Opinion
18-cv-1160 (KMK) (AEK)
06-09-2021
REGINALD BICKRAM, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
Andrew E. Krause United States Magistrate Judge
TO: THE HONORABLE KENNETH M. KARAS, U.S.D.J.
This case was originally referred to Magistrate Judge Lisa Margaret Smith on March 29, 2018. ECF No. 11. The order of reference was reassigned to the undersigned on October 15, 2020.
Plaintiff Reginald Bickram brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of Defendant Commissioner of Social Security (the “Commissioner”), which denied his application for disability insurance benefits and/or supplemental security income benefits. ECF No. 7. The Commissioner has moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, on the ground that the complaint is barred by the time limitation specified in section 205(g) of the Social Security Act (the “Act”), 42 U.S.C. §405(g). ECF Nos. 17, 19. For the reasons that follow, I respectfully recommend that the Commissioner's motion be DENIED.
The facts set forth herein are taken from the Statement of Defendant Pursuant to Local Rule 56.1 (“Def.'s 56.1 Statement”) (ECF No. 18), Plaintiff's Response to Defendant's Rule 56.1 Statement (“Pl.'s 56.1 Counterstatement”) (ECF No. 29), and the declarations and exhibits submitted by the parties in connection with the motion.
On May 5, 2017, a Social Security Administration (“SSA”) administrative law judge (“ALJ”) issued a decision denying Plaintiff's claim for disability insurance and supplemental security income benefits, finding that he was not disabled under the Act. Pl.'s 56.1 Counterstatement ¶ 1; Declaration of Cristina Prelle, filed Aug. 11, 2018 (ECF No. 20) (“Prelle Decl.”) Ex. 1. Plaintiff sought review of the ALJ's decision by the SSA's Appeals Council, which denied the request in a decision dated December 1, 2017. Pl.'s 56.1 Counterstatement ¶ 2; Prelle Decl. Ex. 2 (“Appeals Council Decision” or the “Decision”). The Commissioner asserts that on December 1, 2017, the SSA mailed the Appeals Council Decision to Plaintiff and to Brynn Lapszynski, Esq. of Disability Justice, the attorneys who represented Plaintiff during the administrative proceedings. Def.'s 56.1 Statement ¶ 3; see Prelle Decl. Ex. 2 at 4. Plaintiff denies that the Appeals Council Decision was sent to him by the SSA, and maintains that he did not receive a copy of the Appeals Council Decision until it was sent to him in February 2018 by Disability Justice. Pl.'s 56.1 Counterstatement ¶ 3; see Declaration of Reginald M. Bickram, filed Oct. 2, 2018 (ECF No. 24) (“R. Bickram Decl.”) ¶¶ 39-41.
Moreover, Plaintiff claims that Disability Justice did not receive a copy of the Appeals Council Decision until December 11, 2017, ten days after the date of the Decision. Pl.'s 56.1 Counterstatement ¶ 7; see Declaration of Brynn Lapszynski, filed Oct. 2, 2018 (ECF No. 26) (“Lapszynski Decl.”) ¶ 12; Sur-Reply Declaration of Carolyn A. Kubitschek, filed Nov. 14, 2018 (ECF No. 35-1) (“Kubitschek Decl.”) ¶ 8 & Ex. 5. Disability Justice mailed Plaintiff a copy of the Appeals Council Decision, attached to a letter dated January 31, 2018, in an envelope postmarked February 2, 2018, addressed to Plaintiff at his home in the Bronx, New York. Pl.'s 56.1 Counterstatement ¶ 8; Lapszynski Decl. ¶ 13; ECF No. 24-3 at 8.
During the winter of 2017-2018, Plaintiff spent much of his time with his children and grandchildren at their house in Suffolk County, New York. R. Bickram Decl. ¶ 7; Declaration of Daniel D. Bickram, filed Oct. 2, 2018 (ECF No. 25) (“D. Bickram Decl.”) ¶ 6. Plaintiff's brother, who resides in the same building as Plaintiff, checked his brother's mailbox on days when Plaintiff was in Suffolk County, “looking for a notice from the [SSA], ” but “[n]o mail from the [SSA] ever arrived for [Plaintiff] during the month of December, 2017, or afterward.” D. Bickram Decl. ¶¶ 2, 9-10. On February 6, 2018, Plaintiff's brother found a letter from Disability Justice in the mailbox and immediately contacted Plaintiff. Id. ¶¶ 11-12. Plaintiff's brother then proceeded to read the January 31, 2018 Disability Justice letter and the Appeals Council Decision to Plaintiff over the telephone. R. Bickram Decl. ¶¶ 19-21; D. Bickram Decl. ¶ 13. That same day, Plaintiff contacted the law firm of Lansner & Kubitschek for purposes of obtaining representation to file a federal court lawsuit, but by the time he did it was too late for Plaintiff to consult with attorneys from the firm prior to the close of business, and too late to drive to New York City to attempt to file a complaint before the Clerk's Office closed. R. Bickram Decl. ¶¶ 25-26; Declaration of Benjamin W. Biffis, filed Oct. 2, 2018 (ECF No. 28) (“Biffis Decl.”) ¶ 2. Plaintiff was again unable to file his complaint on February 7, 2018 because he was injured when he slipped on ice as he was attempting to leave the Suffolk County house. R. Bickram Decl. ¶¶ 27-28. On February 8, 2018, Plaintiff was able to travel to the courthouse and file his complaint. R. Bickram Decl. ¶ 29; see ECF No. 2. At no point did Plaintiff request an extension of the time to file his federal court action. Pl.'s 56.1 Counterstatement ¶ 6.
II. DISCUSSION
The Commissioner moves under Rule 12(b)(6) and Rule 56 of the Federal Rules of Civil Procedure. See ECF No. 19 at 1, 3-5. In support of the motion the Commissioner submitted a declaration from an SSA staff member as well as the ALJ and Appeals Council decisions. See Prelle Decl. Plaintiff opposed the Commissioner's motion by filing his own declaration, along with declarations from his brother, his current attorney, a paralegal at his current attorney's firm, an attorney from Disability Justice, and another attorney who practices Social Security law. See ECF Nos. 24-28, 35-1. Because the Court has considered these filings as part of its review of the motion, the Court will treat the Commissioner's motion as one for summary judgment. See Fed.R.Civ.P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.”)
A. Applicable Legal Standards
1. Standard for Summary Judgment
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted “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.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 320-23 (1986). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine issue of material fact exists, a court should “constru[e] the evidence in the light most favorable to the nonmoving party and draw[] all reasonable inferences in its favor.” Mount Vernon Fire Ins. Co. v. Belize NY, Inc., 277 F.3d 232, 236 (2d Cir. 2002); Farias v. Instructional Sys., Inc., 259 F.3d 91, 97 (2d Cir. 2001); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 764 (2d Cir. 1998); see also Anderson, 477 U.S. at 261 n.2. Thus, “[o]nly when no reasonable trier of fact could find in favor of the nonmoving party should summary judgment be granted.” Cruden v. Bank of New York, 957 F.2d 961, 975 (2d Cir. 1992) (quoting H.L. Hayden Co. v. Siemans Med. Sys. Inc., 879 F.2d 1005, 1011 (2d Cir. 1989)).
2. Statute of Limitations Applicable to Judicial Review of Social Security Claims
Judicial review of decisions regarding Social Security claims is governed by 42 U.S.C. § 405(g), which states, in pertinent part:
Any individual, after any final decision of the Commissioner of Social Security . . . may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him [or her] of notice of such decision or within such further time as the Commissioner of Social Security may allow....42 U.S.C. § 405(g). Pursuant to this statutory grant of authority to allow “further time, ” the Commissioner issued a regulation extending a plaintiff's time to file to “60 days after . . . notice of the decision by the Appeals Council is received.” 20 C.F.R. § 422.210(c). Accordingly, “[r]ather than commencing on the date notice of decision is mailed to the claimant, the sixty day period starts from the time notice is received by the claimant.” Matsibekker v. Heckler, 738 F.2d 79, 81 (2d Cir. 1984) (emphases in original). Receipt of an Appeals Council decision is “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); Matsibekker, 738 F.2d at 81. Therefore, the presumption is that “[t]he 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) (summary order).
“Because the limitations period is a condition to the government's waiver of sovereign immunity, the limitations period must be strictly construed. For this reason, failure to file a complaint within the statutory limitation most often requires dismissal of the case.” Sherwood v. Berryhill, No. 17-cv-5015 (GWG), 2018 WL 4473336, at *4 (S.D.N.Y. Sept. 18, 2018) (quotation marks and citations omitted); see Bowen v. City of New York, 476 U.S. 467, 479 (1986).
3. Equitable Tolling
“[T]he doctrine of equitable tolling permits courts to deem filings timely where a litigant can show that ‘he [or she] has been pursuing his [or her] rights diligently' and that ‘some extraordinary circumstance stood in his [or her] way.'” Torres v. Barnhart, 417 F.3d 276, 279 (2d Cir. 2005) (internal quotation marks omitted) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). A party seeking to equitably toll a statute of limitations bears the burden of demonstrating his or her entitlement to such tolling. Randolph v. Comm'r of Soc. Sec., 699 Fed.Appx. 36, 37 (2d Cir. 2017) (summary order).
B. Analysis
1. Statute of Limitations and Five-Day Presumption of Receipt
Here, the Appeals Council Decision is dated December 1, 2017, see Prelle Decl. Ex. 2, and under the applicable regulation, Plaintiff is presumed to have received the Decision five days later, i.e., December 6, 2017, “unless there is a reasonable showing to the contrary, ” 20 C.F.R. § 422.210(c). Absent such a showing, Plaintiff's deadline to file his federal court lawsuit was 60 days from the date of receipt of the Appeals Council Decision-February 5, 2018-but Plaintiff did not file his complaint until February 8, 2018, see ECF Nos. 1, 2. The Commissioner therefore argues that this action is barred by the statute of limitations set forth in 42 U.S.C. § 405(g) because it was filed outside the 60-day limit. Plaintiff contends that he has made the required “reasonable showing” to rebut the five-day presumption of receipt of the Appeals Council Decision, and that his complaint is timely either because it was filed two days after his actual receipt of the Appeals Council Decision on February 6, 2018, or 59 days after the actual receipt of the Appeals Council Decision by Disability Justice on December 11, 2017.
If the 60-day period started to run on December 6, 2017, then the 60th day would have been Sunday, February 4, 2018, and Plaintiff would have had until Monday, February 5, 2018 to file this action. See Fed.R.Civ.P. 6(a)(1)(C) (if the last day of a time period stated in days “is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday”).
It is well settled that in order to make a “reasonable showing” to rebut the five-day presumption of receipt, a plaintiff must do more than merely state in a complaint or a sworn declaration that he or she did not receive an Appeals Council decision within five days. See, e.g., Sherwood, 2018 WL 4473336 at *4-5 (collecting cases). In short, a plaintiff's “self-serving assertion that he [or she] simply never received notice is insufficient to rebut the presumption of receipt within five days.” Id. at *5. Rather, a plaintiff “must provide affirmative evidence that the Commissioner's final decision was received more than five days after the date of issuance.” Shine v. Comm'r of Soc. Sec., No. 18-cv-960 (PGG) (OTW), 2020 WL 4596814, at *2 (S.D.N.Y. Aug. 11, 2020) (quotation marks omitted). There are numerous examples of cases decided in this Circuit where the five-day presumption of receipt has been applied and plaintiffs' complaints have been dismissed. See, e.g., Liranzo v. Comm'r of Soc. Sec., 411 Fed.Appx. 390, 391 (2d Cir. 2011) (summary order) (rejecting plaintiff's proffered bases to rebut the presumption); Velez, 229 F.3d at 1136 (plaintiff offered “no ‘reasonable showing' beyond her conclusory allegation”); Malavolta v. Comm'r of Soc. Sec., No. 08-cv-6528 (LTS) (KNF), 2009 WL 1097275, at *4 (S.D.N.Y. Apr. 23, 2009) (plaintiff's “bare assertion” of non-receipt was insufficient to rebut presumption), adopted by, 2009 WL 1468601 (S.D.N.Y. May 22, 2009).
Plaintiffs in several cases decided in this Circuit, however, have succeeded in making a reasonable showing to rebut the five-day presumption. In Matsibekker, the plaintiff was able to provide evidence that the Appeals Council decision was not even mailed until after the five-day period had passed, and thus could not possibly have been received by the date presumed by the SSA regulation. See 738 F.2d at 81. In Chiappa v. Califano, 480 F.Supp. 856, 857 (S.D.N.Y. 1979), the plaintiff had moved, and the notice of decision originally was mailed to his prior address before being forwarded to his new address. The plaintiff was able to rebut the five-day presumption of receipt by introducing a notation on the Appeals Council decision by a railroad clerk, along with an affidavit from that railroad clerk, confirming the actual date on which the notice was received. See id. The district court in Chiappa further noted that the plaintiff filed his complaint only five days late, and that “[w]hile this fact would not excuse an untimely filing, however minimally late, it serves in the present circumstances to show that plaintiff was not sleeping on his rights, and makes his explanation somewhat more credible than it would have been if a much longer and less readily explained period had passed.” Id. Finally, in Duran ex rel. Canfield v. Barnhart, No. 03-cv-1089 (HB), 2003 WL 22176011, at *2 (S.D.N.Y. Sept. 22, 2003), the plaintiff successfully rebutted the five-day presumption where her counsel compiled a list of 29 Appeals Council notices which demonstrated that claimants on average received notice from the SSA six days after the notice date, rather than the presumed five days. The district court in Duran also pointed out that the notice in that case had been mailed at Christmas time, which is “notorious for late mail deliveries.” Id. at *2.
Viewing all of the evidence presented on this motion, the Court concludes that Plaintiff has made a reasonable showing sufficient to rebut the presumption that he received the Appeals Council Decision within five days of the date of the Decision, i.e. by December 6, 2017. Accordingly, the 60-day limitations period should not be calculated from December 6, 2017.
Plaintiff has asserted that he never received a copy of the Appeals Council Decision from the SSA, and that the only copy of the Decision that he ever received was the one sent to him by Disability Justice, which arrived in his mailbox on February 6, 2018. R. Bickram Decl. ¶¶ 1921, 37-40; D. Bickram Decl. ¶¶ 11, 13. Though the law is clear that Plaintiff's declaration alone would not be sufficient to constitute a “reasonable showing” to rebut the presumption of receipt, Plaintiff's account is corroborated here by the declaration of his brother, who regularly checked Plaintiff's mailbox at their shared residence when Plaintiff was not at home during the critical time period at issue. See generally D. Bickram Decl. ¶¶ 5-13. In addition, similar to the manner in which the plaintiff in Duran provided evidence of delays in the receipt of SSA mailings, Plaintiff here has supplied a declaration from Charles L. Martin, an attorney who specializes in Social Security cases, in which Mr. Martin states that he “routinely receive[s] mail from the Appeals Council 10 or more days after the date of the enclosed notice.” Declaration of Charles L. Martin, filed Oct. 2, 2018 (ECF No. 27) (“Martin Decl.”) ¶ 5. Attached to the Martin Declaration is a copy of a notice that Mr. Martin received from the Appeals Council, as well as the envelope in which it was sent; the envelope was postmarked 14 days after the date of the Appeals Council letter. Martin Decl. ¶ 6 & Ex. 4. Mr. Martin states that “[n]ot infrequently, ” he never receives mail that has supposedly been sent to him by the Appeals Council. Id. ¶ 7. Also as in Duran, the Appeals Council notice in this case was mailed during the winter holiday season between Thanksgiving and New Year's Day, a time “notorious for late mail deliveries, ” Duran, 2003 WL 22176011, at *2; see also Biffis Decl. ¶¶ 13-14 (highlighting the large volume of mail processed by the U.S. Postal Service during the 2017 holiday season). The Commissioner did not directly address these points in his reply brief, other than to argue generally that the evidence proffered by Plaintiff did not amount to a “reasonable showing” sufficient to rebut the presumption of receipt within five days of the date of the Appeals Council Decision.
The fact that Disability Justice did not receive the Appeals Council Decision until December 11, 2017-an assertion backed by an attorney declaration and documentary evidence-is further support for the “reasonable showing” that Plaintiff did not receive the Decision by December 6, 2017. Disability Justice attorney Brynn Lapszynski explained that her office maintains a system “to ensure that all mail which we receive is scanned in promptly and that the date of receipt is recorded.” Lapszynski Decl. ¶ 8; see id. ¶¶ 9-11. According to Ms. Lapszynski, Disability Justice's records showed that the office received the Appeals Council Decision on December 11, 2017, and that staff scanned the notice into the records management system. Id. ¶ 12. A printout from the Disability Justice computer system reflects that on December 11, 2017 at 11:24 a.m., a staff member named Domingo “Rcvd and scanned in Notice of Appeals Council Action dated 12/01/17” related to Plaintiff's case. Kubitschek Decl. Ex. 5. It is instructive that Disability Justice did not actually receive the same Appeals Council Decision purportedly sent to Plaintiff until December 11, 2017, five days after the date contemplated by the regulatory presumption.
Finally, as the Chiappa court observed, the fact that Plaintiff acted promptly to file his complaint just two days after he claims he first received the Appeals Council Decision tends to corroborate his account of when he first received the Appeals Council Decision. When he received the Decision on February 6, 2018, Plaintiff called the office of his current counsel, but by then it was too late for Plaintiff to file his complaint. R. Bickram Decl. ¶¶ 25-26. Plaintiff intended to drive to the courthouse on February 7, 2018, but he suffered an injury to his leg as he was getting into his truck, and there were icy driving conditions on the roads; consequently, Plaintiff had to wait until February 8, 2018 to travel to the courthouse to file this action. Id. ¶¶ 27-29. Even upon arrival at the courthouse, Plaintiff encountered various obstacles and challenges that could have prevented him from filing, but he diligently worked through these issues in order to file his complaint without further delay. See id. ¶¶ 30-36. Plaintiff's diligence in commencing this action lends additional support to his contention that not only did he not receive the Appeals Council Decision within the five-day period, but that he did not receive the Decision until February 6, 2018. To be clear, the fact that the filing date of the complaint- February 8, 2018-is only three days after the February 5, 2018 deadline that would have been in effect based on the application of the five-day presumption of receipt is not a basis to excuse an untimely filing. The relevance here is that Plaintiff acted so quickly after learning of the Appeals Counsel Decision on February 6, 2018, strongly indicating that he “was not sleeping on his rights.” See Chiappa, 480 F.Supp. at 857.
While no one piece of evidence offered by Plaintiff, taken individually, is as compelling as the evidence offered in Matsibekker, Chiappa, or Duran, Plaintiff's submissions as a whole constitute a “reasonable showing” sufficient to rebut the presumption that Plaintiff received notice of the Appeals Council Decision within five days of the date of the Decision. With that, the only evidence in the record regarding Plaintiff's receipt of the Appeals Council Decision is that he first received the Decision on February 6, 2018. Because Plaintiff filed this action on February 8, 2018, the filing was well within 60 days of the date the Decision was received by the claimant, and therefore is timely pursuant to 20 C.F.R. § 422.210(c).
Alternatively, if Plaintiff's deadline to file the complaint can be construed to start running from the date his attorney received notice of the Appeals Council Decision, the February 8, 2018 filing would still be timely, because it was made 59 days after Disability Justice received the Decision on December 11, 2017. “Courts disagree on whether notice to a claimant's attorney is sufficient to separately start the 60-day appeal deadline, ” Sherwood, 2018 WL 4473336, at *4 n.5 (citing cases), and it is not necessary for the Court to rule on that issue here, as the outcome would be the same whether the limitations period started with the actual receipt of the Appeals Council Decision by Plaintiff or the actual receipt by Disability Justice. Were this Court to determine that the measuring date for the running of the 42 U.S.C. § 405(g) statute of limitations is the date that counsel receives an Appeals Council decision, Plaintiff's evidence regarding his attorney's receipt of the Appeals Council Decision on December 11, 2017-in the form of the Lapszynski Declaration and the corroborating documentation from the Disability Justice computer system-is a “reasonable showing” sufficient to rebut the presumption that Disability Justice received the Appeals Council Decision on December 6, 2017. See Mack v. Comm'r of Soc. Sec., No. 18-cv-974, 2019 WL 2422866 (W.D.N.Y. June 10, 2019) (finding that the plaintiff had made a “reasonable showing” rebutting the five-day presumption of receipt based on evidence that her attorneys received the Appeals Council notice after the five-day period); Chasity P. v. Berryhill, No. 18-cv-113, 2018 WL 5724003 (W.D.N.Y. Nov. 1, 2018) (same). With an operative date of receipt of December 11, 2017, Plaintiff's February 8, 2018 filing of this lawsuit also would be timely.
Plaintiff incorrectly states that he filed this action 58 days after Disability Justice's receipt of the Appeals Council Decision. See Pl.'s Mem. of Law in Opp'n (ECF No. 23) at 10, 12.
Because Plaintiff has succeeded in rebutting the five-day presumption of receipt, the burden shifts to the Commissioner to prove that Plaintiff (or Disability Justice) “received actual notice more than 60 days prior to filing the complaint in district court.” Matsibekker, 738 F.2d at 81. Here, the Commissioner has not offered any evidence that Plaintiff (or Disability Justice) received actual notice more than 60 days prior to the filing date of his complaint, namely, before December 10, 2017. See Duran, 2003 WL 22176011, at *2 (denying motion to dismiss on statute of limitations grounds where, after plaintiff “successfully rebutted the regulatory presumption, ” “defendant proffers no evidence to show that Duran received the Appeals Council's notice . . . more than 60 days before the filing date of her complaint”). Accordingly, Plaintiff's filing of his complaint in this action on February 8, 2018 was timely.
2. Equitable Tolling
Because the Court concludes that Plaintiff has made a reasonable showing sufficient to rebut the five-day presumption of receipt of the Appeals Council Decision and has therefore established that he filed this action within the applicable limitations period, the Court need not address the parties' arguments concerning equitable tolling.
CONCLUSION
For the foregoing reasons, I respectfully recommend that the Commissioner's motion to dismiss or for summary judgment (ECF No. 17) be DENIED.
In addition, if Your Honor adopts this Report and Recommendation, I also respectfully recommend that an order be issued to address the question of whether this case should be remanded to the Commissioner for a new hearing before a constitutionally appointed ALJ different from the ALJ who previously heard and adjudicated Plaintiff's claim for benefits. On April 22, 2021, the Supreme Court issued its decision in Carr v. Saul, 141 S.Ct. 1352 (2021). The Carr Court held that applicants for Social Security disability benefits who had hearings conducted, and/or decisions issued, by an ALJ whose appointment was not in accordance with the Appointments Clause of the U.S. Constitution were not required to administratively exhaust their Appointments Clause challenges during proceedings before the SSA before raising such challenges for the first time in federal court. Here, Plaintiff's ALJ hearing was conducted, and the ALJ's decision was issued, before the ALJ's appointment was ratified by the Acting Commissioner of Social Security in July 2018. To date, Plaintiff has not raised an Appointments Clause challenge in this federal court proceeding. Accordingly, in light of the Carr decision and to promote efficiency and judicial economy, I respectfully recommend that the parties be directed to meet and confer regarding whether this case should be remanded to the Commissioner based on the Appointments Clause issue, that Plaintiff be required to submit a letter of no longer than five pages setting forth whether or not Plaintiff believes this case should be remanded at this time, and that, if necessary, the Commissioner be permitted to submit a letter of no more than five pages in response. In addition, I recommend that Plaintiff be instructed that should he elect not to request a remand on the Appointments Clause issue at this stage, this may constitute a waiver of the Appointments Clause challenge in all further proceedings, including appeals. I further recommend that Plaintiff be notified that a decision not to request a remand will not prejudice the Plaintiff in any way before this Court, nor will it affect the timing of this Court's decision on any forthcoming motions in this matter should the case remain in federal court. See, e.g., Lushaj v. Comm'r of Soc. Sec., No. 18-cv-6751 (KMK) (AEK), ECF No. 35.
NOTICE
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 and Recommendation to file written objections. A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any responses to such objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Kenneth M. Karas, United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Karas, and not to the undersigned.
Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).