Seward v. Commissioner of Social Security

Filing 22

ORDER granting 14 Motion to Dismiss. See attached Ruling and Order for details. Signed by Judge Robert N. Chatigny on 12/16/2016. (Rickevicius, L.) (Additional attachment(s) added on 12/19/2016: # 1 Replacement Ruling and Order) (Sundie, T).

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Judy Diane Seward,
Plaintiff,
v.
Carolyn W. Colvin,
Commissioner of
Social Security,
Defendant.

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Case No. 3:16-cv-301 (RNC)

RULING AND ORDER
Plaintiff Judy Diane Seward brings this action seeking
judicial review of a final decision of the Commissioner of Social
Security regarding an application for supplemental security
income benefits (SSI) under Title XVI of the Social Security Act.
The Commissioner argues that the action should be dismissed
because plaintiff missed the 60-day deadline for seeking court
review and equitable tolling does not apply.

In addition, the

Commissioner argues that the decision in question is fully
favorable to the plaintiff and thus not subject to judicial
review.

I agree with the Commissioner and therefore grant the

motion to dismiss.
I.

Background
Plaintiff applied for SSI benefits on August 30, 2011,

alleging a disability onset date of November 1, 2004.

She had

previously filed applications in August 2005 under Titles II and

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XVI of the Act alleging the same onset date.

Those prior claims

had been denied on April 14, 2008.
Plaintiff’s August 2011 application for SSI benefits was
denied initially and on reconsideration.

On June 28, 2013,

Administrative Law Judge Matthew Kuperstein granted the
application, finding that plaintiff has been disabled since
August 30, 2011, the date the application was filed.

The ALJ

stated that he did not find a basis for reopening plaintiff’s
prior applications.

The ALJ further explained that because SSI

does not become payable until the month after the month the
application is filed, 20 C.F.R. § 416.335, his decision was fully
favorable to the plaintiff, even though he did not adopt her
alleged onset date.

See Balardi v. Barnhart, 33 F. App’x 562,

564 (2d Cir. 2002)(in a Title XVI case, the alleged onset date is
merely “administrative dicta”).
Plaintiff asked the Appeals Council to review the ALJ’s
decision.

On February 2, 2015, the Appeals Council sent her

notice of its denial of her request.

The notice informed her

that she could ask for court review by filing a complaint in this
Court within 60 days of her receipt of the notice, which meant
she had to file a complaint on or before April 8, 2015.

The

notice informed her that copies of the complaint and the summons
issued by the Court would have to be delivered by her or her
representative to the U.S. Attorney.

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Plaintiff did not file this

action until February 26, 2016, more than ten months beyond the
60-day deadline.
With regard to the lengthy delay in filing, plaintiff states
the following.

After receiving the notice from the Appeals

Council on February 10, 2015, she called the attorney who had
represented her during the administrative process.

The call was

not returned until April 16, 2015, and she went to see the
attorney a week later.

At that time, the attorney told her he

would need $600 to cover court costs.

After speaking with the

attorney, plaintiff decided she did want him to represent her any
longer.

Two weeks later, on May 7, 2015, she sent a letter to

the U.S. Attorney’s office asking for help with regard to the
steps she would have to take to get disability benefits
retroactive to 2005.

She did not get a response.

She eventually

called the U.S. Attorney’s office on February 23, 2016, then
filed her complaint three days later.
II.

Discussion
Section 405(g) of the Social Security Act provides that a

claimant may seek judicial review of a final decision of the
Commissioner by commencing a civil action within 60 days after
receiving notice of the decision (or within such further time as
the Commissioner may allow).

The Supreme Court has held that the

60-day requirement is not jurisdictional.
York, 476 U.S. 467, 478 (1986).

Bowen v. City of New

But the 60-day period must be

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enforced unless equitable tolling applies.

To gain the benefit

of equitable tolling, a claimant must show that “[she] has been
pursuing [her] rights diligently” and that “some extraordinary
circumstance stood in [her] way.”

Torres v. Barnhart, 417 F.3d

276, 279 (2d Cir. 2005).
Equitable tolling “is appropriate only in rare and
exceptional circumstances in which a party is prevented in some
extraordinary way from exercising [her] rights.”

Twumwaa v.

Colvin, No. 13 CIV. 5858 (AT)(JLC), 2014 WL 1928381, at *4
(S.D.N.Y. May 14, 2014) (citation and quotation marks omitted).
For example, the Second Circuit has permitted equitable tolling
when a claimant “fails to seek judicial review because of mental
impairment” and when “misleading or covert action by the
government or an attorney impedes a claimant from timely pursuing
the correct judicial avenues.”

Bender v. Astrue, No. 09-cv-

5738KAM, 2010 WL 3394264, at *5 (E.D.N.Y. Aug. 23, 2010)(citing
Canales v. Sullivan, 936 F.2d 755, 758-59 (2d Cir. 1991); State
of N.Y. v. Sullivan, 906 F.2d 910, 917 (2d. Cir. 1990)).
Plaintiff bears the burden of demonstrating that the particular
circumstances of her situation warrant equitable tolling.

Boos

v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000).
The circumstances on which plaintiff relies fall short of
satisfying the demanding standard that must be met for equitable
tolling to apply.

Accepting plaintiff’s allegations as true,

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they may be construed to raise the following argument in support
of equitable tolling: (1) plaintiff promptly contacted her lawyer
soon after receiving the Appeals Council notice but he failed to
respond for about two months, (2) she reasonably relied on him to
protect her interest until they met in his office and he demanded
money she did not have, leading her to conclude that she did not
want him to represent her, (3) soon after meeting with the
lawyer, plaintiff wrote to the U.S. Attorney’s office for help,
(4) she thought the letter served to protect her interest as a
self-represented party and expected to receive a timely response,
(5) she received no response, (6) having received no response for
over nine months, she called the U.S. Attorney’s office and filed
her complaint three days later.

This chronology does not support

a reasonable finding that plaintiff acted diligently throughout
the period she seeks to have tolled and was prevented from filing
her complaint due to extraordinary circumstances.
Assuming plaintiff acted with due diligence in contacting
her lawyer and relying on him to file a complaint on her behalf
(or obtain an extension of time), and assuming further that his
failure to respond could constitute an extraordinary circumstance
preventing timely filing, at most these circumstances would
arguably permit tolling of the 60-day period through April 23,
2015.

Even on this view of the case, plaintiff still had to file

a complaint within 60 days after she saw the lawyer, that is,

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before the end of June 2015.

No complaint was filed.

Instead,

plaintiff wrote to the U.S. Attorney and apparently took no
further action for approximately nine months.
Plaintiff’s submissions in opposition to the motion to
dismiss may be understood to suggest that her letter to the U.S.
Attorney’s office should be treated as the equivalent of filing a
complaint in court for purposes of the 60-day deadline.

But the

Appeals Council notice specifically stated that the complaint had
to be filed with this Court and copies of the complaint delivered
to the U.S. Attorney along with a summons issued by the Court.
While the notice might have been clearer - for example, by
specifically stating that the complaint had to be delivered to
the Office of the Clerk of Court in the first instance - the lack
of greater clarity in the form notice cannot constitute an
extraordinary circumstance justifying equitable tolling.

There

is no allegation that plaintiff has difficulty reading or
understanding English and her handwritten submissions indicate
that she is quite capable of both.
Plaintiff may have felt it was appropriate to wait a week or
two after writing to the U.S. Attorney’s office before following
up with a phone call.

But she had an obligation to act

diligently to protect her rights and could not wait indefinitely.
Plaintiff offers no allegation that would permit the Court to
find that she acted diligently after writing to the U.S. Attorney

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notwithstanding the lengthy delay that ensued without any follow
up on her part.

Nor does plaintiff allege an extraordinary

circumstance that prevented her from acting.

In particular,

there is no allegation that she was misled by the U.S. Attorney’s
office or the Commissioner.
tolling does not apply.

For all these reasons, equitable

See Marquez v. Comm’r of Soc. Sec., 12

CIV. 8151 (PAE), 2013 WL 3344320, at *5 (S.D.N.Y. July 2, 2013)
(no equitable tolling when claimant failed to demonstrate that
extraordinary circumstances, misunderstanding, or incapacity
prevented her from filing within 60-day period); Twumwaa v.
Colvin, No. 13 CIV. 5858(AT)(JLC), 2014 WL 1928381, at *4
(S.D.N.Y. May 14, 2014) (declining to apply equitable tolling,
noting that “[w]hile the result here may be harsh, given that
[plaintiff] only missed her filing deadline by seven days, the
60–day limit is a statute of limitations that must be strictly
construed because it is a condition of a sovereign immunity
waiver.”).
In addition to relying on the 60-day statute of limitations
as a barrier to court review, the Commissioner argues that
judicial review is not available to the plaintiff because the
ALJ’s decision was fully favorable to her.

The relevant statute,

42 U.S.C. § 405(g), “makes no provision for judicial review of a
determination favorable to the complainant.”
576 F.2d 12, 18 (2d Cir. 1978).

Jones v. Califano,

Plaintiff filed her application

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for SSI benefits on August 30, 2011 and the ALJ determined that
she was

eligible for SSI as of that date.

Plaintiff contends

that she was disabled as of November 1, 2004, and it is apparent
she would like to recover benefits retroactive to that date.
However, as the Commissioner notes, SSI is not payable for any
period prior to the month after the application is filed.

See 20

C.F.R. § 416.335.
III.

Conclusion
Accordingly, the motion to dismiss is hereby granted.
So ordered this 16th day of December 2016.
/s/
Robert N. Chatigny
United States District Judge

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