Opinion
23-CV-4554 (JMF) (BCM)
01-10-2024
WENDYZ RODRIGUEZ, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
TO THE HON. JESSE M. FURMAN
REPORT AND RECOMMENDATION
BARBARA MOSES, UNITED STATES MAGISTRATE JUDGE.
Plaintiff Wendyz Rodriguez brought this action pursuant to § 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g), seeking judicial review of a final determination of the Commissioner of Social Security (the Commissioner) terminating her Disability Insurance Benefits (DIB). Now before me for report and recommendation (see Dkt. 7) is the Commissioner's unopposed motion (Def. Mot.) (Dkt. 9) to dismiss plaintiff's claims as time-barred. Because plaintiff did not file her Complaint within the limitations period required by the Act, the motion should be granted and this action should be dismissed.
Plaintiff's first name, according to the signature on her IFP application (Dkt. 2) and her underlying administrative records, is spelled "Wendyz." The Clerk of Court will be directed to amend the caption of this action accordingly.
I. BACKGROUND
In earlier proceedings before the Social Security Administration (SSA), plaintiff was found disabled as of November 20, 2006, and granted DIB. See Declaration of Lesha Cowell (Cowell Decl.) (Dkt. No. 24), ¶ 3(a) & Ex. 1 (ALJ Op.), at 1. In a written decision dated November 16, 2021, an Administrative Law Judge found that as of May 10, 2019, plaintiff was no longer disabled. ALJ Op. at 6. Plaintiff timely requested review by the Appeals Council, which denied her request on May 3, 2022, making the ALJ's determination "the final decision of the Commissioner of Social Security in your case." Cowell Decl. ¶ 3(a) & Ex. 2 (Appeals Council Notice), at 1. The Appeals Council Notice, mailed to plaintiff at an address in the Bronx, New York, advised her that she had the right to seek judicial review of the agency decision by "filing a complaint in the United States District Court for the district in which you live." Appeals Council Notice at 2. It also explained that plaintiff had "60 days to file a civil action (ask for court review)" and that "[t]he 60 days start the day after you receive this letter. We [will] assume you received this letter 5 days after the date on it unless you show us that you did not receive it within the 5-day period." Id. at 3.
Cowell is Chief of Court Case Preparation and Review Branch 4 of the Office of Appellate Operations within the SSA. Cowell Decl. at 1. Her declaration serves primarily to put the relevant portions of the agency's administrative record before the Court.
"A civil action is commenced by filing a complaint with the court." Fed.R.Civ.P. 3. Plaintiff's complaint is dated May 30, 2023 - more than one year after the Appeals Council Notice was mailed to her. See Compl. (Dkt. 1) at 3. The Clerk's Office received and processed the Complaint on the same day. Id. at 1. In her pleading, plaintiff confirms that she resides at the same Bronx address used by the SSA, Compl. at 3, but says nothing about when she received the Appeals Council Notice or why she failed to file her case within 60 days.
Under this Court's Standing Order 22-MISC-329 (Dkt. 3), the Commissioner had 60 days to serve an answer "or make a motion under Fed.R.Civ.P. 12." On July 28, 2023, the Commissioner requested an extension of her time to answer. See Def. Letter-Mot. (Dkt. 16) at 12. Although plaintiff did not consent, the Court granted the request. (Dkt. 18.) On August 10, 2023, the Commissioner filed the motion now before me, requesting that this action be dismissed as untimely pursuant to Rule 12(b)(6) or, in the alternative, Rule 56 of the Federal Rules of Civil Procedure. Def. Mot. at 1-2. The motion is supported by a Memorandum of Law (Dkt. 20); the Cowell Declaration and its exhibits (Dkt. 24); a Statement of Material Facts pursuant to Local Rule 56.1 (Dkt. 21); and Notices to Pro Se Litigants in the forms prescribed by Local Civil Rules 12.1 (Dkt. 22) and 56.2 (Dkt. 23), warning plaintiff, among other things: "If you do not respond to the motion on time with affidavits and/or documents contradicting the facts asserted by the defendant, the Court may accept defendant's facts as true. Your case may be dismissed and judgment may be entered in defendant's favor without a trial." (Dkt. 22 at 2; Dkt. 23 at 2). The Commissioner served plaintiff with the motion papers on the same day they were filed, by mailing them to her Bronx address. (See Dkt. 25.)
One of the Assistant United States Attorneys representing the Commissioner in this action "spoke to Plaintiff in Spanish regarding Defendant's extension request on July 20, 2023. Plaintiff indicated that she does not consent to this extension request because she disagrees with the agency's decision, and wishes for a speedy resolution of the case." Def. Letter-Mot. at 2.
On receipt of the Commissioner's moving papers, the Court sua sponte extended plaintiff's deadline to respond to the motion to September 11, 2023. (Dkt. 26.) Plaintiff did not respond within that period. On September 18, 2023, the Court issued a second order sua sponte extending plaintiff's response deadline, this time giving her a deadline of October 2, 2023, and advising her that in the absence of timely opposition the motion would be treated as unopposed. (Dkt. 27.) Plaintiff still did not respond.
II. DISCUSSION
A. Statute of Limitations
A claimant may obtain review of a final decision of the Commissioner by filing a civil action in the federal judicial district where the claimant resides. 42 U.S.C. § 405(g); 20 C.F.R. § 422.210(b). By statute, the action must be 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." 42 U.S.C. § 405(g). By regulation, the Commissioner presumes that a notice arrives five days after the date it bears and measures a claimant's time to file from that date. 20 C.F.R. § 422.210(c). Absent an extension, therefore, a social security claimant "has 65 days from the date of a final decision notice to file suit," Velez v. Apfel, 229 F.3d 1136, 1136 (2d Cir. 2000), unless she can make a "reasonable showing" that she did not receive the notice by the presumptive date of receipt. Liranzo v. Astrue, 2010 WL 626791, at *1 (E.D.N.Y. Feb. 23, 2010), aff'd sub nom. Liranzo v. Comm'r of Soc. Sec., 411 Fed.Appx. 390 (2d Cir. 2011) (summary order); accord Matsibekker v. Heckler, 738 F.2d 79, 81 (2d Cir. 1984).
Because the limitations period is "a condition to the government's waiver of sovereign immunity," it must be "strictly construed." Liranzo, 2010 WL 626791, at *1 (citing Bowen v. City of New York, 476 U.S. 467, 479 (1986)). "Failure to file a complaint within the statutory limitation most often requires dismissal of the case, even where the delay is minor and the plaintiff is pro se." Borrero v. Colvin, 2015 WL 1262276, at *3 (S.D.N.Y. Mar. 19, 2015); accord Marquez v. Comm'r of Soc. Sec., 2013 WL 3344320, at *4 (S.D.N.Y. July 2, 2013) (collecting cases).
B. Applicable Rule
"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." Rodriguez ex rel. J.J.T. v. Astrue, 2011 WL 7121291, at *2 (S.D.N.Y. July 25, 2011) (quoting Gelber v. Stryker Corp., 2011 WL 1483927, at *5 (S.D.N.Y. Apr. 18, 2011)), report and recommendation adopted, 2012 WL 292382, at *1-2 (S.D.N.Y. Jan. 31, 2012). Thus, if "the untimeliness of the lawsuit appears on the face of the complaint," or is apparent from documents attached to the complaint by the plaintiff, the suit may be dismissed pursuant to Rule 12(b)(6). Hall v. Colvin, 2015 WL 13723896, at *3 (S.D.N.Y. Aug. 5, 2015), report and recommendation adopted, 2017 WL 4339664 (S.D.N.Y. Sept. 29, 2017); see also Suarez v. Comm'r of Soc. Sec., 2016 WL 8710485, at *2 (S.D.N.Y. Nov. 18, 2016) (dismissing action pursuant to Rule 12(b)(6) where admissions in plaintiff's complaint showed that it was filed "three days after the statute of limitation expired"), report and recommendation adopted sub nom. Suarez v. Colvin, 2017 WL 1283847 (S.D.N.Y. Apr. 5, 2017); Schoon v. Massanari, 2001 WL 1641241, at *2 (S.D.N.Y. Dec. 21, 2001) (dismissing action pursuant to Rule 12(b)(6) where "the complaint on its face indicates that [it] was filed long after the 60-day time limit contained in section 405(g)").
In some cases, however (including this one), the Commissioner is required to submit portions of the administrative record in order to establish the untimeliness of the lawsuit - either because (as in this case) the complaint is silent as to when the plaintiff received the notice that triggered the running of the limitations period, or because it alleges facts which, if true, would show that the action was timely filed. In such a case, some courts within our Circuit treat the Commissioner's motion to dismiss as one for summary judgment. See, e.g., Hall, 2015 WL 13723896, at *3 (analyzing motion pursuant to Rule 56 and granting summary judgment for defendant where "plaintiff allege[d] in his complaint that he received the Appeals Council notice on August 15, 2014," which was "consistent with timeliness," but failed to overcome the 5-day receipt presumption with admissible evidence); Rodriguez v. Astrue, 2009 WL 890052, at *2 n.7 (S.D.N.Y. Apr. 1, 2009) ("Because the parties have relied on materials outside of the pleadings, this motion is most appropriately treated as one for summary judgment, rather than as a motion to dismiss for failure to state a claim.").
Other courts proceed under Rule 12(b)(6), invoking the familiar rule that documents referenced in or integral to a plaintiff's complaint, as well as judicially noticeable documents, may be considered on a motion to dismiss without converting it into a motion for summary judgment.
A complaint is "deemed to include any written instrument attached to it as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are 'integral' to the complaint." Sierra Club v. Con-Strux, LLC, 911 F.3d 85, 88 (2d Cir. 2018) (quoting L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011) (alteration omitted). The court "may also consider matters of which judicial notice may be taken" without converting a Rule 12(b)(6) motion into one for summary judgment. Kramer v. Time Warner Inc., 937 F.2d 767, 773 (2d Cir. 1991); see also Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 426 (2d Cir. 2008) ("Matters judicially noticed by the District Court are not considered matters outside the pleadings."). It is well-settled that the court may take judicial notice of the existence and content of local, state, and federal agency records. See, e.g., Combier-Kapel v. Biegelson, 242 Fed.Appx. 714, 715 (2d Cir. 2007) (district court did not err in considering portions of administrative record before Board of Education, because "such documents were subject to judicial notice and were integral to the complaint"); Joglo Realties, Inc. v. Seggos, 229 F.Supp.3d 146, 151 (E.D.N.Y. 2017) (granting motion to dismiss after taking judicial notice of the administrative record in state agency proceeding); Avgerinos v. Palmyra-Macedon Cent. Sch. Dist., 690 F.Supp.2d 115, 124 & n.7 (W.D.N.Y. 2010) (granting motion to dismiss after taking judicial notice of relevant EEOC filings).
See, e.g., Miller v. Saul, 2020 WL 5899520, at *3-5 (S.D.N.Y. Jan. 10, 2020) (recommending dismissal of action as time-barred pursuant to Rule 12(b)(6) after taking judicial notice of relevant portions of SSA record, including grant of extension by Appeals Council), report and recommendation adopted, 2020 WL 4365284 (S.D.N.Y. July 30, 2020); Thomas v. Comm'r of Soc. Sec., 2017 WL 3475435, at *3 (S.D.N.Y. June 22, 2017) (dismissing action as time-barred pursuant to Rule 12(b)(6) after considering portions of the SSA's administrative record attached to declaration of SSA custodian), report and recommendation adopted, 2017 WL 3475064 (S.D.N.Y. Aug. 11, 2017); Rodriguez v. Astrue, 2011 WL 7121291, at *1 n.2 (S.D.N.Y. July 25, 2011) (relying on underlying ALJ decision to dismiss action as untimely pursuant to Rule 12(b)(6), "because [plaintiff] had actual notice of the Decision - indeed, it was addressed to her - and the document is integral to her claim"), report and recommendation adopted, 2012 WL 292382 (S.D.N.Y. Jan. 31, 2012).
In this case, the Commissioner's limitations argument hinges on two material facts: (i) the May 3, 2022 Appeals Council Notice, coupled with the 5-day presumption set forth at 20 C.F.R. § 422.210(c), required plaintiff to commence this action by July 7, 2022, but (ii) her Complaint was not filed until May 30, 2023. This Court can take judicial notice of the Appeals Council Notice, which is part of the SSA's underlying administrative record. See Combier-Kapel, 242 Fed.Appx. at 715. Therefore, the pending motion may be adjudicated pursuant to Rule 12(b)(6). See Miller, 2020 WL 5899520, at *4 (dismissing action as time-barred pursuant to Rule 12(b)(6) because, even though the complaint was dated and postmarked within the limitations period, it was received and processed by the court four days past the filing deadline); Thomas, 2017 WL 3475435, at *3 (dismissing pursuant to Rule 12(b)(6) where complaint was received and processed "one day after [plaintiff's] time expired"); Smith v. Comm'r of Soc. Sec., 2010 WL 5441669, at *1-2 (E.D.N.Y. Dec. 23, 2010) (dismissing pursuant to Rule 12(b)(6) where complaint was filed "sixty-nine days after the Appeals Council's decision").
In the alternative, the motion may be adjudicated pursuant to Rule 56, because there is no "genuine dispute" - indeed, because plaintiff did not respond to the Commissioner's motion, no dispute at all - as to the material facts. See Rule 56.1 Statement (Dkt. 21); Hall, 2015 WL 12723896, at *4 (quoting Fed.R.Civ.P. 56(a)) ("a court may grant summary judgment if 'the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law'").
C. This Action is Time-Barred
Plaintiff does not dispute that she received the Appeals Council Notice within five days of May 3, 2022, making her Complaint due on or before July 7, 2022. Nor does any evidence in the record rebut the presumption. See Johnson v. Comm'r of Soc. Sec., 519 F.Supp.2d 448, 449 (S.D.N.Y. 2007) (dismissing the pro se action as time-barred because there was "nothing on record to rebut the presumption of receipt of the notice [] within five days after its issuance"); Hall, 2015 WL 13723896, at *4 ("to rebut the presumption that the Commissioner's final decision was received within five days of its purported mailing date . . . [s]ome affirmative evidence must be presented that indicates that the actual receipt occurred after the presumed five-day period"). Therefore, plaintiff's Complaint - dated, signed, and filed on May 30, 2023, more than one year after the presumptive date on which she received the Appeals Council Notice - was untimely.
D. Equitable Tolling Does Not Apply
"Federal courts have limited authority to toll the statute of limitations under the doctrine of equitable tolling." Velez, 229 F.3d at 1136. The Second Circuit has held that equitable tolling may be warranted where a plaintiff can show that she "has been pursuing his rights diligently' and that 'some extraordinary circumstance stood in his way." Torres v. Barnhart, 417 F.3d 276, 279 (2d Cir. 2005) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). "Plaintiff bears the burden of establishing the exceptional circumstances that warrant equitable tolling." Davila v. Barnhart, 225 F.Supp.2d 337, 339 (S.D.N.Y. 2002). However, plaintiff has not requested equitable tolling, and does not identify any extraordinary circumstance to excuse her delay. As noted above, she submitted no opposition to the Commissioner's motion, and offers no explanation for why she was late in filing her Complaint or whether she took any steps to diligently pursue her rights.
III. CONCLUSION
For the reasons set forth above, I respectfully recommend that the Commissioner's motion be GRANTED and that plaintiff's case be dismissed.
The Clerk of Court is respectfully directed to correct the spelling of plaintiff's name in the caption. See n.1, supra. She is Wendyz Rodriguez.