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finding that there is nothing to indicate that plaintiff "diligently pursued her rights" or "that extraordinary circumstances stood in her way" that would excuse her delay in meeting the sixty-day filing deadline
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15 Civ. 2038 (JCM)
02-21-2017
ALTAGRACIA PANIAGUA, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER
Plaintiff Altagracia Paniagua ("Plaintiff"), appearing pro se, commenced this action pursuant to Section 205(g) of the Social Security Act ("Section 205(g)"), 42 U.S.C. § 405(g), seeking judicial review of the decision of the Commissioner of Social Security ("the Commissioner") denying her application for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB"). The Commissioner moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56, arguing that Plaintiff's claim is time-barred under Section 205(g). For the reasons that follow, the Commissioner's motion is granted.
I. BACKGROUND
On August 2, 2013, an Administrative Law Judge ("ALJ") denied Plaintiff's claim for SSI and DIB, (Nicoll Decl. ¶ 3(a), Ex. 1). The ALJ's decision indicates that Plaintiff applied for SSI and DIB in June 2011; that her claims were initially denied on November 15, 2011; that she filed a written request for a hearing on January 23, 2012; and that she testified at the hearing, which was held on May 21, 2013. (Id. at 8). After the ALJ denied Plaintiff's claim, she requested that the Appeals Council review the ALJ's decision. (Nicoll Decl. ¶ 3(a), Ex. 2 at 2). On December 11, 2014, the Appeals Council denied Plaintiff's request for review, and the ALJ's decision became the final decision of the Commissioner. (Id.). The Appeals Council Notice advised Plaintiff of her right to commence a civil action within sixty days from the date of receipt. (Id. at 3-4). Plaintiff filed her Complaint in the instant action on March 13, 2015, using the complaint form provided by the Court. (Docket No. 2). In her Complaint, Plaintiff alleged that she received the Appeals Council Notice on December 18, 2014. (Compl. ¶ 8).
Refers to the Declaration of Roxie Rasey Nicoll, Chief of Court Case Preparation and Review Branch 4 of the Office of Appellate Operations, Office of Disability Adjudication and Review, Social Security Administration, filed on June 24, 2015 as Docket No. 15-1. The Court does not rely on the Declaration itself but, for reasons explained infra note 2, on the exhibits appended thereto; (i) the ALJ's August 2, 2013 decision, ("Ex. 1"), filed as Docket No. 15-2; and (ii) the Appeals Council's denial of Plaintiff's request for review ("Appeals Council Notice" or "Notice"), ("Ex. 2"), filed as Docket No. 15-3. Although the Appeals Council Notice was also filed by Plaintiff with her Complaint ("Compl."), see infra note 2, for ease of reference, the Court refers only to Exhibit 2. All page number citations refer to the page number assigned upon electronic filing.
The Court is dismissing Plaintiff's Complaint and construing the Commissioner's motion under Federal Rule of Civil Procedure 12(b)(6), rather than as a motion for summary judgment under Rule 56. See infra Section 11(A). Therefore, the Court cannot consider materials outside of the Complaint. Instead, the Court considers "any written instrument attached to the complaint as an exhibit or incorporated in the complaint by reference, as well as documents upon which the complaint relies and which are integral to the complaint." Subaru Distributors Corp. v. Subaru of Am., Inc., 425 F.3d 119, 122 (2d Cir. 2005). Plaintiff attached the Appeals Council Notice to her Complaint, and thus it may be considered in deciding this motion. (Docket No. 2 at 4-10). However, she did not attach the ALJ's decision to her Complaint. Nevertheless, the Court may properly consider the ALJ's decision because it is incorporated in the Complaint by reference. (Compl. ¶ 7). Furthermore, the ALJ's decision is integral to the Complaint because it is the document upon which the Appeals Council relied in denying Plaintiff's request for review, and it is the basis on which Plaintiff's claim is founded. See Twumwaa v. Colvin, No. 13 CIV. 5858 AT JLC, 2014 WL 1928381, at *1 n.2 (S.D.N.Y. May 14, 2014); Courtney v. Colvin, No. 13 CIV. 2884 AJN JLC, 2013 WL 5652476, at *1 n.2 (S.D.N.Y. Oct. 17, 2013), report and recommendation adopted, No, 13 CIV. 2884 AJN, 2014 WL 129051 (S.D.N.Y. Jan. 14, 2014). Finally, Plaintiff had actual notice of the ALJ's decision as it was addressed to her and mailed to the same address that she listed on her Complaint (compare Nicoll Decl. ¶ 3(a), Ex. 2 at 2, with Compl. ¶ 2); see also Twumwaa, 2014 WL 1928381, at *1 n.2; Courtney, 2013 WL 5652476, at *1 n.2.
Plaintiff also filed a request to proceed in forma pauperis, (Docket No. 1), which was granted by the Court on March 20, 2015, (Docket No. 3).
The Court notes that Plaintiff's Complaint does not accurately reflect the dates of her request for a hearing, the ALJ's decision, or the Appeals Council Notice. (Compl. ¶¶ 7-8). Because the Court is in receipt of the ALJ's decision and the Appeals Council Notice, the Court relies on the dates provided in those documents, rather than on the dates in Plaintiff's Complaint. (Nicoll Decl. ¶3(a), Exs. 1-2). However, the Court is not in receipt of any document that contradicts Plaintiff's account that she received the Appeals Council Notice on December 18, 2014.
On June 23 and 24, 2015, the Commissioner filed the pending motion to dismiss or, in the alternative, for summary judgment. (Docket Nos. 12, 14-18). The Commissioner contends that Plaintiff's Complaint is time-barred under Section 205(g), and that equitable tolling of the statute of limitations does not apply. (Docket No. 15). Plaintiff did not timely respond to the Commissioner's motion. (See Docket No. 11). At a status conference held on September 29, 2015, the Court allowed Plaintiff additional time to respond, extending the deadline from July 24, 2015 to October 16, 2015. Plaintiff responded by letter dated October 7, 2015, stating that she "did not submit a timely response" because she was "overwhelmed" with her "physical and emotional state of health, [her] lack of legal awareness and lack of professional legal representation . . . .," and expressed that she was "not in agreement" with the Commissioner's motion. (Docket No. 22). The Commissioner replied on October 30, 2015. (Docket No. 20).
II. DISCUSSION
A. Standard of Review
The exclusive remedy for a plaintiff who seeks judicial review of the Commissioner's final decision is provided for and limited by Sections 205(g) and (h) of the Social Security Act. 42 U.S.C. §§ 405(g), (h); see also Wong v. Bowen, 854 F.2d 630, 631 (2d Cir. 1988). The provisions set forth a sixty-day period in which a plaintiff must commence her civil suit, "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, which is presumed to be five days after it is dated. 20 C.F.R. 422.210(c); see also Wong, 854 F.2d at 631. Because this period "defines the terms on which the United States waives its sovereign immunity and consents to be sued, it is strictly construed." Davila v. Barnhart, 225 F. Supp. 2d 337, 338 (S.D.N.Y. 2002) (citing Bowen v. City of New York, 476 U.S. 467, 479 (1986); Randell v. United States, 64 F.3d 101, 106 (2d Cir.1995)).
The sixty-day period "is not jurisdictional, but rather constitutes a period of limitations." Bowen, 476 U.S. at 478. "'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.'" Twumwaa v. Colvin, No. 13 CIV. 5858 AT JLC, 2014 WL 1928381, at *2 (S.D.N.Y. May 14, 2014) (quoting Gelber v. Stryker Corp., 788 F. Supp. 2d 145, 153 (S.D.N.Y. 2011)) (citation omitted). Indeed, Rule 12(b)(6) "provides 'the most appropriate legal basis' for [a motion to dismiss on statute of limitations grounds] 'because expiration of the statute of limitations presents an affirmative defense.'" Id. (quoting Nghiem v. U.S. Dep't of Veterans Affairs, 451 F. Supp. 2d 599, 602 (S.D.N.Y. 2006), aff'd, 323 F. App'x 16 (2d Cir. 2009)). For this reason, such a motion is "'generally . . . treated as a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) . . . ." Id. (quoting Nghiem, 451 F. Supp. 2d at 602). The Court, therefore, will consider the Commissioner's motion to dismiss pursuant to Rule 12(b)(6). Accordingly, 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. N.Y. State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997) (citations omitted).
In accordance with Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009) and Local Civil Rule 7.2 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York, a copy of this case and any others cited herein, only available by electronic database, accompany this Opinion and Order and shall be simultaneously delivered to the pro se Plaintiff.
B. Timeliness
Section 205(g) states in relevant part:
Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action 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). The Social Security Administration's regulations further clarify that the "mailing" is the date the plaintiff receives the Appeals Council Notice, which is presumed to be five days after the Notice is dated:
Any civil action . . . must be instituted within 60 days after the Appeals Council's notice of denial of request for review of the administrative law judge's decision or notice of the decision by the Appeals Council is received by the individual . . . except that this time may be extended by the Appeals Council upon a showing of good cause. For purposes of this section, the date of receipt of notice of denial of request for review of the presiding officer's decision or 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); see also Wong, 854 F.2d at 631.
The sixty-day time period is strictly construed, Bowen, 476 U.S. at 479, "even where the delay is minor and the plaintiff is pro se," Borrero v. Colvin, No. 14CV5304-LTS-SN, 2015 WL 1262276, at *3 (S.D.N.Y. Mar. 19, 2015) (collecting cases), appeal dismissed, No. 15-1096 (May 22, 2015). Any other interpretation "would frustrate the congressional purpose, plainly evidenced in [Section] 205(g), to impose a [sixty]-day limitation upon judicial review of the Secretary's final decision on the initial claim for benefits." Califano v. Sanders, 430 U.S. 99, 108 (1977). The Court's "duty, of course, is to respect that choice." Id. Therefore, "[f]ailure to file a complaint within the statutory limitation most often requires dismissal of the case[.]"Borrero, 2015 WL 1262276, at *3.
Here, the Appeals Council Notice is dated December 11, 2014. (Nicoll Decl. ¶ 3(a), Ex. 2). It is undisputed that Plaintiff received the Notice. First, the Notice was mailed to the same address that Plaintiff used to file her Complaint, and the same address at which she received the ALJ's decision. (Compare Nicoll Decl. ¶ 3(a), Ex. 2 at 2, with Compl. ¶ 2, and Nicoll Decl. ¶ 3(a), Ex. 1 at 2). Second, Plaintiff admitted in her Complaint that she received the Appeals Council Notice on December 18, 2014. (Compl. ¶ 8). The Notice clearly instructed Plaintiff that she had sixty days to file a civil action after she received the Notice, and that her receipt of the Notice was presumed to be five days after it was dated, unless Plaintiff could show otherwise. (Nicoll Decl. ¶ 3(a), Ex. 2 at 3). Plaintiff was also advised that if there was a good reason why she could not meet the sixty-day deadline, she was entitled to seek an extension, in writing, from the Appeals Council. (Id. at 4).
It is clear from Plaintiff's Complaint as well as Exhibit 2 that a Spanish version of the Notice was sent to Plaintiff in addition to the version in English. (Compl. at 7-8; Nicoll Decl. ¶ 3(a), Ex. 2 at 7-9). See Davila, 225 F. Supp. 2d at 339 ("Courts have . . . tolled the limitations period where the final notice was sent in English to a claimant accustomed to receiving such notices in Spanish[.]") (citation omitted).
Because the Appeals Council Notice is dated December 11, 2014, Plaintiff is presumed to have received the Notice five days later, on December 16, 2014. Sixty days after December 16, 2014 is Saturday, February 14, 2015. However, because the sixty-day period ended on a Saturday, and because the following Monday was a federal holiday, the time within which plaintiff could timely file a complaint was extended until Tuesday, February 17, 2015. Fed. R. Civ. P. 6(a)(3)(A). Even if Plaintiff did not receive the Notice until December 18, 2014, as she claimed in her Complaint, the sixty-day period would nevertheless remain the same, because sixty days from December 18, 2014 is February 16, 2015, which, due to the federal holiday, would mean her period expired on February 17, 2015. (Compl. ¶ 8), Despite this deadline, Plaintiff did not file her Complaint until March 13, 2015, twenty-four days late. (Docket No. 2). The Court therefore finds that Plaintiff's Complaint is untimely. See, e.g., Borrero, 2015 WL 1262276, at *3-4 (collecting cases and finding pro se complaint filed nine days late was untimely); Twumwaa, 2014 WL 1928381, at *3 (collecting cases and recommending pro se complaint filed seven days late be dismissed, noting that "[m]any courts have dismissed social security cases under similar circumstances.").
The Court takes judicial notice that Monday, February 16, 2015, was a federal holiday (Washington's Birthday). Snow & Dismissal Procedures, Federal Holidays, U.S. OFFICE OF PERSONNEL MGMT., https://www.opm.gov/policy-data-oversight/snow-dismissal-procedures/federal-holidays/#url=2015 (last visited February 14, 2017).
C. Equitable Tolling
The Court must next determine whether the doctrine of equitable tolling applies to excuse Plaintiff's failure to file her Complaint within the sixty-day period. "[C]ases may arise where the equities in favor of tolling the limitations period are 'so great that deference to the agency's judgment is inappropriate.'" Bowen, 476 U.S. at 480 (quoting Mathews v. Eldridge, 424 U.S. 319, 330 (1976)). To qualify for equitable tolling, a plaintiff must "show that 'he has been pursuing his rights diligently' and that 'some extraordinary circumstances 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, 225 F. Supp. 2d at 339 (citing Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000)), and it should only be applied in the "rare case," Bowen, 476 U.S. at 481.
Equitable tolling "may be warranted in cases where [a] claimant fails to seek judicial review in a timely manner because of mental impairment." Canales v. Sullivan, 936 F.2d 755, 759 (2d Cir. 1991). Such a claimant must "aver[] incapacity due to mental impairment during the [sixty]-day period[.]" Id. (emphasis added). Moreover, "the question of whether a person is sufficiently mentally disabled to justify tolling of a limitation period is, under the law of this Circuit, highly case-specific." Boos, 201 F.3d at 184 (citing Canales, 936 F.2d at 759). A "conclusory and vague claim [regarding mental impairment], without a particularized description of how [plaintiff's] condition adversely affected her capacity to function generally or in relationship to the pursuit of her rights, is manifestly insufficient to justify any further inquiry into tolling." Id. at 185. Courts in this District have not allowed equitable tolling where claims regarding mental impairments were conclusory and vague, and where no causal connection was made between an alleged mental impairment and the delayed filing. See, e.g., Jones v. Comm'r of Soc. Sec., No. 13-CV-7379(RA)(FM), 2015 WL 10641784, at *3 (S.D.N.Y. Aug. 6, 2015), report and recommendation adopted, No. 13-CV-7379(RA), 2016 WL 1446223 (S.D.N.Y. Apr. 11, 2016) (granting motion to dismiss and finding equitable tolling did not apply where, "[a]lthough it appears that [plaintiff] has . . . depression, and anxiety, . . . there is no evidence to suggest that these impairments impacted his capacity to such a degree as to render him unable to comply with the Act's requirements."); Roberts v. Comm'r of Soc. Sec., No. 15 Civ. 6216 (CM)(AJP), 2016 WL 303896, at *2 (S.D.N.Y. Jan. 26, 2016) ("The vague assertion in the letter from [plaintiff's] doctor that [plaintiff's] manic mood 'leads to distraction and poor judgments' . . . is insufficient to establish that [plaintiff's] condition was so disabling as to warrant an equitable toll."); DeJesus v. Comm'r of Soc. Sec., No. 13-CV-7913 AJN, 2015 WL 3555787, at *4 (S.D.N.Y. June 8, 2015) (finding that, where plaintiff alleged that she suffered from an abscess in her brain and depression, and one medical record attached to the complaint mentioned anxiety, such "vague references in the complaint are simply insufficient to establish that plaintiff suffered from any condition that was so disabling that it could form the basis for an equitable toll."); Taylor v. Fresh Direct, No. 12 CIV. 2084 GBD AJP, 2012 WL 6184033, at *1 (S.D.N.Y. Dec. 12, 2012), report and recommendation adopted, No. 12 CIV. 2084 GBD AJP, 2013 WL 1897778 (S.D.N.Y. May 7, 2013) (dismissing civil rights claim under Title VII, finding that "[plaintiff's] bald assertion of depression . . . will not suffice to toll Title VII's statutory limitations period.") (collecting cases); Bartow v. Comm'r of Soc. Sec., No. 04 CIV.3200 AJP, 2004 WL 2368004, at *2 (S.D.N.Y. Oct. 22, 2004) ("The sole excuse [plaintiff] offered for filing late—that she was 'depressed' . . . does not constitute one of the 'rare cases' that warrant equitable tolling.") (citations omitted); Guinyard v. Apfel, 99 CIV. 4242 MBM, 2000 WL 297165, at *4 (S.D.N.Y. Mar. 22, 2000) ("[Plaintiff] establishe[d] no causal connection between her mental state and the lateness of her complaint.").
Reviewing the Complaint in the light most favorable to Plaintiff, there is nothing to indicate that she is entitled to the benefit of equitable tolling. First, her Complaint states nothing to suggest that she diligently pursued her rights. Although it appears that Plaintiff timely filed her request for review by the Appeals Council, she has not claimed that she attempted to file her civil action on time. Nor does Plaintiff's Complaint provide any extraordinary circumstances that would excuse her delay. The Court gave Plaintiff a second opportunity to present evidence that she diligently pursued her rights or that extraordinary circumstances stood in her way when it extended Plaintiff's time to reply to the Commissioner's motion. (See Docket No. 22). However, nothing in Plaintiff's response explains why she was late in filing her Complaint, or provides any diligent steps that she took to attempt to meet the sixty-day deadline. That said, she does explain that her failure to timely respond to the Commissioner's instant motion was due to being overwhelmed by her "physical and emotional state of health," and her "lack of legal awareness and lack of professional legal representation that could have guided [her] through these processes in a timely and proper manner." (Docket No. 22 at 1). Even assuming, arguendo, that Plaintiff intended to provide this rationale as an excuse for her failure to timely file the Complaint, the excuse does not suffice. See, e.g., Wong, 854 F.2d at 631 ("Allowing disability claimants who have been denied benefits to toll the sixty-day period on grounds of poor health would thoroughly undermine Section 205(g)'s sixty-day limitation period."); Bartow, 2004 WL 2368004, at *3 ("to the extent [plaintiff] asserted that she had some difficulty in figuring out how to bring her federal complaint, that provides no basis for equitable tolling: the Appeals Council's letter clearly explains the process.").
The Court must "'read the pleadings of a pro se plaintiff liberally and interpret them to raise the strongest arguments that they suggest.'" Guinyard, 2000 WL 297165, at *1 n.1 (quoting McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999)).
Furthermore, Plaintiff does not claim that she was mentally incapacitated during the sixty-day period in which she was entitled to file her Complaint. The Complaint does state that she believed she was entitled to receive DIB and SSI because of, inter alia, depression, (Compl. ¶ 4), and her response to the Commissioner's motion mentions "depression and anxiety," for which she at one point sought, and intended to seek again, psychological treatment, (Docket No. 22 at 1). However, this is insufficient to invoke the doctrine of equitable tolling. First, her description of depression and anxiety goes to the merits of her underlying disability claim, but does not explain in any causal way her failure to comply with the sixty-day period. See, e.g., Guinyard, 2000 WL 297165, at *4 ("Whatever particularized allegations [regarding mental impairment] [plaintiff] has made go to the merits of her underlying disability claim; they do not explain why her complaint was delayed."); see also supra pp. 8-9. Second, even if Plaintiff intended to claim that her alleged mental impairment caused her delay in commencing the civil action, her reference to depression and anxiety is vague and conclusory, and does not provide "a particularized description of how her condition adversely affected her capacity to function generally or in relationship to the pursuit of her rights [.]" Boos, 201 F.3d at 185, Such statements are "manifestly insufficient to justify any further inquiry into tolling." Id.; see also supra pp. 8-9. Finally, Plaintiff has previously demonstrated her ability to abide by deadlines, despite her alleged mental impairment, when she initially filed her request for review with the Appeals Council. See, e.g., Borrero, 2015 WL 1262276, at *6 ("[Plaintiff's] compliance with the statute of limitations at earlier stages of the appeals process—namely his request to the Appeals Council—'indicates that he was accustomed to operating under time constraints and capable of doing so, even when acting pro se.'") (quoting Monje v. Shalala, No. 93 CIV. 4707 (MBM), 1995 WL 540028, at *3 (S.D.N.Y. Sept. 11, 1995), aff'd, 112 F.3d 504 (2d Cir. 1996)).
The Court, therefore, finds that equitable tolling does not apply. See, e.g., Twumwaa, 2014 WL 1928381, at *4 (finding plaintiff's claims that she was "stressed" and "in pain," and that she "gave the motion to [her] former attorney to respond," were insufficient to invoke the doctrine of equitable tolling); Davila, 225 F. Supp. 2d at 340 (acknowledging that "the strict application of the traditional principles of equitable tolling seems particularly harsh" where plaintiff "filed her complaint only one day late," but holding that plaintiff's complaint was time-barred, and noting that "'courts have not hesitated to enforce the [sixty]-day limit as a firm limit.'") (citations omitted).
III. CONCLUSION
For the foregoing reasons, the Commissioner's Motion to Dismiss is granted and Plaintiff's Complaint is dismissed. The Clerk is respectfully requested to terminate the pending motion (Docket No. 12) and close the case. Dated: February 21, 2017
White Plains, New York
SO ORDERED:
/s/_________
JUDITH C. McCARTHY
United States Magistrate Judge