Opinion
No. 5:18-CV-69-FL
08-09-2018
SANDRA STROMDAHL, Plaintiff/Claimant v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
This matter is before the court on Defendant's Motion to Dismiss [DE-11] for failure to state a claim upon which relief can be granted. This matter has been referred to the undersigned for memorandum and recommendation in accordance with 28 U.S.C. § 636(b)(1)(B). Claimant has responded to the motion [DE-14], and the pending motion is ripe for recommendation to the District Court. For the following reasons, it is recommended that the case be dismissed.
I. STATEMENT OF THE CASE
On February 21, 2018, Claimant Sandra Stromdahl ("Claimant") initiated this action against Defendant alleging that she was wrongfully denied a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act. Compl. [DE-5] ¶ 1. An Administrative Law Judge ("ALJ") denied Claimant's application for disability and DIB on April 13, 2017. Decl. of Nancy Chung ("Chung Decl.") [DE-12-1] ¶ (3)(a). Claimant requested review of the ALJ's decision by the Appeals Council, and on November 16, 2017, the Appeals Council mailed to Claimant notice of its denial of her request for review. Id.; Ex. 2 [DE-12-1] at 21-23. The notice explained that the Appeals Council found no reason to review the ALJ's decision, making that decision the "final decision" in Claimant's case. Ex. 2 [DE-12-1] at 21. The notice informed Claimant further that she had 60 days to file a civil action in federal district court to seek judicial review. Id. at 22. The notice advised Claimant further that the 60-day period commences the day after she received the letter and that, unless she shows otherwise, it is assumed Claimant received the letter 5 days after the date indicated on the letter. Id. Additionally, the notice informed Claimant that she could ask the Appeals Council for an extension of the filing deadline, but required that the request be in writing and include a "good reason." Id.
On January 22, 2018, the last day of the 60 day period, Claimant requested that the Appeals Council extend the deadline, stating that she was "still working on her appeals paperwork for filing in district court." Compl. [DE-5] at 4; Chung Decl. [DE-12-1] ¶ (3)(b). While Claimant's request for additional time to file a civil action was pending before the Appeals Council, on February 27, 2018, Claimant filed a complaint in this court. Chung Decl. [DE-12-1] ¶ (3)(b), (c). According to the complaint, Claimant made a timely request to the Appeals Council for an extension of time in which to file her civil action in order to secure appellate counsel. Compl. [DE-5] at ¶ 6.
On March 27, 2018, the Appeals Council denied Claimant's request for an extension of time to file a civil action, on the grounds that "[t]he information provided, without more, does not establish good cause." Chung Decl. [DE-12-1] ¶ (3)(b); Ex. 4 [DE-12-1] at 29. On May 3, 2018, in lieu of filing an answer, Defendant filed a motion to dismiss Claimant's Complaint on the grounds that her Complaint was untimely. [DE-11]. Claimant did not respond to the motion. On July 12, 2018, the court issued notice that Defendant's motion would be converted to one for summary judgment, where it presented for consideration matters outside the pleadings, and Claimant was provided an opportunity to present material pertinent to the motion. July 12, 2018 Text Order. On July 18, 2018, Claimant filed a memorandum in opposition to the motion. [DE-14].
II. STANDARD OF REVIEW
A. Determination of the Proper Standard of Review
Defendant argues Claimant's complaint should be dismissed as untimely because it was filed more than 60 days after Claimant's receipt of the final decision of the Commissioner. While Defendant does not expressly state under what provision of the Federal Rules of Civil Procedure it seeks to dismiss Claimant's complaint, Defendant contends "[p]laintiff's complaint fails to state a claim upon which relief can be granted," and the court thereby presumes Defendant intended to pursue dismissal under Rule 12(b)(6). Def.'s Mem. [DE-12] at 3.
In support of her motion, Defendant submitted documents relating to the date the Appeals Council Notice was sent to and/or received by Claimant, including a declaration of Nancy Chung, an official with the Social Security Administration. [DE-12-1]. Because these documents contain information not referenced in the complaint, they are not appropriately considered on a Rule 12(b)(6) motion. See Derosa v. Colvin, No. 5:14-CV-414-FL, 2014 WL 5662771, at *2 (E.D.N.C. Nov. 4, 2014) (converting the Commissioner's Rule 12(b)(6) motion to one for summary judgment under Rule 56, where the Commissioner submitted the declaration of a Social Security Administration employee in support of a 12(b)(6) motion to dismiss an appeal as untimely) (citation omitted). "Rather, the Commissioner's motion must be deemed one brought for summary judgment under Rule 56." Id. (citing Triplett v. Heckler, 767 F.2d 210, 211-12 (5th Cir. 1985) (holding that the district court should have converted the Commissioner's 12(b)(6) motion to dismiss a Social Security appeal as untimely to one for summary judgment under Rule 56 because it considered material outside the pleadings)). The parties were provided notice of the court's intent to convert Defendant's motion and "a reasonable opportunity to present all the material that is pertinent to the motion," Derosa, 2014 WL 5662771, at *2 (quoting Fed. R. Civ. P. 12(d)), and Claimant responded on July 18, 2018. [DE-13, 14]. Accordingly, the court will proceed to consider Defendant's motion under Rule 56.
B. Summary Judgment Standard
Summary judgment is appropriate where "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." Fed. R. Civ. P. 56(a). The party seeking summary judgment bears the initial burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movant has met its burden, the nonmoving party then must affirmatively demonstrate, with specific evidence, that there exists a genuine issue of material fact requiring trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Only disputes between the parties over facts that might affect the outcome of the case properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The non-moving party is not permitted to rest on conclusory allegations or denials, and a "mere scintilla of evidence" will not be considered sufficient to defeat a summary judgment motion. Id. at 252. "[A]t the summary judgment stage the [court's] function is not [itself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249. In determining whether there is a genuine issue for trial, "evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in [the non-movant's] favor." Id. at 255 (citation omitted); see also United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) ("On summary judgment the inferences to be drawn from the underlying facts contained in [affidavits, attached exhibits, and depositions] must be viewed in the light most favorable to the party opposing the motion.").
III. ANALYSIS
Defendant contends Claimant's complaint should be dismissed because Claimant did not file for judicial review within 60 days as required by Section 205(g) of the Social Security Act, as amended 42 U.S.C. § 405(g), and there are no circumstances to justify equitable tolling. Def.'s Mem. [DE-12] at 2-6. Claimant does not contest that the complaint was untimely filed, but rather asks the court to apply equitable tolling, arguing that the Appeals Council's decision to deny her extension request was arbitrary, she did not "sit on her rights," and Defendant cannot show harm. Pl.'s Resp. [DE-14] at 1-2.
Section 405(g) of the Social Security Act allows a Claimant to seek review of a final decision of the Commissioner of Social Security by bringing a civil action "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). Federal regulations further provide,
Any party to the Appeals Council's decision or denial of review . . . may request that the time for filing an action in a Federal district court be extended. The request must be in writing and it must give the reasons why the action was not filed within the stated time period. . . . If you show that you had good cause for missing the deadline, the time period will be extended.20 C.F.R. § 404.982. The relevant "good cause" considerations include the circumstances preventing a claimant from making a timely request, whether the Commissioner's actions misled the claimant, whether the claimant did not understand the requirements of the Act or other relevant authority, and whether the claimant had any physical, mental, educational, or linguistic limitations preventing the timely filing of a request or from understanding or knowing about the need to file a timely request for review. 20 C.F.R. § 404.911(a). The regulation also provides a non-exhaustive list of examples of circumstances that may demonstrate good cause. Id. § 404.911(b).
The Supreme Court has held that the 60-day statute of limitations is subject to equitable tolling and is not jurisdictional. See Bowen v. City of N.Y., 476 U.S. 467, 478 (1986). In the majority of cases, it is the Commissioner who should make the determination whether to extend the 60-day time period. Id. at 480. However, courts may act "where the equities in favor of tolling the limitations period are 'so great that deference to the agency's judgment is inappropriate.'" Id. at 480 (quoting Mathews v. Eldridge, 424 U.S. 319, 330 (1976)). The Court found this to be the case in Bowen, where the "Government's secretive conduct prevent[ed] plaintiffs from knowing of a violation of rights." Id. at 481 (citation omitted). The Court, though, characterized Bowen as the "rare case" in which tolling " does not undermine the purpose of the 60-day limitations period when viewed in connection with the underlying statute." Id.
The Fourth Circuit has similarly cautioned that tolling the limitations period "will rarely be appropriate," but has allowed equitable tolling in rare or exceptional circumstances, such as when the denial of disability was based on a "systematic, unpublished policy that denied benefits in disregard of the law." Hyatt v. Heckler, 807 F.2d 376, 378-81 (4th Cir. 1986). Concordantly, this court has also considered the following circumstances where equitable tolling may be appropriate in social security benefits cases: (1) where the defendant actively misled the claimant; (2) where the claimant has been prevented from asserting her rights in some extraordinary way; or (3) where the claimant has timely asserted her rights, but has mistakenly done so in the wrong forum. See Carter v. Astrue, No. 7:11-CV-121-FL, 2012 WL 5949763, at *3 (E.D.N.C. Nov. 6, 2012) (citing Cardyn v. Comm'r of Social Security, 66 Fed. App'x. 394, 397 (3d Cir. 2003)), adopted by 2012 WL 6005758 (E.D.N.C. Nov. 28, 2012); see also Ratliff v. Colvin, No. 1:11CV284, 2014 WL 1608269, at *2 (M.D.N.C. Apr. 22, 2014) (finding equitable tolling was not warranted where the claimant failed to demonstrate that the alleged misleading conduct by an SSA employee prevented him from timely filing his action for judicial review). In those cases where claimants have failed to allege or support any "rare circumstances," McMahan v. Barnhart, 377 F. Supp. 2d 534, 535 (W.D. Va. 2005), or in cases of "garden variety" excusable neglect, Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96 (1990), courts have not found equitable tolling to be warranted.
Furthermore, the Appeals Council's "good cause" determination is not subject to judicial review. 20 C.F.R. § 404.903(j). "[I]t is not the court's role simply to determine, as the Commissioner may, that 'good cause' exists to toll 60-day limit. Rather, the court's equitable discretion to overlook plaintiff's untimely filing should be exercised only when the equities tip significantly in favor of tolling." Hines v. Barnhart, No. 5:04-CV-726-FL, 2006 U.S. Dist. LEXIS 92398, at *18 (E.D.N.C. Jan. 25, 2006) (citing Bowen, 476 U.S. at 480). "Congress has delegated to the Commissioner the primary authority to waive the 60-day statutory limitations period, and courts should extend their equitable powers in contravention of this delegated authority 'only sparingly.'" Id. at *18-19 (internal citation omitted) (quoting Irwin, 498 U.S. at 96); see Draughon v. Colvin, No. 7:15-CV-95-D, 2016 WL 3511730, at *3 (E.D.N.C. May 17, 2016) (concluding that equitable tolling was not warranted when plaintiff offered no evidence to support his contention that his medical condition prevented timely appeal), adopted by 2016 WL 3536780 (E.D.N.C. June 22, 2016). Thus, while Claimant submitted a timely extension request to the Appeals Council, its determination of no "good cause" is not reviewable by the court. 20 C.F.R. § 404.903(j); Peeler v. Colvin, No. 3:16-CV-545-MOC-DLH, 2017 WL 64747, at *3 (W.D.N.C. Jan. 5, 2017).
Here, there is no dispute of material fact—Claimant's suit was filed untimely. At issue is whether the circumstances presented support equitable tolling of the 60-day limitations period. Claimant stated in her extension request to the Appeals Council that she was "still working on her appeals paperwork," and then, in her complaint, stated that she needed to extend the deadline "to secure appellate counsel," [DE-5] at 1-4. Her brief asserts difficulty completing the paperwork to file her civil action in federal court. [DE-14]. Unlike in Hyatt, Claimant alleged no misleading activity, "systematic, unpublished policy," or other possible reason that could be characterized as "rare" or "exceptional," 807 F.2d at 378-81, and "garden variety" claims of need for more time to complete paperwork or to secure counsel are insufficient to justify equitable tolling, Irwin, 498 U.S. at 96 ("[T]he principles of equitable tolling described above do not extend to what is at best a garden variety claim of excusable neglect."). Additionally, none of the three principle situations set out by the court in Carter has been asserted. 2012 WL 5949763, at *3. Claimant's assertion that she required an extension because she was still working on her appeals paperwork for district court, Compl. [DE-5] at 4, or in order to secure appellate counsel, id. ¶ 6, are not compelling grounds for equitable tolling. Accordingly, it is recommended that summary judgment be granted to Defendant and the case be dismissed.
IV. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Defendant's motion [DE-11] be ALLOWED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation ("M&R") be served on each of the parties or, if represented, their counsel. Each party shall have until August 23, 2018, to file written objections to the M&R. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the M&R to which objection is properly made and may accept, reject, or modify the determinations in the M&R; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). Any response to objections shall be filed within 14 days of the filing of the objections.
If a party does not file written objections to the M&R by the foregoing deadline, the party will be giving up the right to review of the M&R by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the M&R without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the M&R. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
Submitted, the 9th day of August 2018.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge