Opinion
Case No. CIV-19-140-BMJ
06-14-2019
RHONDA WOODS, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Plaintiff, Rhonda Woods, filed a Complaint seeking judicial review of the Social Security Administration's (SSA) denial of her application for social security benefits. [Doc. No. 1]. The matter was assigned pursuant to In re: Social Security Cases, GO 16-4 (W.D. Okla.) (eff. Jan. 1, 2017). Chief United States District Judge Joe Heaton is the current Grand Jury Judge on duty. Defendant has filed a motion to dismiss arguing that Plaintiff's Complaint is untimely, (Def.'s Mot.) [Doc. No. 8], and Plaintiff responded, (Pl.'s Resp.) [Doc. No. 10]. The Court converts Defendant's motion into one for summary judgment and recommends that it be DENIED.
Plaintiff filed two Responses, one with evidence attached. See [Doc. Nos. 9, 10]. Out of an abundance of caution, the Court has considered Plaintiff's second Response.
I. Conversion of Defendant's Motion
Defendant seeks dismissal under Fed. R. Civ. P. 12(b)(6) but attaches evidence to the motion. See Def.'s Mot. at 1 & Ex. 1. To consider these materials, the Court must give the parties notice and convert the motion into one for summary judgment. See Fed. R. Civ. P. 12(d); see also Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). However, Plaintiff also attached evidence to her Response. See Pl.'s Resp., Ex. 1. Accordingly, the Court may, and does, convert Defendant's motion into one for summary judgment without prior notice. See Wiggins v. Colvin, No. CIV-14-103-R, 2014 WL 3870009, at *3 (W.D. Okla. Aug. 6, 2014) (adopting the magistrate judge's conversion of Defendant's motion to dismiss plaintiff's social security appeal as untimely into a motion for summary judgment and noting: "Although no notice of conversion to a motion for summary judgment has yet been given in this case, both parties have presented evidence related to the timeliness of Plaintiff's appeal, and neither has objected."); see also Apachito v. Berryhill, No. 17-CV-0504 JCH/SMV, 2018 WL 354678, at *2 (D.N.M. Jan. 10, 2018) (recommending Defendant's motion to dismiss - arguing plaintiff's social security federal appeal was untimely - be converted to a motion for summary judgment and noting that since both parties attached evidence to their pleadings no prior notice of the conversion was required), adopted, 2018 WL 626258 (D.N.M. Jan. 30, 2018).
Page citations refer to this Court's CM/ECF pagination.
II. Standard of Review
Under Rule 56 of the Federal Rules of Civil Procedure, a court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). Because Defendant asserts an affirmative defense in her motion for summary judgment, she "must demonstrate that no disputed material fact exists regarding the affirmative defense asserted." Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997); see also Miller v. Colvin, No. CIV-16-26-M, 2016 WL 7670056, at *1 (W.D. Okla. Nov. 30, 2016) (ruling on Defendant's motion to dismiss plaintiff's social security appeal as untimely and noting "a statute of limitations bar is an affirmative defense"), adopted, 2017 WL 95388 (W.D. Okla. Jan. 10, 2017). If Defendant meets her initial burden, Plaintiff "must then demonstrate with specificity the existence of a disputed material fact." Id. In evaluating the motion for summary judgment, the Court must consider the evidence in the light most favorable to Plaintiff (the nonmovant) and will draw all reasonable inferences from those facts in favor of her. See Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009).
III. Analysis
The Appeals Council denied Plaintiff's request for review on December 7, 2018. See Def.'s Mot., Ex. 1 at 3, 20. Pursuant to 42 U.S.C. § 405(g):
An 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.Id.; see also 20 C.F.R. § 422.210(a). SSA Regulations further state:
(c) Time for instituting civil action. Any civil action described in paragraph (a) of this section must be instituted within 60 days after the Appeals Council's notice of denial of request for review of the administrative law judge's decision or notice of the decision by the Appeals Council is received by the individual, institution, or agency, except that this time may be extended by the Appeals Council upon a showing of good cause. For purposes of this section, the date of receipt of notice of denial of request for review of the presiding officer's decision or notice of the decision by the Appeals Council shall be 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).
Based on the foregoing, Plaintiff's deadline for filing her social security appeal was, presumably, February 11, 2019. Plaintiff did not file her Complaint until two days later, on February 13, 2019. See [Doc. No. 1]. However, Plaintiff provides evidence that she did not actually receive the Appeals Council's notice until December 15, 2018. See Pl.'s Resp., Ex. 1 at 1 (showing Plaintiff's attorney's file-stamped receipt dated December 15, 2018). Construing the evidence in a light most favorable to Plaintiff, the Court finds that it presents a "reasonable showing" to rebut the five-day notice presumption. Wiggins, 2014 WL 3870009, at *2 (adopting magistrate judge's reliance on plaintiff's attorney's file-stamped receipt date to rebut the presumption that plaintiff received notice within five days of the Appeals Council's decision). More importantly, Defendant did not reply to Plaintiff's Response to challenge that evidence and did not produce any evidence showing the actual date the notice was mailed. See Def.'s Mot., Ex. 1, passim; see also, e.g., Apachito, 2018 WL 354678, at *4-5 (finding plaintiff had successfully rebutted the five-day notice presumption where plaintiff averred she never received the notice and Defendant did not provide any evidence showing the date the notice was actually mailed). Accordingly, the Court finds Plaintiff's deadline was sixty days from December 15, 2018, or Wednesday, February 13, 2019. See Wiggins, 2014 WL 3870009, at *7 (after finding plaintiff successfully rebutted the five-day notice presumption, calculating the filing deadline from the date plaintiff's attorney actually received the notice). Thus, Plaintiff's filing was timely.
As Defendant notes, sixty-five days from the Appeal Council's December 7, 2018 decision fell on Sunday, February 10, 2019. Thus, Plaintiff's filing would have been due one day later, on Monday, February 11, 2019. See Fed. R. Civ. P. 6(a)(1)(C).
Ideally, Plaintiff's attorney would have further supported her actual notice argument with an affidavit, either from Plaintiff or from her attorney. See, e.g., Wiggins, 2014 WL 3870009, at *2 (noting the magistrate judge had considered plaintiff's affidavit in conjunction with the date-stamp). However, Defendant did not respond to challenge Plaintiff's evidence, see supra at 4, and, when construing it in a light most favorable to Plaintiff, the Court finds it sufficient.
The Court however rejects Plaintiff's suggestion that the mid-December 2018 to mid-January 2019 government shutdown would have "tolled the deadline to file by 35 days." Pl.'s Resp. at 2. That is, Plaintiff alleges "confusion and misunderstanding" about the government shutdown, id., but the Court's Temporary General Order specifically stated, in relevant part: "This Order does not prohibit, in any manner, the ability of parties to file claims or commence actions against the United States. However, the cases or matters commenced while there is a lapse in appropriations will be immediately stayed, pending restoration of appropriations." In the Matter of the Federal Lapse in Appropriations, GO 18-2(8) (W.D. Okla.) (signed Dec. 26, 2018).
RECOMMENDATION
Based on the foregoing, the Court finds that Plaintiff's February 13, 2019 Complaint was timely and therefore recommends that Defendant's motion, [Doc. No. 8], be DENIED. Should this Report and Recommendation be adopted, the Court will set a deadline for Defendant's answer.
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by June 28, 2019. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. See Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
ENTERED this 14th day of June, 2019.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE