States Supreme Court has held that the sixty (60) day time period set forth in Section 405(g) is not jurisdictional, but rather, constitutes a statute of limitations. See Bowen v. City of New York, 476 U.S. 467, 478, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). More particularly, the sixty (60) day limit under which a claimant must bring a court action is a condition on the waiver of sovereign immunity, which condition is to be strictly construed. Id. at 479. The statute also makes it clear that the Commissioner can extend the time to file an action, which was granted in this case. As such, Defendant is correct that Plaintiff was required to initiate her civil action within the thirty (30) day extension of time granted by the Appeals Council, and that Plaintiff actually initiated the action well beyond that period.*fn4 Accordingly, Plaintiff's Complaint will be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).
AND NOW, this 15th day of June, 2010, upon consideration of DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT (Doc. # 4) and brief in support thereof (Doc. # 5),
IT IS HEREBY ORDERED that said motion is GRANTED, and Plaintiff's Complaint is hereby DISMISSED in its entirety. The ...