Baynham v. Social Security Administration, Commissioner of

Filing 16

MEMORANDUM AND ORDER: MOTION to Dismiss 12 will be treated as a motion for summary judgment. Defendant shall file record no later than 7/1/14. Within 21 days of the filing of the record, plaintiff will file a brief on the issue of whether equitable tolling of the statute of limitations is justified. Defendant shall file a response within 21 days of the filing of the plaintiff's brief. See order for further details. Signed by U.S. District Senior Judge Sam A. Crow on 5/30/14. Mailed to pro se party Tyrone La-Mar Baynham by regular & certified mail; Certified Tracking Number: 7010 2780 0003 1927 1619. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

TYRONE LA-MAR BAYNHAM,
Plaintiff,
vs.

Case No. 14-2053-SAC

CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.

MEMORANDUM AND ORDER
This is an action seeking review of the final decision of
the Commissioner of Social Security that plaintiff was not
disabled (Doc. 1).

Defendant filed a motion to dismiss for lack

of subject matter jurisdiction (Doc. 12-13).

Plaintiff has not

directly responded to the motion, but did file a pleading
indicating that she had written to SSA in Falls Church, Virginia
to ask for an extension in November 2013 to appeal to federal
court (Doc. 15).

Defendant seeks to dismiss the complaint

because it was not filed within 60 days from the date of receipt
of the notice of the Appeals Council action (Doc. 13 at 1-2).
As a preliminary matter, the court would note that
defendant filed this motion as a Fed.R.Civ.P. 12(b)(1) motion
alleging that the court lacks subject matter jurisdiction.
However, in the case of Thomas v. Astrue, Case No. 11-4088-SAC,

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defendant filed a motion seeking to dismiss the case for failure
to state a claim upon which relief can be granted under
Fed.R.Civ.P. 12(b)(6) because the complaint was not timely filed
(D. Kan. Oct. 7, 2011, Doc. 9).

This is the same issue which is

before the court in this case.
In the case of Bowen v. City of New York, 476 U.S. 467, 478
(1986), the U.S. Supreme Court held that the 60-day requirement
for filing a review of the agency action is not jurisdictional,
but rather constitutes a period of limitations.

For this

reason, the court will treat the motion as a motion to dismiss
for failure to state a claim upon which relief can be granted
pursuant to Fed.R.Civ.P. 12(b)(6).
I.

Applicable legal standards
42 U.S.C. § 405(g) provides that a party may obtain

judicial review in federal district court of any “final
decision” of the Commissioner after a hearing.

The civil action

seeking judicial review must be filed within sixty (60) days
after the mailing to the party of such decision or within such
further time as the Commissioner may allow.

The term “final

decision” is left undefined by the Social Security Act and its
meaning is to be fleshed out by the Commissioner’s regulations.
Weinberger v. Salfi, 422 U.S. 749, 766, 95 S. Ct. 2457, 2467
(1975).
The regulation concerning judicial review is as follows:
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(a) General. A claimant may obtain judicial
review of a decision by an administrative
law judge if the Appeals Council has denied
the claimant's request for review, or of a
decision by the Appeals Council when that is
the final decision of the Commissioner....
(c) Time for instituting civil action. 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
administrative law judge'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(a, c, emphasis added).

Plaintiff can

request an extension of time to file her action in federal
district court:
Any party to the Appeals Council's decision
or denial of review, or to an expedited
appeals process agreement, 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. The request must be
filed with the Appeals Council, or if it
concerns an expedited appeals process
agreement, with one of our offices. If you
show that you had good cause for missing the
deadline, the time period will be extended.
To determine whether good cause exists, we

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use the standards explained in §§ 404.911,
416.1411.
20 C.F.R. §§ 404.982, 416.1482.
In the case of Bowen v. City of New York, 476 U.S. 467,
480, 106 S Ct. 2022, 2030, 90 L. Ed.2d 462 (1986), the court
held that equitable tolling principles applied to the 60 day
requirement set forth in the statute of limitations contained in
§ 405(g).

A limitations period may be equitably tolled if the

petitioner diligently pursues his claims and demonstrates that
the failure to timely file was caused by extraordinary
circumstances beyond his control.

Fleming v. Evans, 481 F.3d

1249, 1254 (10th Cir.2007); Jackson v. Astrue, 506 F.3d 1349,
1353 (11th Cir. 2007)(in a case involving the application of
equitable tolling under § 405(g), the court held that a claimant
must justify her untimely filing by a showing of extraordinary
circumstances); Torres v. Barnhart, 417 F.3d 276, 279 (2nd Cir.
2005)(in a case involving the application of equitable tolling
under § 405(g), the court held that the doctrine of equitable
tolling permits courts to deem filings timely where a litigant
can show that he has been pursuing his rights diligently and
that some extraordinary circumstance stood in his way).
II.

Was plaintiff’s complaint timely filed in light of the fact

that plaintiff alleges that she requested from defendant in

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November 2013 an extension of time to file her appeal to the
federal court?
On November 5, 2013, the Appeals Council mailed a notice to
plaintiff informing her of the action of the Appeals Council
denying plaintiff’s request for review, and notifying plaintiff
that she had 60 days from receipt of the letter to file a civil
action seeking judicial review of the agency action.

The letter

indicates that the 60 days starts from the day after plaintiff
receives the letter, and that it will be assumed that plaintiff
received the letter 5 days after the date on it unless plaintiff
can show that they did not receive it within the 5 day period
(Doc. 13-1, Exhibit 2).

Thus, the assumption is that plaintiff

received the letter by November 12, 2013.1

Plaintiff did not

file her complaint in this court until February 6, 2014 (Doc.
1), which is more than 60 days after November 12, 2013.
Plaintiff, who is pro se, alleges in a pleading that she
wrote defendant to request an extension in November 2013 to file
her appeal in federal court (Doc. 15).

However, plaintiff has

not produced any evidence in support of this assertion.
Defendant has filed a declaration from Kathie Hartt from the
Office of Disability Adjudication and Review stating that she is
not aware of any request for an extension of time to file a
civil suit (Doc. 13-1 at 3).
1

Because November 10, 2013 fell on a Sunday, and Monday, November 11, 2013 was a federal holiday, the 5th day
for mailing purposes would be Tuesday, November 12, 2013.
5

The question before the court is whether plaintiff has
diligently pursued her claims and has demonstrated that the
failure to timely file was caused by extraordinary circumstances
beyond her control.

In deciding the question raised in the

motion, the court will review other cases that have addressed
this issue.

In the case of Rivera-Gonzalez v. Astrue, 2011 WL

2434071 (M.D. Fla. June 16, 2011), plaintiff’s counsel requested
an extension of time within the 60 day limitations period and
the request was presumably still pending before the Appeals
Council.

The court noted that the case of Jackson v. Astrue,

506 F.3d at 1357, seemed to imply that a timely-filed motion for
an extension of time would weigh in favor of an equitable
tolling argument.

The court therefore concluded that, in light

of the specific facts of the case, that plaintiff’s complaint
was subject to equitable tolling.

2011 WL 2434071 at *2.

In the case of Baker v. Commissioner of Social Security,
2011 WL 1598632 (E.D. Mich. Apr. 28, 2011), plaintiff filed her
complaint in the district court approximately 20 days beyond the
filing deadline.

The court stated that plaintiff had the burden

of establishing the exceptional circumstances that warrant
equitable tolling, and noted a number of factors that should be
considered when determining when equitable tolling should apply.
2011 WL 1598632 at *3.

However, unlike the case in Cook v.

Commissioner of Social Security, 480 F.3d 432, 437 (6th Cir.
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2007), in which the court noted that the plaintiff did not
allege that he requested an extension of time or communicated
with the SSA (Social Security Administration) in any way prior
to filing his complaint in federal court, in Baker, the court
found that plaintiff did allege that she requested an extension
of time from the SSA and provided affidavit evidence and
documentary evidence in support of her assertion.

Defendant

provided a declaration from an employee of SSA indicating that
the SSA never received the alleged request for an extension.
The court found that plaintiff made a good faith effort to seek
a timely extension from the Appeals Council.

Although the court

indicated that questions may exist as to whether the request was
in fact received by the Appeals Council, the court concluded
that the evidence of record supported the allegation that the
request was sent.

The court found that the evidence supported

plaintiff’s contention that she diligently pursued her rights by
requesting an extension from the SSA and then filing her
complaint just twenty days after the deadline had passed; the
court further determined that there was no substantial prejudice
to the Commissioner where plaintiff’s complaint was filed within
30 days of the deadline.
denied.

Therefore, the motion to dismiss was

2011 WL 1598632 at *3-4.

In the case of Carroll v. Astrue, 2010 WL 2133866 (N.D.
Ind. May 24, 2010), plaintiff filed her complaint in federal
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district court approximately 3 ½ months after the Appeals
Council denied her request for review.

Plaintiff alleged that

she had requested an extension of time to file suit during a
telephone conversation with a Social Security official during
the relevant period and that she was told that her request was
being considered by the Appeals Council.

She also stated that

she relied on her first law firm’s word that it would file a
timely extension on her behalf, which the Appeals Council had
not acknowledged.

The court found that plaintiff’s allegations

were sufficient to show circumstances that kept her from making
a timely request, and the court tolled the 60 day limitation.
2133866 at 1-3.
In the case of Sanchez v. Barnhart, 2004 WL 1005589 (W.D.
Wisc. May 4, 2004), the court found that there was a factual
dispute regarding whether plaintiff sought an extension of time
from the Appeals Council.

The court took judicial notice of the

fact that the Appeals Council grants extensions routinely and
that it sometimes takes several months for it to respond to a
claimant’s request for an extension.

The court stated that,

assuming the plaintiff filed a request for an extension with the
Appeals Council, the Appeals Council’s failure to respond in a
timely fashion to plaintiff’s request for an extension could
provide an equitable reason to toll the limitations period.

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Accordingly, the motion to dismiss was denied.

2004 WL 1005589

at *2.
Finally, in the case of Aschettino v. Sullivan, 724 F.
Supp. 1116 (W.D. N.Y. 1989), plaintiff commenced his civil
action on May 17, 1989, well beyond the 60 days of notification
of the Appeals Council decision of July 5, 1988.

However, the

court noted that plaintiff’s attorney had inquired in writing
concerning the status of a request for additional time well
within the 60-day period.

The request was never answered by the

Appeals Council until December 29, 1988, well beyond the 60-day
period.

On these facts, the court tolled the statute of

limitations.

724 F. Supp. at 1117-1118.

As the court held in Thomas, Case No. 11-4088-SAC (D. Kan.
Feb. 21, 2012, Doc. 14), at a minimum, the above cases provide
support for equitably tolling the statute of limitations if a
claimant filed a request for an extension of time with the
Appeals Council prior to the 60-day limit for filing an action
in federal court, and that request remained pending until after
the 60-day limit had expired.

As was the case in Thomas, the

only information before the court at this time is plaintiff’s
assertion in a pleading that she requested additional time to
file a complaint.

Likewise, defendant has filed a declaration

by an employee of the defendant stating that she is “not aware
of any request for an extension of time to file a civil action”
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(Doc. 13-1 at 3).

The court does not have before it either the

administrative record or any affidavit or other documentary
evidence from the plaintiff in support of her assertion.
The court’s function on a Rule 12(b)(6) motion is not to
weigh potential evidence that the parties might present, but to
assess whether the plaintiff’s complaint alone is legally
sufficient to state a claim for which relief can be granted.
Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991).

The

court accepts all well-pled factual allegations as true and
views those allegations in the light most favorable to the
nonmoving party.
(10th Cir. 2009).

United States v. Smith, 561 F.3d 1090, 1098
The court will not dismiss a complaint unless

it appears beyond doubt that the plaintiff can prove no set of
facts in support of her claim which would entitle her to relief.
Currier v. Doran, 242 F.3d 905, 917 (10th Cir. 2001).
However, Fed.R.Civ.P. 12(d) provides:
Result of Presenting Matters Outside the
Pleadings. 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. All
parties must be given a reasonable
opportunity to present all the material that
is pertinent to the motion.
As noted above, in addition to plaintiff’s complaint, the
parties have presented additional evidence, including a
declaration from an employee of the defendant.
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Plaintiff has

asserted that she filed a request for an extension of time with
the defendant in November 2013.

Furthermore, the court does not

have before it either the administrative record or any
affidavits or other documentary evidence from the plaintiff to
support her assertion.

For this reason, as the court held in

Thomas, the parties are hereby notified that the court will
treat defendant’s motion to dismiss as a motion for summary
judgment under Fed.R.Civ.P. 56.
IT IS THEREFORE ORDERED that defendant shall file the
record in this case no later than July 1, 2014.

Defendant shall

include in the record in this case any and all correspondence or
record of any communications with plaintiff and/or her attorney
or legal representative on or after the date of the Appeals
Council decision.
IT IS FURTHER ORDERED that plaintiff, within 21 days of the
filing of the record, shall file a brief with the court on the
issue of whether equitable tolling of the statute of limitations
is justified on the facts of this case.

Plaintiff’s brief shall

include any evidence, including affidavits or other documentary
evidence, regarding her alleged request to the Appeals Council
for additional time to file a complaint in federal court.
Defendant shall file a response in support of their motion
within 21 days of the filing of plaintiff’s brief.

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Dated this 30th day of May 2014, Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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