Opinion
22-CV-03619 (PGG)(SN)
11-22-2022
SHANISE ALEAH WATKINS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
TO THE HONORABLE PAUL G. GARDEPHE:
REPORT AND RECOMMENDATION
SARAH NETBURN, UNITED STATES MAGISTRATE JUDGE.
Shanise Aleah Watkins seeks review of the decision of the Commissioner of Social Security (the “Commissioner”) finding that she was not disabled or entitled to benefits under Title XVI of the Social Security Act (the “Act”), 42 U.S.C. § 1382c. Watkins, however, filed her case after the time limitation under Section 205(g) of the Act, 42 U.S.C. § 405(g). Accordingly, the Commissioner has moved to dismiss, or in the alternative for summary judgment. The Court granted Watkins several opportunities to respond to the Commissioner's motion, but Watkins has not responded. See ECF Nos. 20, 21, 22. Absent any basis to equitably toll the statute of limitations, the Court recommends that the motion to dismiss be granted.
FACTUAL BACKGROUND
The administrative law judge issue a decision denying Watkins's claim for benefits on January 28, 2021. See Declaration of Lesha Cowell (“Cowell Decl.”), ECF 15, Ex. 1. Watkins timely sought review by the Appeals Council, which denied her request on August 18, 2021. Id. at Ex. 2. The Appeals Council issued its Notice by mail addressed to Watkins at 3531 3rd Avenue, Apt. 3C, Bronx, NY 10456 (the “Address”). Id. The Notice informed Watkins of her right to file a civil action in federal court within 60 days from the date of receipt of Notice, and that the date of notice would be presumed to be five days from the date of the Notice, unless there is a reasonable showing to the contrary. Id. On October 25, 2021, Watkins requested an extension of time to file a civil action in federal court, stating that she “never received a letter in my mail box” and only learned about the Appeals Council denial because she called the agency. ECF No. 15, Ex. 3.
The Appeals Council granted the request by letter dated March 21, 2022, which was mailed to the Address. ECF No. 15, Ex. 4. The Appeals Council granted an extension of 30 days from the date Watkins was presumed to have received the letter, which was five dates later, for an effective extension of 35 days. Id. Accordingly, Watkins's deadline to commence a civil action was April 25, 2022. This action was filed on May 4, 2022. In her complaint, Watkins acknowledged that she received the Appeals Council's letter on “March 21, 2022.” Compl., ¶ 8.
PROCEDURAL BACKGROUND
The Commissioner moved to dismiss the case on August 11, 2022. ECF No. 13. In response, the Court granted Plaintiff 30 days to oppose the motion and provided her with information regarding a free clinic that could provide her with legal assistance. ECF No. 20. Plaintiff did not timely file an opposition, and the Court has issued two additional orders reminding Plaintiff of her obligation to respond to the motion. See ECF Nos. 21 & 22. As of the date of the issuance of this Report, Plaintiff has not responded. The Court's orders have been emailed to Plaintiff's designated email address, which she consented to at the time she filed her case. ECF No. 3.
DISCUSSION
The Commissioner moves to dismiss under Rule 12 and 56 of the Federal Rules of Civil Procedure. ECF No. 13. In support of this motion, the Commissioner has filed a Local Civil Rule 56.1 Statement, an attorney declaration with supporting exhibits, and a memorandum of law. See ECF Nos. 16, 15, & 14. The Commissioner served these documents, and a Local Civil Rule 12.1 and 56.2 Notice to Pro Se Party, on the Plaintiff by mailing them to the Address. See ECF No. 19. They were also automatically sent electronically to Plaintiff's email address through the Court's Electronic Case Filing system.
Sections 205(g) of the Act provides the exclusive remedy for a plaintiff who seeks judicial review of the Commissioner's final decision on her eligibility for benefits. 42 U.S.C. § 405(g). Under this provision, a plaintiff must commence her civil suit through the filing of a complaint “within sixty days after the mailing . . . of notice of such decision or within such further time as the Secretary may allow.” 42 U.S.C. § 405(g). Under this statutory grant of authority, the Commissioner issued a regulation extending a plaintiff's time to file to “60 days after . . . notice of the decision by the Appeals Council is received.” 20 C.F.R. § 422.210(c). Thus, “rather than commencing on the date notice of decision is mailed to the claimant, the sixty day period starts from the time notice is received by the claimant.” Matsibekker v. Heckler, 738 F.2d 79, 81 (2d Cir. 1984) (emphasis in original). Under this regulation, receipt of an Appeals Council decision is “presumed to be 5 days after the date of such notice, unless there is a reasonable showing to the contrary.” 20 C.F.R. § 422.210(c); see also Wong v. Bowen, 854 F.2d 630, 631 (2d Cir. 1988); Matsibekker, 738 F.2d at 81; Thomas v. Comm'r of Soc. Sec., No. 16-cv-9247 (LTS)(KHP), 2017 WL 3475435, at *2 (S.D.N.Y. June 22, 2017).
Because the limitations period “defines the terms on which the United States waives its sovereign immunity and consents to be sued, it is strictly construed” even where the delay is minor and the plaintiff is pro se. Davila v. Barnhart, 225 F.Supp.2d 337, 338 (S.D.N.Y. 2002); see also Randell v. United States, 64 F.3d 101, 106 (2d Cir. 1995); Borrero v. Colvin, No. 14-cv-5304 (LTS)(SN), 2015 WL 1262276, at *3 (S.D.N.Y. Mar. 19, 2015) (collecting cases). For this reason, “[f]ailure to file a complaint within the statutory limitation most often requires dismissal of the case.” Natale v. Comm'r of Soc. Sec., 2017 WL 3309734, at *2 (S.D.N.Y. Aug. 2, 2017) (quoting Borrero, 2015 WL 1262276, at *3); see also Courtney v. Colvin, 13-cv-2884 (AJN), 2014 WL 129051, at *2 (S.D.N.Y. Jan. 14, 2014) (“[C]ourts in the Second Circuit have not hesitated to find that complaints that miss this deadline by a matter of days are untimely.”) (collecting cases). And while a plaintiff's pro se status generally merits a degree of leniency, it does not excuse non-compliance with statutory deadlines. See Hakala v. J.P. Morgan Securities, Inc., 186 Fed.Appx. 131, 134 (2d Cir. 2006).
There is a rebuttable presumption that Plaintiff received the Notice by March 26, 2022, and therefore her complaint had to be filed by April 25, 2022 (under the 30-day extension). That presumption, however, can be overcome by “a reasonable showing to the contrary.” 20 C.F.R. § 422.210(c). In addition, the 60-day filing requirement is subject to equitable tolling. See Bowen v. City of New York, 476 U.S. 467, 480 (1986). Although tolling of the limitations period in social security cases “is not infrequently appropriate,” it “requires a showing of both extraordinary circumstances and due diligence.” Torres v. Barnhart, 417 F.3d 276, 279 (2d Cir. 2005). To qualify for equitable tolling, a plaintiff must “show that ‘he has been pursuing his rights diligently' and that ‘some extraordinary circumstance stood in his way.'” Id. (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). As this formulation suggests, there must be a causal connection between the extraordinary circumstances and the plaintiff's failure to file on time. Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000). The plaintiff bears the burden of establishing the exceptional circumstances warranting equitable tolling, Davila, 225 F.Supp.2d at 339, and it should only be applied in the “rare case,” Bowen, 476 U.S. at 481.
Plaintiff writes in her complaint that she received the letter from the Appeals Council on “March 21, 2022.” Compl., ¶ 8. “March 21, 2022” is the date on the Appeals Council's letter and therefore it is possible that she received it on a later date. Plaintiff, however, has provided no information to establish a “reasonable showing” that it was received after the presumptive receipt date of March 26, 2022. 20 C.F.R. § 422.210(c). Additionally, Plaintiff has failed to respond to the Commissioner's motion despite multiple opportunities provided by the Court. See ECF Nos. 20, 21, & 22. Thus, on this record, the Court has no basis to find “extraordinary circumstances and due diligence” to equitably toll the filing deadline. Torres, 417 F.3d at 279.
The Court recognizes that this result may be harsh, especially when considering Plaintiff's underlying disabilities. See Canales v. Sullivan, 936 F.2d 755, 759 (2d Cir. 1991) (recognizing that equitable tolling may be warranted where an SSI disability plaintiff fails to timely seek judicial review because of mental impairment). The filing deadline, however, is a condition of the waiver of sovereign immunity, and it must be strictly construed. See Bowen, 476 U.S. at 479. Although the Court may apply equitable tolling in certain circumstances, it may not develop its own factual record to do so. Having failed to respond to the Commissioner's motion, the Court must recommend that the case be dismissed as time-barred.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D), or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Paul G. Gardephe at the United States Courthouse, 40 Foley Square, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Gardephe. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).