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finding no record of due diligence or extraordinary circumstances
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10 Civ. 9644 (PAC) (JLC)
07-25-2011
CYNTHIA RODRIGUEZ o/b/o J.J.T., Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.
Copies have been mailed to: Cynthia Rodriguez 870 Southern Blvd., Apt. #7B Bronx, NY 10459 Susan D. Baird Assistant United States Attorney 86 Chambers Street, 3rd Floor New York, New York 10007 Hon. Paul A. Crotty Pro Se Office
REPORT AND RECOMMENDATION
(Non-ECF Case) JAMES L. COTT, United States Magistrate Judge.
To The Honorable Paul A. Crotty, United States District Judge:
Pro se Plaintiff Cynthia Rodriguez ("Rodriguez"), on behalf of her minor child J.J.T., brought this action pursuant to 42 U.S.C. § 405(g) seeking review of the decision of the Commissioner of Social Security (the "Government") that had denied her son Supplemental Security Income benefits. The Government moves to dismiss the Complaint on the ground that it was not timely filed. For the reasons that follow, I recommend that the motion be GRANTED.
I. BACKGROUND
Rodriguez's son J.J.T. has had Type I juvenile diabetes since November 27, 2007. (Complaint filed December 20, 2010 ("Compl.") ¶¶ 4-5 (Dkt. No. 2)). Rodriguez applied for Supplemental Security Income ("SSI") benefits on January 25, 2008, and the application was initially denied on April 11, 2008. (Notice of Decision dated November 4, 2009 ("Decision"), Declaration of Daniel V. Ortiz, dated February 11, 2011 ("Ortiz Decl.") Exhibit 1 ("Ex. 1"), at 4). Rodriguez next requested a hearing, which was held on October 22, 2009. (Id.) On November 4, 2009, an Administrative Law Judge denied Rodriguez's claim and mailed her a copy of the Decision. (Decision, Ortiz Decl. Ex. 1).
The Government submitted the Ortiz Declaration in support of its motion to dismiss. Ortiz is Acting Chief of Court Case Preparation and Review Branch 4 of the Office of Appellate Operations, Office of Disability and Review, Social Security Administration. (Ortiz Decl. at 1).
In light of the Court's determination that the Government's motion is properly made on the basis of Rule 12(b)(6), and not 12(b)(1), see infra pp. 3-4, the Court cannot consider materials outside the Complaint without converting the motion to one for summary judgment under Rule 56. See Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 154-55 (2d Cir. 2006). However, the Court can properly consider the Decision attached to the Ortiz Declaration, which is not part of the Complaint, because Rodriguez had actual notice of the Decision—indeed, it was addressed to her—and the document is integral to her claim in that Rodriguez has relied on the effects of the Decision in drafting her Complaint. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002); see also Int'l Audiotext Network, Inc. v. AT&T, 62 F.3d 69, 72 (2d Cir. 1995) (although court limited to facts as stated in complaint, it may consider documents incorporated by reference without converting motion to one for summary judgment). Furthermore, the Court's consideration of the Decision is proper to the extent that Rodriguez referred to it in the Complaint. See id. at 152 (citations omitted); (Compl. ¶ 6 (alleging "[t]hat the Bureau of Disability Insurance of the Social Security Administration disallowed plaintiff's application")).
Rodriguez then sought review of the Decision, and on September 24, 2010, the Appeals Council sent Rodriguez a letter (the "Council Letter") denying her request for review and informing her that she had 60 days from receipt of the letter to file a civil action. (Council Letter, Compl. Exhibit A ("Ex. A") at 1, 2). The Council Letter further stated that the date of receipt was assumed to be five days after the date of the letter, unless Rodriguez could show that she did not receive it within the five day period. (Id. at 2).
Rodriguez attached the Council Letter to her Complaint, and it is properly considered under Rule 10(c) of the Federal Rules of Civil Procedure. For clarity, when citing to the Council Letter, I will cite to it as "Council Letter, Compl. Ex. A" and use the corresponding page numbers of the three-page letter itself.
Rodriguez, proceeding pro se, filed her Complaint using a Southern District form on December 20, 2010. (Dkt. No. 2). She also submitted a Request to Proceed In Forma Pauperis, which was granted by the Court on January 3, 2011. (Dkt. Nos. 1, 3). Rodriguez's Complaint alleged that the "decision of the administrative law judge was erroneous, not supported by substantial evidence on the record, and/or contrary to the law" and sought a modification of the decision to provide her son the "monthly maximum insurance and/or [SSI] benefits." (Compl. at 3). Rodriguez stated in her Complaint that she had received the Decision on September 30, 2010. (Compl. ¶ 8).
On May 5, 2011, the Government moved to dismiss, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted. (Government Memorandum of Law in Support of Motion to Dismiss ("Memo") at 1 (Dkt. No. 15)). Specifically, the Government contends that Rodriguez's Complaint should be dismissed as untimely pursuant to 42 U.S.C. § 405(g) because the action was not commenced within 60 days after receipt of the Decision. (Id.).
The Court issued an Order on June 6, 2011, directing Rodriguez to serve and file an opposition to the Government's motion to dismiss on or before June 22, 2011. (Dkt. No. 18). The Order further noted that if Rodriguez did not file papers by that date, the Court would consider the motion fully submitted. (Id). The Court did not receive opposition papers from Rodriguez by June 22, or at any time thereafter, and thus the motion is considered fully submitted.
II. DISCUSSION
A. Standard of Review
"A statute of limitations defense, based exclusively on dates contained within the complaint or appended materials, may be properly asserted by a defendant in a Rule 12(b)(6) motion," Gelber v. Stryker Corp., No. 09 Civ. 1322 (PKC), 2011 WL 1483927, at *5 (S.D.N.Y. Apr. 18, 2011) (citing Ghartey v. St. John's Queens Hosp., 869 F.2d 160, 162 (2d Cir. 1989)). Indeed, a motion to dismiss on statute of limitations grounds, as the Government's motion here, "generally is treated as a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), as opposed to under Rule 12(b)(1)." Nghiem v. U.S. Dep't of Veterans Affairs, 451 F. Supp. 2d 599, 603 (S.D.N.Y. 2006), aff'd, 323 F. App'x 16 (2d Cir. 2009) (summary order), cert. denied, 130 S. Ct. 1121 (2010). The reason Rule 12(b)(6) provides "the most appropriate legal basis" for such a motion is "because expiration of the statute of limitations presents an affirmative defense." Id. Accordingly, in deciding the motion, 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 Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997).
B. Rodriguez's Social Security Claim
1. Timeliness of Filing
It is well-established that the United States cannot be sued without its consent. See, e.g., United States v. Navajo Nation, 129 S. Ct. 1547, 1551 (2009); Cnty. of Suffolk, N.Y. v. Sebelius, 605 F.3d 135, 140 (2d Cir. 2010). Rodriguez seeks review of the Decision pursuant to the Social Security Act (the "Act"), 42 U.S.C. § 405(g), which provides the requisite consent to be sued:
Any individual, after any final decision of the Commissioner of Social Security . . . may obtain a review of such a decision by a civil action commenced within 60 days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow . . . .42 U.S.C. § 405(g).
The Act provides that the remedy available under Section 205(g), codified at 42 U.S.C. § 405(g), is exclusive. Specifically, "[n]o findings of fact or decision of the Commissioner of Social Security shall be reviewed by any person, tribunal, or governmental agency except as herein provided." 42 U.S.C. § 405(h).
The Code of Federal Regulations establishes further guidelines regarding the statute of limitations for filing a civil action pursuant to this exclusive remedy provision:
Any civil action . . . must be instituted within 60 days after the Appeals Council's notice of denial of request for review of the presiding officer's decision or notice of the decision by the Appeals Council is received by the individual . . . . [T]he date of receipt of . . . 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). Because the 60-day limit is a statute of limitations, "it is a condition on the waiver of sovereign immunity and thus must be strictly construed." Bowen v. City of New York, 476 U.S. 467, 479 (1986). The Supreme Court has stated that "an interpretation that would allow a claimant judicial review simply by filing and being denied a petition to reopen his claim would frustrate the congressional purpose, plainly evidenced in [the Act], to impose a 60-day limitation upon judicial review of the Secretary's final decision." Califano v. Sanders, 430 U.S. 99, 108 (1977).
Here, the Council Letter informed Rodriguez that she had 60 days after the receipt of the letter to file a civil action. (Council Letter, Compl. Ex. A at 2). It further provided that "[i]f you cannot file for court review within 60 days, you may ask the Appeals Council to extend your time to file." (Id.). Rodriguez stated in her Complaint that she received the Decision on September 30, 2010. (Compl. ¶ 8). Furthermore, Rodriguez does not allege, nor does the record reflect, that she sought an extension of time to file the Complaint. Under the applicable statute of limitations, Rodriguez had until November 29, 2010 to file a complaint. Rodriguez filed the Complaint on December 20, 2010, more than three weeks after the deadline. The Complaint is therefore untimely. See, e.g., Reyes v. Astrue, 07 Civ. 10560 (GBD) (RLE), 2008 WL 4155362, at *1 (S.D.N.Y. Sept. 9, 2008) (dismissing pro se complaint filed two months after expiration of statute of limitations); Johnson v. Comm'r of Social Security, 519 F. Supp. 2d 448, 448-49 (S.D.N.Y. 2007) (dismissing complaint filed nine days after statutory limitation period expired).
Although the Complaint is dated December 15, 2010, it was not filed until December 20, 2010. Nevertheless, either filing date was after the November 29, 2010 deadline, and thus the action is untimely no matter which date is used.
2. Equitable Tolling
Although Rodriguez's Complaint is untimely, the Court can still review it if the doctrine of equitable tolling applies. See Bowen, 476 U.S. at 479. "[C]ases may arise where the equities in favor of tolling the limitations period are 'so great that deference to the [Social Security Administration's] judgment is inappropriate.'" Id. at 480 (quoting Matthews v. Eldridge, 424 U.S. 319, 329 (1976)). To this end, the Supreme Court has held that the application of the doctrine of equitable tolling to the 60-day requirement of § 405(g) is "'fully consistent with the overall congressional purpose' and is 'nowhere eschewed by Congress.'" Bowen, 476 U.S. at 480 (quoting Honda v. Clark, 386 U.S. 484, 501 (1967)).
Equitable tolling "permits courts to deem filings timely where a litigant can show that '[s]he has been pursuing [her] rights diligently' and that 'some extraordinary circumstance stood in [her] way.'" Torres v. Barnhart, 417 F.3d 276, 279 (2d Cir. 2005) (quoting Pace v. DiGuglielmo, 544 U.S. 408 (2005)). Application of the doctrine is appropriate only "in rare and exceptional circumstances in which a party is prevented in some extraordinary way from exercising [her] rights." Zerilli-Edelglass v. N.Y. Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003) (internal citations, quotations, and alterations omitted); see also, e.g., Bowen, 476 U.S. at 481-82 (equitable tolling appropriate where "Government's secretive conduct prevent[ed] plaintiffs from knowing of a violation of rights"); Canales v. Sullivan, 936 F.2d 755, 759 (2d Cir. 1991) (equitable tolling may be warranted for untimely complaint where claimant had mental impairment).
In examining the Complaint in the light most favorable to Rodriguez, I find that there is nothing in the record before the Court to demonstrate that Rodriguez has been diligently pursuing her rights or that any "extraordinary" circumstances caused Rodriguez to file her Complaint after the 60-day period had expired. See Barnhart, 417 F.3d at 279. It is noteworthy that Rodriguez failed to file any opposition to the Government's motion to dismiss—a prime opportunity to assert any extraordinary circumstances that may have contributed to her late filing. See, e.g., Johnson, 519 F. Supp. 2d at 448-49 (granting unopposed motion to dismiss and noting that court "may deem [plaintiff's] claims as abandoned" (citing In re Refco Capital Mkts., Ltd. Brokerage Customer Secs. Litig., No. 06 Civ. 643 (GEL), 2007 WL 2694469, at *6 (S.D.N.Y. Sept. 13, 2007))). Thus, I find no reason in the record that would entitle Rodriguez to equitable tolling.
III. CONCLUSION
For the foregoing reasons, I recommend that the Government's motion to dismiss be GRANTED.
PROCEDURES FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Paul A. Crotty and to the chambers of the undersigned. United States Courthouse, 500 Pearl Street, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Crotty. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010) (citing Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) and Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. If Rodriguez does not have access to cases cited herein that are reported on LexisNexis or Westlaw,
she should request copies from the Government. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009). Dated: New York, New York
July 25, 2011
/s/_________
JAMES L. COTT
United States Magistrate Judge
Copies have been mailed to:
Cynthia Rodriguez 870 Southern Blvd., Apt. #7B Bronx, NY 10459 Susan D. Baird Assistant United States Attorney 86 Chambers Street, 3rd Floor New York, New York 10007 Hon. Paul A. Crotty Pro Se Office