Collier-Fluellen v. Commr. of SSA , 408 F. App'x 330 ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 10-12898 JAN 19, 2011
JOHN LEY
Non-Argument Calendar CLERK
________________________
D.C. Docket No. 4:08-cv-00032-CDL-GMF
SANDRA COLLIER-FLUELLEN,
lllllllllllllllllllll Plaintiff - Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
lllllllllllllllllllll Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
(January 19, 2011)
Before BARKETT, MARCUS and FAY, Circuit Judges.
PER CURIAM:
Sandra Collier-Fluellen appeals from the district court’s dismissal of her
complaint seeking review of the Social Security Commissioner’s denial of her
application for disability insurance benefits. The district court dismissed her
complaint on the ground that it was not timely filed within the 60-day statute of
limitations under 42 U.S.C. § 405(g), and that she was not entitled to equitable
tolling. On appeal, she contends that the district court erred in determining that
she failed to show extraordinary circumstances warranting equitable tolling.1
We have held that while “equitable tolling may apply to § 405(g)’s statute
of limitations, before a court may do so it must apply ‘traditional equitable tolling
principles.’ And traditional equitable tolling principles require that the claimant
demonstrate extraordinary circumstances, such as fraud, misinformation, or
deliberate concealment.” Jackson v. Astrue, 506 F.3d 1349, 1355 (11th Cir.
2007). Thus, more than a showing of good cause is required to meet this standard,
and we accordingly held in Jackson that the claimant was not entitled to equitable
tolling because she failed to show that extraordinary circumstances contributed to
her mistakenly filing her complaint in state rather than federal court. Id. at 1355-
57.
On appeal, Collier-Fluellen emphasizes that the Social Security
Administration took nearly seven years to adjudicate her claim, and that this undue
1
“The question of whether equitable tolling applies is a legal one subject to de novo
review.” Jackson v. Astrue, 506 F.3d 1349, 1352 (11th Cir. 2007) (citation omitted).
2
delay has the effect of precluding her from filing a new administrative claim. She
further points out that allowing her claim to proceed on the merits would not
prejudice the Commissioner. However, it is undisputed that the reason why
Collier-Fluellen’s complaint was not timely filed was because her attorney
miscalculated the filing deadline. Unfortunately, such negligence on the part of
her attorney does not constitute an extraordinary circumstance. See id. at 1355-56
(citing Sandvik v. United States, 177 F.3d 1269, 1271-72 (11th Cir. 1999)).
Accordingly, we must affirm.
AFFIRMED.
3