Opinion
03 Civ. 1089 (HB)
September 19, 2003
OPINION ORDER
Plaintiff Starline Duran commenced this lawsuit, pursuant to 42 U.S.C. § 405(g), to obtain judicial review of the determination by the Commissioner of Social Security that her son, Alexander Canfield, was not disabled and entitled to Supplemental Security Income ("SSI") benefits under the Title XVI of the Social Security Act. Defendant moves to dismiss her lawsuit as untimely. For the following reasons, defendant's motion is denied.
I. SUMMARY JUDGEMENT LEGAL STANDARD
Defendant submitted a Rule 56.1 statement and relied on materials outside the pleading, which I assume indicates that her motion is one for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure. Duran similarly relies on evidence outside of her pleading, showing that she treated defendant's motion as one for summary judgment, rather than a motion to dismiss. Accordingly, defendant's motion will be reviewed here under the standard for summary judgment.
Evidence in support of a motion for summary judgment must be reviewed in the light most favorable to the non-movant. FRCP 56(c), Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). If, when "[v]iewing the evidence produced in the light most favorable to the nonmovant . . . a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991). While the burden to demonstrate that no genuine issue of material fact rests solely with the moving party, FDIC v. Giammetti, 34 F.3d 51, 54 (2d Cir. 1994), once the moving party has provided sufficient evidence to support a motion for summary judgment, the opposing party "must set forth specific facts showing that there is a genuine issue for trial" and cannot rest on "mere allegations or denial." Rule 56(e); see Rexnord Holding, Inc. v. Biderman, 21 F.3d 522, 525-36 (2d Cir. 1994). "If the evidence [non-movant] is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted). An "opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
II. BACKGROUND
Duran applied for SSI benefits on behalf of her son, Alexander Canfield. Her son is 11 years old, and according to Duran, "has severe learning disabilities, severe problems with language and several behavior problems." Duran Affid. ¶ 2. On September 23, 1999, an Administrative Law Judge ("ALJ") denied Duran's claim for SSI benefits. Duran applied to the Appeals Council to appeal the ALJ's decision. The Appeals Council issued a letter, fifteen months later, dated December 12, 2001, Aumont Decl. ¶ 3(a), Exh. 1, which Duran received on or around December 17, 2001, see Duran Exh. E (estimating in her amended complaint that she received the letter on "12/17/01 (?)"), stating that her application to appeal was denied. The Pro Se Office received Duran's complaint on February 22, 2002 that commenced this action. Duran Affid. Exh. A. Because the complaint failed to indicate whether Duran had exhausted her administrative remedies, Chief Judge Mukasey issued an Order to Duran to amend her complaint and plead sufficient facts to show that she had exhausted her administrative remedies with the Social Security Administration ("SSA"). Duran Affid. Exh. D. Duran filed an amended complaint pursuant to the Order on March 13, 2003. Duran Exh. E.
III. DISCUSSION
Appeals to the district court from final decisions by the Commissioner of Social Security, or in this case the Appeals Council, must be taken "within sixty days after the mailing to him of notice of such decision." 42 U.S.C. § 405(g). The sixty-day waiver of sovereign immunity, although not jurisdictional, must be strictly construed. Bowen v. City of New York, 476 U.S. 467, 479 (1986). The sixty-day period begins when the claimant receives notice of the final decision, which is presumed to be five days after the date of the notice unless "a reasonable showing to the contrary is made." 20 C.F.R. § 422.210(c). Here, plaintiff filed her complaint pro se on February 22, 2002, see Tolliver v. County of Sullivan, 841 F.2d 41, 42 (2d Cir. 1988) (pertinent filing date for a pro se plaintiff who is proceeding in forma pauperis is the date of receipt by the Pro Se Clerk), approximately 67 days after Duran is presumed to have received her notice. Although Duran acknowledges that the SSA regulation entitles defendant to the five-day receipt of notice presumption, she argues that "no presumption exists that [defendant actually] sent the notice." PL Br. at 2. Unfortunately, Duran has already emphatically stated that she in fact received the notice some time before the end of 2001. Duran Affid. ¶¶ 6, 11. Duran can not, in good faith, argue that defendant must now come forward with further proof that the notice of the SSA's final decision was sent.
Duran contends that she has, in any event, presented sufficient evidence to rebut the presumption that she did not receive the notice within the five days, and I agree. Duran's counsel compiled a list of twenty-nine notices sent by defendant. Bowes Decl. Exhs. B, C. Based on the data, notices arrived about 8 days after the notice date, three days past the SSA's regulatory presumption. Even if I excluded the most egregious example from my calculation, in which the claimant did not receive his or her notice until 74 days after the notice date from the Appeals Council, claimants on average failed to receive notice from the Appeals Council until about 6 days after the notice date, again beyond the five-days that the SSA presumes in its regulations. In over one out of six cases, the claimant received their notice 10 days after the notice date or later. Given that the mailing of the notice to Duran took place at Christmas time, notorious for late mail deliveries, coupled with the data presented by Duran's counsel, I am satisfied that Duran has made a "reasonable showing to the contrary" that she did not receive her notice within the number of days presumed by the SSA. Having successfully rebutted the regulatory presumption, the burden shifts to defendant to prove that Duran "received actual notice more than 60 days prior to filing the complaint in district court." Matsibekker v. Heckler, 738 F.2d 79, 81 (2d Cir. 1984). Here, defendant proffers no evidence to show that Duran received the Appeals Council's notice before December 25, 2002, i.e., more than 60 days before the filing date of her complaint. Accordingly, defendant's motion to dismiss the complaint on the basis of the statute of limitations is denied.
IV. CONCLUSION
For the foregoing reasons, defendant's motion for summary judgment is denied.
SO ORDERED