O'Connor v. Colvin

Filing 24

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Nina Y. Wang on 11/15/17 re 22 MOTION for Summary Judgment filed by Andrew J. O'Connor, and 11 MOTION to Dismiss as Untimely filed by Carolyn W. Colvin. The Co urt respectfully RECOMMENDS: The Motion to Dismiss 11 be DENIED without prejudice, and the Motion for Summary Judgment 22 be DENIED without prejudice. The Court ORDERS: The Commissioner shall file her Answer and Administrative Record on or before December 8, 2017; and the Parties shall submit their JCMP, as contemplated by the courts March 29, 2016 Order, [#8 at 3], on or before December 15, 2017. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 16-cv-00646-LTB-NYW
ANDREW J. O’CONNOR,
Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security,1
Defendant.

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
AND ORDER
Magistrate Judge Nina Y. Wang
This civil action comes before the court on the Acting Commissioner of Social Security’s
Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) (“Motion to Dismiss”). [#11, filed May
12, 2016]. Also before the court is Plaintiff’s Motion for Summary Judgment. [#22, filed
November 3, 2017]. The Motion to Dismiss and Motion for Summary Judgment were referred
to the undersigned Magistrate Judge pursuant to the Order Referring Case dated November 3,
2017 [#20] and the memoranda dated November 3, 2017 [#21] and November 8, 2017 [#23].
This court has reviewed the Motion to Dismiss and Response thereto, the Motion for Summary
Judgment, the entire case file, and the applicable case law, and respectfully RECOMMENDS
that the court DENY both the Motion to Dismiss and the Motion for Summary Judgment.

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This action was originally filed against Carolyn Colvin, as Acting Commissioner of the Social
Security Administration. Nancy Berryhill succeeded Carolyn Colvin as Acting Commissioner of
the Social Security Administration on January 23, 2017. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, this court automatically substitutes Acting Commissioner Berryhill as
Defendant in this matter.

BACKGROUND
On March 18, 2016, Plaintiff Andrew J. O’Connor initiated this action pro se pursuant to
Titles II and XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 401-33 and 1381-83(c), for
review of the Commissioner of Social Security’s (the “Commissioner”) final decision denying
his application for Disability Insurance Benefits (“DBI”) and Supplemental Security Income
(“SSI”). See [#1]. The court derives the following facts from the Complaint.
Mr. O’Connor’s disability arises from an automobile accident in 1992, which was caused
by a drunk driver hitting Plaintiff’s vehicle head-on and which resulted in Plaintiff sustaining a
traumatic brain injury and spending over thirteen months in the hospital. See [id.]; see also [#12
at 2]. Mr. O’Connor applied for DBI and SSI on November 25, 2013. [#1 at 3]. His application
was denied on June 6, 2014. Id. Plaintiff thereafter requested a hearing before an administrative
law judge (“ALJ”) and appeared for a hearing on August 3, 2015. Id. The ALJ ruled that
Plaintiff was not disabled under the Act and, on December 2, 2015, Plaintiff filed a request for
review of the decision. [Id. at 4]. On January 18, 2016, Mr. O’Connor received the notice of the
Appeals Council denying his request for review of the ALJ’s decision. [Id.] Mr. O’Connor
initiated this civil action on March 18, 2016.
On March 29, 2016, the court issued an Order instructing Plaintiff and the Commissioner
to prepare and file a Joint Case Management Plan for Social Security Cases (“JCMP”),
specifying in part that the JCMP should be filed within ten days of the Answer, and the Answer
should be filed “no later than sixty (60) days, or sooner if practicable, after service…” [#8 at 2,
3]. The Order further specified that Plaintiff’s opening brief would be due thirty days after the
filing of the JCMP. Id. The Parties never filed a JCMP. Instead, on May 12, 2016, the
Commissioner filed the Motion to Dismiss pursuant to Rule 12(b)(1), arguing that Plaintiff’s

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Complaint must be dismissed because it was filed more than sixty days after receipt of the “Final
Decision” of the Commissioner. [#11]. The Motion to Dismiss also preemptively argued that
equitable tolling is not appropriate to excuse Plaintiff’s late filing. See [id.] On May 26, 2016,
Plaintiff filed a Response, asserting that the Complaint is timely and, in the alternative, the court
should equitably toll the deadline. [#12]. The Commissioner did not file a reply. The case was
ultimately reassigned, see [#15, #18], and referred to this Magistrate Judge, see [#20]. After
which, on November 3, 2017, Plaintiff filed the Motion for Summary Judgment, [#22], to which
the Commissioner has not yet responded.
ANALYSIS
I.

Motion to Dismiss
The Commissioner argues that the Complaint should be dismissed as untimely. Through

the affidavit of Kathie Hartt, Chief of Court Case Preparation and Review Branch 2 of the Office
of Appellate Operations, Office of Disability Adjudication and Review, Social Security
Administration, the Commissioner represents that “[o]n January 9, 2016, the Appeals Council
sent, by mail addressed to the plaintiff at [redacted address] with a copy to the representative,
notice of its action on the plaintiff’s request for review and of the right to commence a civil
action within sixty (60) days from the date of receipt.” [#11-1 at 3, ¶ 3 (citing #11-1 at 29)]
(emphasis added). The prevailing presumption is that an applicant receives a notice from the
Appeals Council within five days of the date on which the notice is mailed. Therefore, the
Commissioner argues, because the notice was mailed to Mr. O’Connor on January 9, 2016, we
must presume he received the notice by January 14, 2016. In turn, January 14 triggers the sixtyday period within which he must file a civil action, and his Complaint is untimely because it was
filed on March 18, 2016, four days after the sixtieth day. Additionally, there is no record that

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Plaintiff filed a request for extension of time to file a civil action as specified in the Appeals
Council’s notice.
In his Response, Plaintiff reasserts that he received the notice of the Appeals Council on
January 18, 2016, and contends that his Complaint was thus due on or before March 22, 2016.
[#12 at 3]. Plaintiff cites no authority for his calculation of deadlines. He argues that, in the
alternative, the court should equitably toll his deadline for filing the Complaint on account of his
traumatic brain injury. [Id.]
A.

Governing Law
1.

Pro Se Filings

As mentioned above, Mr. O’Connor is appearing pro se, and as a result, the court would
generally “review his pleadings and other papers liberally and hold them to a less stringent
standard than those drafted by attorneys.” Trackwell v. United States Govt, 472 F.3d 1242, 1243
(10th Cir. 2007) (citations omitted). It is unclear that Mr. O’Connor is entitled to a liberal
construction of his filings, however, because he is a trained attorney. See [#12 at 1 (“Plaintiff
graduated from law school in 1987 and practiced law as an assistant public defender…”)]. See
Committee on the Conduct of Attorneys v. Oliver, 510 F.3d 1219, 1223 (10th Cir. 2007); Tatten
v. Bank of Am. Corp., 562 F. App’x. 718, 720 (10th Cir. 2014). In an abundance of caution, this
court will apply a liberal construction to the instant Motions, but is mindful that its role is not to
act as a pro se litigant’s advocate, Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009), or
to “construct arguments or theories for the plaintiff in the absence of any discussion of those
issues,” Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (internal citation
omitted).

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2.

Applicable Statute of Limitation and Federal Rule of Civil Procedure

Defendant moves to dismiss this action for lack of subject matter jurisdiction pursuant to
Rule 12(b)(1) based on the timing of Mr. O’Connor’s filing. [#11]. Under the Act, the action by
the Appeals Council denying Plaintiff’s request for review rendered the ALJ’s decision the “final
decision” of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481, 422.210(a). The court has
jurisdiction to review the final decision of the Commissioner. See 42 U.S.C. § 405(g). However,
its jurisdiction is limited, and any action seeking review of the final decision of the
Commissioner must be made after a hearing to which the person bringing the action was a party
and must be “commenced within sixty days after the mailing to him of notice of such decision or
within such further time as the Commissioner…may allow.” Id. This statutory filing period has
been altered by the Secretary and promulgated at 20 C.F.R. § 422.210(c), which states:
Any civil action described in paragraph (a) of this section 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, institution, or agency, 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.
If a plaintiff successfully rebuts the presumption contained in § 422.210(c), the Commissioner
then has the burden to show plaintiff received actual notice under the regulation. McCall v.
Bowen, 832 F.2d 862, 864 (5th Cir.1987) (citation omitted). The sixty-day limitations period
in 42 U.S.C. § 405(g) “is a condition on the waiver of sovereign immunity” that must be “strictly
construed.” Miller v. Colvin, Case No. CIV-16-26-M, 2016 WL 7670056, at *3 (W.D. Okla.
Nov. 30, 2016) (quoting Bowen v. City of New York, 476 U.S. 467, 479 (1986); citing Cook v.

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Comm'r of Soc. Sec., 480 F.3d 432, 438 (6th Cir. 2007) (affirming dismissal of § 405(g) action
filed one day after the claimant’s sixty-day limitations period expired).  
In Bowen v. City of New York, 476 U.S. 467, 478 (1986), the United States Supreme
Court held that the 60-day filing period is a statute of limitations and not a jurisdictional bar.
Accord Leslie v. Bowen, 695 F. Supp. 504, 506 (D. Kan. 1988). Therefore, the proper standard
of review is under Federal Rule of Civil Procedure 12(b)(6), rather than 12(b)(1). Gossett v.
Barnhart, 139 F. App'x 24, 25 n.1 (10th Cir. 2005).
Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon
which relief can be granted.” Fed. R. Civ. P. 12(b)(6). In deciding a motion under Rule
12(b)(6), the court must “accept as true all well-pleaded factual allegations ... and view these
allegations in the light most favorable to the plaintiff.” Casanova v. Ulibarri, 595 F.3d 1120,
1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)).
However, a plaintiff may not rely on mere labels or conclusions, “and a formulaic recitation of
the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007).
If, on a Rule 12(b)(6) motion, 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.
Fed. R. Civ. P. 12(d). “All parties must be given a reasonable opportunity to present all the
material that is pertinent to the motion.” Id. See also, Price v. Philpot, 420 F.3d 1158, 1167
(10th Cir. 2005). But a court is not required to convert a motion to dismiss to one for summary
judgment. Rather, that determination is left to the sound discretion of the court. See Humood v.
City of Aurora, No. 12-cv-02185-RM-CBS, 2014 WL 4345410, at *5 (D. Colo. Aug. 28, 2014).

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B.

Application

Ordinarily, a statute of limitations argument is presented as an affirmative defense. The
issue may be resolved on a Rule 12(b)(6) motion where the application of the limitations period
“is apparent on the face of the complaint.” Dummar v. Lummis, 543 F.3d 614, 619 (10th Cir.
2008) (citing Aldrich v. McCulloch Properties., Inc. 627 F.2d 1036, 1041 & n.4 (10th Cir.
1980)). Here, the application of the limitations period is not clear on its face; rather, the
Complaint indicates that the civil action is timely filed. See [#1]. Therefore, the action is not
amenable to dismissal under the Rule 12(b)(6) standard. Indeed, both Parties urge the court to
consider information outside the four corners of the Complaint to resolve the issue presented; the
Commissioner attached an affidavit to her Motion to Dismiss, and Plaintiff filed an exhibit titled
“Neuropsychological Evaluation,” in support of his representation that he suffers from a
traumatic brain injury. See [#13].
While this court could convert the Motion to Dismiss to one for summary judgment, such
motions practice is not contemplated by the Order for Preparation for Joint Case Management
Plan entered by the court. [#8]. Instead, the Order specifically advised the Parties “NOTICE:
This Order contains provisions that alter substantively the way in which Social Security
Appeals are managed and marshaled. Please read this Order carefully and thoroughly to
ensure compliance with the orders of the court.“ [Id. at 1 (emphasis in original)]. The Order
contemplated that the Commissioner would file an Answer to the Complaint, which “shall
consist of a certified copy of the transcript of the administrative record plus any affirmative
defense, which if then not filed, shall be waived.” [Id. at 2]. Plaintiff would then file his
Opening Brief. The Commissioner would have had the opportunity to argue the statute of

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limitations defense in her Response Brief, to which Plaintiff would have filed a reply and cited
any pertinent evidence to rebut the statute of limitations defense. See id.
The Commissioner never sought leave to diverge from the Order and file a motion for
summary judgment. In this court’s opinion, her failure to do so results in two distinct and
important difficulties. First, Social Security appeals are managed in this District pursuant to the
Local Rules of Practice of the United States District Court for the District of Colorado – AP
Rules.

D.C.COLO.LAPR Rule 1.1(a).

The AP Rules expressly state that “[m]otions for

summary judgment shall not be filed.” Id. at 16.1(b). The form JCMP includes a section in
which the Parties can bring “other matters” to the court’s attention. [#8-1 at 2]. While the court
could have decided to proceed first and separately with the statute of limitations issue through a
motion for summary judgment, the Commissioner’s unilateral action deprived it of the
opportunity to consider what procedure best promotes fairness to the Parties and judicial
efficiency for the court. Second, more importantly, the Commissioner’s failure to seek leave to
file a dispositive motion resulted in briefing that reflects the improper Federal Rule applicable to
the motion and implicitly shifts the burden of proof to Plaintiff, which could be significant for an
individual proceeding pro se who is nonetheless required to comply with the same substantive
law and procedural rules as a represented party. See Murray v. City of Tahlequah, Okl., 312 F.3d
1196, 1199 n.3 (10th Cir. 2002); Dodson v. Bd. of Cty. Comm'rs, 878 F. Supp. 2d 1227, 1236 (D.
Colo. 2012).
Accordingly, this court respectfully RECOMMENDS that the Motion to Dismiss be
DENIED, and ORDERS that the Parties confer to prepare the JCMP, as ordered by the court on
March 29, 2016, and submit the JCMP to the court no later than December 15, 2017. In the
interim, the Parties should also confer regarding the date on which Plaintiff received the Appeal

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Council’s notice, and whether he has in his possession evidence to rebut the statutory
presumption. If the statute of limitations remains a defense the Commissioner wishes to assert,
the Commissioner can move for leave to file a motion for summary judgment or the court can
address the Parties’ arguments and supporting evidence in the context of the briefing as
described above.
II.

Motion for Summary Judgment
Mr. O’Connor seeks judgment in his favor as a matter of law that he is entitled to

disability benefits in the amount of $600,000. See [#22]. As an initial observation, the Motion
for Summary Judgment contains only a recitation of the procedural history of this case to date
and the legal standard governing motions made pursuant to Federal Rule of Civil Procedure 56.
This is insufficient to award Plaintiff the relief he seeks. See Fed. R. Civ. P. 56(c)(1) (“A party
asserting that a fact cannot be or is genuinely disputed must support the assertion by (A) citing to
particular parts of materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials; or (B) showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.”). More importantly, and as stated
above, the adjudication of this action should proceed pursuant to the JCMP, unless the court
otherwise orders. Through his Complaint, Plaintiff seeks judicial review of the Commissioner’s
final decision. As discussed above, the AP Rules expressly state that “[m]otions for summary
judgment shall not be filed.” D.C.COLO.LAP.R 16.1(b). And there is no reason evident to this
court why the arguments Mr. O’Connor raises cannot be adequately considered within the

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context of the briefing contemplated in a JCMP. For these reasons, the court respectfully
RECOMMENDS that the Motion for Summary Judgment be DENIED.
CONCLUSION
For the foregoing reasons, the court respectfully RECOMMENDS:
1. The Motion to Dismiss [#11] be DENIED without prejudice; and
2. The Motion for Summary Judgment be DENIED without prejudice.2
Additionally, IT IS ORDERED:
1. The Commissioner shall file her Answer and Administrative Record on or before
December 8, 2017; and
2. The Parties shall submit their JCMP, as contemplated by the court’s March 29, 2016
Order, [#8 at 3], on or before December 15, 2017.

2

Within fourteen days after service of a copy of the Recommendation, any party may serve and
file written objections to the Magistrate Judge’s proposed findings and recommendations with
the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that
does not put the District Court on notice of the basis for the objection will not preserve the
objection for de novo review. “[A] party’s objections to the magistrate judge’s report and
recommendation must be both timely and specific to preserve an issue for de novo review by the
district court or for appellate review.” United States v. One Parcel of Real Property Known As
2121 East 30th Street, Tulsa, Oklahoma, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make
timely objections may bar de novo review by the District Judge of the Magistrate Judge’s
proposed findings and recommendations and will result in a waiver of the right to appeal from a
judgment of the district court based on the proposed findings and recommendations of the
magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (District Court’s
decision to review a Magistrate Judge’s recommendation de novo despite the lack of an objection
does not preclude application of the “firm waiver rule”); International Surplus Lines Insurance
Co. v. Wyoming Coal Refining Systems, Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to
object to certain portions of the Magistrate Judge’s order, cross-claimant had waived its right to
appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992)
(by their failure to file objections, plaintiffs waived their right to appeal the Magistrate Judge’s
ruling). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver
rule does not apply when the interests of justice require review).
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DATED: November 15, 2017

BY THE COURT:

s/ Nina Y. Wang __________
United States Magistrate Judge

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