                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-1535


DANIEL F. STEWART,

                  Plaintiff – Appellant,

             v.

SOCIAL SECURITY ADMINISTRATION,

                  Defendant – Appellee.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.     Peter J. Messitte, Senior District
Judge. (8:09-cv-00781-PJM)


Submitted:    January 25, 2010              Decided:   February 10, 2010


Before WILKINSON, DUNCAN, and AGEE, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


Daniel F. Stewart, Appellant Pro Se.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             While an inmate at the Eastern Pre-Release Unit in

Maryland, Daniel Floyd Stewart filed a complaint on March 24,

2009, against the Social Security Administration (“SSA”).                                    The

court directed Stewart to submit additional information because

the   complaint         did     not     make       clear     what      decision       he     was

challenging       and     on    what    basis.           Based    on     the      supplemental

documentation        filed      by     Stewart,      it     was     discerned         that    an

Administrative       Law       Judge    denied     Stewart        supplemental        security

income payments from November 19, 2003, through June 29, 2006,

the   date   he     was      incarcerated,         and    that     the      Appeals    Council

denied the appeal on December 18, 2008.                             The district court

dismissed     the    complaint          as   untimely       filed.           We    vacate    the

district court’s order and remand for further proceedings.

             Under      42     U.S.C.    § 405(g)         (2006),      an    individual      may

obtain review of a final decision of the Commissioner of Social

Security in federal district court by commencing a civil action

“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).           The

regulations clarify that a civil action must be commenced within

sixty days after the Appeals Council’s decision “is received by

the individual . . . except that this time may be extended by

the Appeals Council upon a showing of good cause.”                                  20 C.F.R.

                                               2
§ 422.210(c) (2009).             The date of receipt of the notice is

presumed to be five days after the date of such notice, unless

there is a reasonable showing to the contrary.                 Id.

           On    its    face,    Stewart’s     complaint,       dated    March   21,

2009, is clearly untimely.           However, Stewart submits on appeal,

as he did below through a letter he attached to his complaint,

that the Appeals Council extended his time to file a judicial

complaint.       The Council’s letter specifically states that the

Council received Stewart’s request for more time to file a civil

action   and    that    the    Council   grants      Stewart   a   forty-five    day

extension of time to file a civil complaint from the date of

receipt of the Council’s letter, dated February 26, 2009.

           Because the Appeals Council is authorized to extend

the time for filing a judicial complaint, Stewart received such

an extension, and his complaint is timely filed in light of the

extension, we vacate the district court’s order and remand for

the   district    court’s      consideration      of   Stewart’s     complaint   as

timely filed.      We dispense with oral argument because the facts

and legal contentions are adequately presented in the materials

before   the    court    and    argument     would     not   aid   the   decisional

process.

                                                             VACATED AND REMANDED




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