Opinion
20-CV-5431 (JPC) (RWL)
08-02-2021
KENTA GABRIEL LITTLE, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
CORRECTED REPORT AND RECOMMENDATION: MOTION TO DISMISS
ROBERT W. LEHRBURGER, United States Magistrate Judge.
Plaintiff Kenta Little, proceeding pro se, filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of a decision of the Commissioner Of Social Security (the “Commissioner”) denying his applications for disability insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”) and for supplemental security income (“SSI”) under Title XVI of the Act. The Commissioner has moved to dismiss the action, or, alternatively, for summary judgment, on the basis that Little filed this action over ninth months after the statutory limitations period for doing so had passed. For the following reasons, I recommend that the Commissioner's motion be GRANTED.
Background
In August 2018, Little filed an application for DIB and SSI based on severe mental and physical impairments resulting from, among other things, a traumatic brain injury incurred during his service in the armed forces in 1998. (Social Security Administration Decision (“Decision”), attached to the Complaint, Dkt. 2, at ECF p. 16; Statement by Kenta Little attached to Complaint, at ECF p.26.) After initial denial of his claim, and a hearing, an administrative law judge issued a decision on April 25, 2019, finding Little not disabled and denying Little's claims. (Decision at ECF pp. 10-20.) Little requested review of the 1 decision by the Appeals Council, which the Appeals Council denied by letter dated August 2, 2019. (Notice Of Appeals Council Action (“Appeals Council Notice”), attached as Ex. 2 to Declaration Of Lesha Cowell, dated January 11, 2021 (“Cowell Decl.”), Dkt. 14.)
Lesha Cowell is Chief, Court Case Preparation And Review Branch 4 of the Office Of Appellate Operations, Office Of Disability And Review, Social Security Administration. (Cowell Decl. at 1.) Little's Complaint incorrectly identifies the date of the Appeals Council Notice as July 12, 2019. (Complaint at ECF p. 2.) As is evident from the discussion below, the correct date is more advantageous to Little, although not enough to warrant any different result.
The Appeals Council Notice advised Little of his time to file a civil action challenging the decision. (Appeals Council Notice at 2-3.) The notice stated that Little had the right to commence a civil court action within sixty days of receipt of the notice and that the date of receipt by Little would be presumed to be five days after the date of the notice unless Little could show that she did not receive the notice within the five-day period. (Appeals Council Notice at 3.) The Appeals Council also informed Little that if he could not file a civil action within sixty days, he could ask the Appeals Council in writing to extend his time to file if he had a good reason for needing more time. (Appeals Council Notice at 3.) Little never requested an extension of time to file a civil action. (Cowell Decl. ¶ 3(b).)
Little did not file this action until over eleven months later on July 10, 2020.
On January 19, 2021, the Commissioner moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules Of Civil Procedure, or, alternatively, for summary judgment pursuant to Rule 56, arguing that Little filed his action well beyond the statutory deadline. Little filed a one-page response in opposition (Dkt. 27, “Opp.”), and the Commissioner submitted a reply on May 24, 2021. Little's response, prepared in part 2 with assistance from a legal clinic, is submitted in memorandum form and states in full:
I didn't file on time because I received my final denial letter in August of 2019 however in September of 2019 I suffered a serious depersonalization/derealization episode that caused me to involuntarily escape from reality. During this episode I suffered significant memory loss of specific times, people and events including the 60-day time period to file a complaint. I also lost my sense of self-identity in addition to depression, anxiety and thoughts of suicide. This mental disorder has gotten so bad that I have been hospitalized for it in the past. I underwent a series of medical procedures to help me with my mental disorder and didn't remember the complaint deadline until April of 2020. By this time, communication and access to Social Security had been heavily compromised due to the coronavirus pandemic. I was trying very hard to find the necessary information to support my claim and file a complaint however it took more time due to the lack of access and changes made within the Social Security Office. I was finally able to submit my complaint in July of 2020.(Opp. at 1-2.)
Legal Standards
A. Statute Of Limitations
The exclusive remedy for a plaintiff who seeks judicial review of the Commissioner's final decision is set forth in 42 U.S.C. §§ 405(g)-(h) (DIB), 1383(c)(3) (SSI). See Wong v. Bowen, 854 F.2d 630, 631 (2d Cir. 1988). A plaintiff must commence a civil action within a sixty-day period or “within such further time as the Commissioner of Social Security may allow.” 42 U.S.C. § 405(g). The sixty-day period begins on the date the Appeals Council notice is received, and, absent a “reasonable showing to the contrary, ” a plaintiff is presumed to have received the notice five days after 3 the date of the notice. 20 C.F.R. § 422.210(c); see Wong, 854 F.2d at 631; Borrero v. Colvin, No. 14-CV-5304, 2015 WL 1262276, at *3 (S.D.N.Y. March 19, 2015) (collecting cases). Here, the Appeals Council Notice is dated August 2, 2019, and so Little is presumed to have received the Appeals Council Notice on August 7, 2019.
Section 1383(c)(3), covering SSI, provides that a final determination of the Commissioner as to SSI is “subject to judicial review as provided in [42 U.S.C. § 405(g)] to the same extent as the Commissioner's final determinations under [42 U.S.C. § 405].”
Little's Complaint states that he received the Appeals Council Notice on August 1, 2019. (Complaint at ECF p. 2.) That cannot be correct because the Appeals Council Notice is dated August 2, 2021. As noted earlier, the presumed date of receipt - August 7, 2019 - is more advantageous to Little, but not materially so.
A plaintiff's complaint must be received by the court clerk's office within the sixty-day period. See Zerilli-Edelglass v. New York City Transit Authority, 333 F.3d 74, 78 (2d Cir. 2003). 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 Bowen v. City Of New York, 476 U.S. 467, 478-79, 106 S.Ct. 2022, 2029 (1986); Borrero, 2015 WL 1262276 at *3 (collecting cases). Therefore, “[f]ailure to file a complaint within the statutory limitation most often requires dismissal of the case.” Borrero, 2015 WL 1262276 at *3. 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).
B. Equitable Tolling
The “60-day requirement is not jurisdictional, but rather constitutes a period of limitations, ” and, as such, the limitations period set forth in 42 U.S.C. § 405(g) is subject to traditional equitable tolling principles. Bowen, 476 U.S. at 478, 480, 106 S.Ct. at 2029-30. 4 To qualify for equitable tolling, a plaintiff must “show that ‘[s]he has been pursuing [her] rights diligently' and that ‘some extraordinary circumstance stood in h[er] way.'” Torres v. Barnhart, 417 F.3d 276, 279 (2d Cir. 2005) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S.Ct. 1807, 1814 (2005)). As that 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, 106 S.Ct. at 2031.
For example, in Torres, following receipt of a sixty-day notice, plaintiff Torres immediately contacted the court's Pro Se office to obtain the paperwork necessary to file a court action. Torres filled out the papers the same day he received them and contacted an attorney to make sure he was not making a mistake. The attorney agreed to assist Torres, provided Torres with a retention agreement, and asked Torres to send him the court papers, which he did. The attorney, however, never filed the court action. When, after the passage of the statute of limitations, Torres discovered this, he immediately took steps attempting to remedy the situation by calling the Pro Se office. A representative of the Pro Se office told Torres that he could still file his lawsuit and would have to send a notarized statement explaining why his complaint was late. The next day, Torres filled out a Pro Se complaint, appended a notarized statement, and mailed the package to the court for filing. Torres, 417 F.3d at 277-78. Summing up the situation, the court explained, “a legally-ignorant, linguistically-challenged pro se claimant … did everything possible to try to assert his claim in timely fashion and was only stymied from so doing by 5 being seriously misled by an attorney in whom he placed his trust.” Id. at 280. The court stated that if proven, these facts would be “at least enough to warrant an evidentiary hearing into whether equitable tolling should be invoked.” Id.
In contrast, in the absence of demonstrated diligence or extraordinary circumstances, courts have declined to find equitable tolling, even where plaintiffs missed the sixty-day filing date by as little as one day. See, e.g., Natale v. Commissioner Of Social Security, No. 17-CV-908, 2017 WL 3309734, at *2 (S.D.N.Y. Aug. 2, 2017); Thomas v. Commissioner Of Social Security, No. 16-CV-9247, 2017 WL 3475435, at *3 (S.D.N.Y. June 22, 2017), R. & R. adopted, 2017 WL 3475064 (S.D.N.Y. Aug. 11, 2017); see also Wen Liu v. Mount Sinai School Of Medicine, No. 09-CV-9663, 2012 WL 4561003, at *4 (S.D.N.Y. Sept. 24, 2012) (“Under long-standing Second Circuit authority, ‘in the absence of a recognized equitable consideration, the court cannot extend the limitations period by even one day'”) (quoting Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146 (2d Cir. 1984)). Circumstances that have not justified equitable tolling include, for example, where the claimant asserted poor health; where the claimant asserted that she was “stressed, ” “in pain, ” and “gave the motion to [her] former attorney to respond;” where the claimant asserted illness, theft of identity, and change of address without any proof that these prevented him from complying with the deadline; and where 6 the claimant made “bare assertion[s]” of mental incapacity and receipt of the sixty-day notice later than five days after mailing.
Wong, 854 F.2d at 631.
Twumwaa v. Colvin, No. 13-CV-5858, 2014 WL 1928381, at *4 (S.D.N.Y. May 14, 2014).
Courtney v. Colvin, No. 13-CV-2884, 2014 WL 129051, at *2-3 (S.D.N.Y. Jan. 14, 2014).
Guinyard v. Apfel, No. 99-CV-4242, 2000 WL 297165, at *2-4 (S.D.N.Y. March 22, 2000).
C. Motion To Dismiss
A statute of limitations defense may be asserted on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), provided that it is based exclusively on dates contained in the complaint or appended materials. Rodriguez Ex Rel. J.J.T. v. Astrue, No. 10-CV-9644, 2011 WL 7121291, at *2 (S.D.N.Y. July 25, 2011), R. & R. adopted, 2012 WL 292382, at *1-2 (S.D.N.Y. Jan. 31, 2012). On a motion to dismiss, the court “must accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff.” Jaghory v. New York State Department Of Education, 131 F.3d 326, 329 (2d Cir. 1997). And as Little is proceeding pro se, the Court construes his pleadings “liberally” and interprets them “to raise the strongest arguments that they suggest.” Triestman v. Federal Bureau Of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks omitted).
Discussion
Whether and when Little received the Appeals Council Notice is not in dispute. Nor is the fact that Little filed this action more than nine months after the sixty-day statute of limitations had expired. The only issue before the Court is whether Little has established a basis for equitable tolling. He has not. As set forth above, equitable tolling requires a showing of both diligence in pursuing one's rights and extraordinary circumstances causing the late filing. Torres, 417 F.3d at 279 (quoting Pace v. DiGuglielmo, 544 U.S. at 418); 7 Zerilli-Edelglass, 333 F.3d at 80. Here, the basis for Little's claim of equitable tolling is his claim of mental illness. He claims that his mental illness and the symptoms it caused constitute extraordinary circumstances for his not filing his complaint in a timely fashion. That claim fails for two principal reasons: the vague and conclusory nature of Little's assertions, and the absence of any indicia that Little diligently pursued his rights.
A. Vague And Conclusory Assertions
“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, No. 99-CV-4242, 2000 WL 297165, at *4 (citing Canales v. Sullivan, 936 F.3d 755, 759 (2d Cir. 1991)). At the same time, however a “conclusory and vague claim, without a particularized description … is manifestly insufficient to justify any further inquiry into tolling.” Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000); Guinyard, 2000 WL 297165 at *4 (quoting Boos).
For example, in Boos, the plaintiff asserted that she suffered from paranoia, panic attacks, and depression. The Court found her assertion “conclusory and vague” because she did not offer “a particularized description of how her condition adversely affected her capacity to function generally or in relationship to the pursuit of her rights.” 201 F.3d at 185. See also Muhammad v. Saul, 19-CV-7638, 2020 WL 508901, at *3 (S.D.N.Y. Jan. 31, 2020) (vague assertions of “mental capacity” and homelessness were insufficient to sustain a claim of equitable tolling); Roberts v. Commissioner Of Social Security, 15-CV-6216, 2016 WL 303896, at *2 (S.D.N.Y. Jan. 26, 2016) (insufficient basis for equitable tolling where plaintiff submitted updated letter from clinician stating that plaintiff was 8 unable to meet the deadline to request an extension for court review due to “mental instability and difficulty comprehending”), R. & R. adopted, 15-CV-6215, Dkt. 24 (March 1, 2016).
Little's opposition similarly suffers from fatally vague and conclusory statements. He asserts that he had a “serious depersonalization/derealization episode, ” “escape[d] from reality, ” “lost [his] sense of self-identity, ” became depressed, anxious, and even suicidal. He refers to having been “hospitalized … in the past” but does not say that he was hospitalized during the limitations period. Little also says he “underwent a series of medical procedures to help [him] with [his] mental disorder” but again does not suggest that any of those took place during the limitations period.
Little does assert, however that “[d]uring this episode [the onset of which was sometime in September 2019] I suffered significant memory loss of specific times, people and events including the 60-day time period to file a complaint.” He thus draws a causal connection between his claimed mental illness and his failure to timely file. In some circumstances, that assertion might be enough at least to merit further evidentiary inquiry. Here, however, it does not, because, as discussed next, Little provides no sufficient explanation for his failure to exercise diligence either before or after his episode.
B. No Due Diligence
Little has not come forward with any basis to show that he pursued his rights diligently during the time periods either before or after the time he claims to have forgotten about the 60-day filing deadline. Equitable tolling stops the limitations clock only for the period that the extraordinary circumstances exist. Accordingly, “[e]ven where a petitioner has shown extraordinary circumstances, his request for equitable tolling will still be denied 9 if he has not acted with reasonable diligence throughout the period to be tolled.” Owens v. Keyser, No. 18-CV-11638, 2020 WL 9596014, at *4 (S.D.N.Y. Sept. 25, 2020), R. & R. adopted, 2021 WL 1948339 (S.D.N.Y. May 13, 2021); see also Viti v. Guardian Life Insurance Company Of America, 817 F.Supp.2d 214, 228 (S.D.N.Y. 2011) (equitable tolling “suspends … operation” of statute of limitations, and the “plaintiff bears the burden of demonstrating that he or she acted with reasonable diligence throughout the period she seeks to toll”). Here, nothing in Little's opposition suggests that he exercised diligence throughout the period to be tolled, either before or after his mental breakdown.
Little received the Appeals Council Notice as of August 7, 2019. His opposition states that his episode occurred at some unspecified time in September 2019. At least 24 days elapsed during that period. Nowhere, however, does Little describe anything he did to even begin the process of preparing to file a claim during the entire month of August 2019, or any time in September 2019 prior to onset of the episode. His opposition does not indicate that he began to obtain any necessary forms, consult with the Court's pro se office or a lawyer, review claims from other cases, or draft any portion of a pleading. Nor does Little suggest that he even tried to do any of those things before his episode. In other words, he exercised no effort or diligence during at least the first thirty days after receiving the Appeals Council Notice and its admonition that an action, or a request for extension, had to be filed within sixty days.
Nor does Little set forth anything to show that he was diligent in the period between April 2020, when he remembered the deadline, and July 20, 2020, when he finally filed the complaint. That period alone, at least 81 days, well-exceeded the entire limitations period. Little only vaguely claims that he “was trying very hard to find the necessary 10 information, ” but nowhere states what he purportedly did in that regard. He refers generally to “heavily compromised” communication and access to the Social Security Administration caused by the coronavirus pandemic, but he does not explain how or to what extent any of those issues actually impeded him. And, in the end, Little says only that gathering information “took more time” due to “lack of access” and “changes made within the Social Security Office, ” but he never refers to or describes any efforts that he actually made. Other than the fatally vague and conclusory statement that he “was trying very hard, ” Little offers nothing to indicate that he diligently pursued his rights during the entirety of the time he seeks to have tolled.
In sum, accepting Little's assertions as true, the tolling period due to his mental illness lasted from sometime in September 2019 to April 2020. The statute of limitations ran for at least 24 days before it was suspended and for 81 days after it lifted. At least 105 days thus elapsed outside the tolling period before Little filed the complaint in this action. By any measure, he exceeded the 60-day limitations period. See Adkins v. Warden, 585 F.Supp.2d 286, 300 (D. Conn. 2008) (“the Court examines the petitioner's diligence not only during the time he seeks to have equitably tolled but also during the time up to and including the date of filing”).
The Second Circuit has acknowledged that “Congress intended to be unusually protective of claimants” with respect to social security benefits, and that a “forgiving approach” to the Act's statute of limitations 60-day period “may be appropriate.” Alexander v. Saul, __ F.4th __, __, 2021 WL 2832889, at *10 (2d Cir. July 8, 2021) (internal quotation marks omitted). But even taking such a forgiving approach here does not forestall dismissal. Little has not provided any indicia of diligence exercised either 11 before or after the mental health episode he describes. Accordingly, equitable tolling is not warranted, and Little's case is barred by the 60-day statute of limitations.
Conclusion
For the foregoing reasons, I recommend that the Commissioner's motion to dismiss be GRANTED. The Court commends and acknowledges Mr. Little's sacrifice for his country but must adhere to the applicable legal principles. Nothing herein forecloses Mr. Little from reapplying for benefits for a different period.
Because I recommend granting the Commissioner's motion to dismiss, there is no need to address the Commissioner's alternative ground for summary judgment.
Procedures for Filing Objections
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules Of Civil Procedure, the parties shall have fourteen (14) days to file written objections to this Report And Recommendation. Such objections shall be filed with the Clerk of Court, with extra copies delivered to the Chambers of the Honorable John P. Cronan, 500 Pearl Street, New York, New York 10007, and to the Chambers of the undersigned, 500 Pearl Street, New York, New York 10007. FAILURE TO FILE TIMELY OBJECTIONS WILL RESULT IN WAIVER OF OBJECTIONS AND PRECLUDE APPELLATE REVIEW.
Respectfully Submitted, 12