Opinion
04 Civ. 3200 (AJP).
October 22, 2004
OPINION AND ORDER
By Report and Recommendation dated May 12, 2004, I sua sponte recommended dismissal of this action because plaintiff Bartow did not commence it within 60 days of receipt of the Social Security Administration ("SSA") Appeals Council letter. See Bartow v.Commissioner of Soc. Sec., 04 Civ. 3200, 2004 WL 1057783 at *1 (S.D.N.Y. May 12, 2004) (Peck, M.J.). In her complaint, Bartow acknowledged that she was filing "`way past the deadline,'" but said she was "depressed." Id. Ms. Bartow filed an objection to my Report and Recommendation, stating that she "was depressed, [and is] on 19 different medications." (Dkt. No. 6.) In light of those (vague) representations, Judge Swain re-referred the case to me "for further inquiries and proceedings as appropriate." (Dkt. No. 7.)
The Court directed Bartow to serve the SSA and the Unite States Attorney's Office (Dkt. No. 8), which she did (see Dkt. No. 9). The Court held a status conference with Ms. Bartow and defense counsel on July 16, 2004. (See Dkt. Nos. 10, 14.) Ms. Bartow reiterated that she "was depressed" because she "was trying to get on SSI ever since '96" and she kept getting turned down. (Dkt. No. 14: 7/16/04 Conf. Tr. at 3.) She added that she takes "19 different medications, and there are side effects to all of these. Sometimes [she] can't even function right." (Id. at 4.) Ms. Bartow stated that the medications she currently takes are the same as she was taking and are in the SSA administrative record. (Id.)
On August 20, 2004, the government moved to dismiss or for summary judgment on the ground that Bartow's complaint was time barred. (Dkt. Nos. 12-13.)
Plaintiff Bartow submitted nine pages of medical records and unsworn letters from friends. (Dkt. No. 15.) The medical documents indicate treatment for arthritis, hypertension, back pain and other physical ailments, but no medical indication of depression or mental illness. (Id.) Ms. Bartow asked for more time to file additional papers opposing the government's motion, and he Court granted her extension request, making her papers due October 4, 2004. (Dkt. No. 16.) Now, more than two weeks after that deadline, the Court has not received any additional submissions from Ms. Bartow.
An August 2004 "Addendum" stamped with the name of Dr. Balzora states that "Patient also stated that around April 2004 she had felt depressed." (Id.) Ms. Bartow filed her complaint on April 8, 2004, but it was due no later than March 11, 2004. Thus, this "addendum," even if the Court could consider it, is insufficient to show that Bartow was medically unable to file her complaint in a timely manner.
ANALYSIS
The parties have consented to decision of this action by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 11.)
My original Report and Recommendation, familiarity with which is assumed, cited the 60 day provision in 42 U.S.C. § 405(g), and concluded:
While this time-limit is not jurisdictional, it does constitute a period of limitations. Dismissal of such actions brought after the sixty day period thus is appropriate.Bartow v. Commissioner, 2004 WL 1057783 at *1 (citations omitted). (See also cases cited in Dkt. No. 13: Govt. Br. at 4-5.) My Report and Recommendation also noted the possibility of "equitable tolling" in "rare cases":
"If a claimant alleges that incapacity due to mental impairment during the 60-day limitations period impeded her ability to seek judicial review in a timely manner, the district court should afford the claimant the opportunity to present evidence buttressing this claim." Guinyard v. Apfel, 2000 WL 297165 at *4 (citing Canales v. Sullivan, 936 F.3d 755, 759 (2d Cir. 1991)). "However, a `conclusory and vague claim, without a particularized description . . . is manifestly insufficient to justify any further inquiry into tolling.'" Guinyard v. Apfel, 2000 WL 297165 at *4 (quoting Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000)). The sole excuse Bartow offered for filing late — that she was "depressed" (see fn.1 above) — thus does not constitute one of the "rare cases" that warrant equitable tolling. See, e.g., Guinyard v. Apfel, 2000 WL 297165 at *2; Sykes v. Apfel, 97 Civ. 7696, 1998 WL 338104 at *4 (S.D.N.Y. June 24, 1998) ("According this pro se plaintiff's complaint the close and careful reading to which it is entitled, the plaintiff has failed to identify any circumstance that would justify equitable tolling of the statute of limitations in this case. Therefore the complaint must be dismissed because it is time barred under the 60-day statute of limitations in Section 405(g).").Bartow v. Commissioner, 2004 WL 1057783 at *1 n. 2.
The Court has reviewed the ALJ's decision in this case, which refers only to physical problems including low back pain, bilateral knee disorders, asthma and hypertension. (Dkt. No. 13: Herbst Aff. Ex. 1: ALJ Decision at 2-8.) The ALJ concluded that those ailments permit Bartow to perform sedentary work. (Id. at 7-8.) The Court is not reviewing the validity of the ALJ's findings in that regard. What is significant is that there is no reference in the ALJ's eight page decision to "depression" or any other mental or physical problems caused by an interaction of Bartow's medications.
Ms. Bartow provided the Assistant United States Attorney with a "handwritten list of her current medications and copies of printouts concerning medications from her pharmacy." (Dkt. No. 13: Gura Aff. ¶ 4 Ex. B.) Some of the medicines list side effects of "drowsiness" or "tiredness," but none identify depression as a side effect. (Gura Aff. Ex. B.) As the Government's brief correctly summarizes her medications:
The information provided for one of the drugs, Premarin (generic name: conjugated estrogen) warns to contact your doctor immediately "if you experience mental/mood changes (e.g., severe depression . . .)." There is no indication, however, that Ms. Bartow ever saw a doctor for "depression."
A review of plaintiff's medications reveals that they are commonly prescribed treatments for asthma (Singulair, Albuterol, Monopril, Flovent, Serevent), hypertension (Clondine, Norvasc, Doxazosin, Hydrochlorthiaz), joint pain (acetaminophen, Celebrex), and high cholesterol (Pravachol, Lipitor). See Declaration of John E. Gura, Jr. Exhibit B.² While the printouts supplied by plaintiff indicate that her medications may produce certain side effects, there is no proof that plaintiff actually experienced any adverse symptoms from her medications. Moreover, none of the medication printouts supplied by plaintiff indicates that any of her medications are used for the treatment of depression or any other mental condition. Accordingly, there is no basis for equitable tolling of he statute of limitations, and the complaint should be dismissed as time-barred.
² Plaintiff also took MVI (a multivitamin), a calcium supplement, Premarin (a female hormone), and used Lac-Lotion to treat her dry skin.
(Dkt. No. 13: Govt. Br. at 6-7 n. 2.) The Court agrees.
The Court also notes that to the extent Ms. Bartow has asserted that she had some difficulty in figuring out how to bring her federal complaint, that provides no basis for equitable tolling: the Appeals Council's letter clearly explains the process. (See Dkt. No. 13: Herbst Aff. Ex. 2: Appeals Council Letter at 2-3.)
Ms. Bartow was on many medications, and may have been "depressed" — in the layman's sense, not the clinical sense — that she was not being given Social Security SSI benefits. But she has not established that any medical or mental issue prevented her from filing her federal complaint within the 60 days allowed by law, nor any basis for equitable tolling.
CONCLUSION
Ms. Bartow's action is dismissed since it was not commenced within 60 days of receipt of the Appeals Council's letter, and she has not met her burden of proving any basis for equitable tolling. The Clerk of Court shall enter judgment dismissing this action and notify Ms. Bartow of her right to appeal to the Second Circuit.
SO ORDERED.