Petrey v. Social Security Administration, Commissioner of

Filing 15

MEMORANDUM AND ORDER granting 3 Motion to Dismiss. Signed by U.S. District Senior Judge Sam A. Crow on 7/29/14. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRENDA T. PETREY, o/b/o
BRIAN PETREY,
Plaintiff,
vs.

Case No. 13-1472-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

failure to state a claim upon which relief can be granted (Doc.
3).

Plaintiff filed a response brief on July 3, 2014 (Doc. 13),

and a reply brief was filed on July 17, 2014 (Doc. 14).
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. 3 at 2).
I.

Was the complaint timely filed?
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
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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:
(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.

20 C.F.R. §§ 404.982, 416.1482.

2

It is undisputed that the notice of the Appeals Council
action is dated October 17, 2013 (Doc. 3-1 at 21).

Plaintiff

filed her complaint on December 25, 2013 (Doc. 1).

The

regulation cited above states that the civil action must be
instituted within 60 days after the Appeals Council’s notice of
denial of the request for review is received by the claimant.
The regulation further establishes a rebuttable presumption that
receipt of notice occurs within 5 days after the date of such
notice unless the plaintiff makes a reasonable showing to the
contrary.

Leslie v. Bowen, 695 F. Supp. 504, 505 (D. Kan.

1988).
Allowing 5 days for receipt of the notice, the 65th day
after October 17, 2013 would be December 21, 2013.
December 21, 2013 fell on a Saturday.

However,

Therefore, plaintiff

would have had until Monday, December 23, 2013 to file her
complaint, Fed.R.Civ.P. 6(a)(1)(C), unless plaintiff is able to
rebut the presumption that receipt of notice occurred within 5
days after the date of such notice.1
Plaintiff’s counsel presented an affidavit signed by
attorney Gladys Hoefer stating that she received the attached
Notice of Appeals Council action (dated October 17, 2013) on

1

42 U.S.C. § 416(j) states that under any regulation issued by the Commissioner, if a period within which an act is
required to be done ends on a Saturday, Sunday, legal holiday, or any other day declared to be a nonwork day for
Federal employees by statute or Executive Order, then such act shall be considered as done within such period if it is
done on the first day thereafter which is not a Saturday, Sunday, legal holiday, or any other day declared to be a
nonwork day for Federal employees by statute or Executive Order.
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October 25, 2013.

She further asserts that the postmark on the

envelope containing the above notice was October 22, 2013, and
that Ms. Hoefer, as a matter of normal office practice, noted
the date on Exhibit B.

Ms. Hoefer also stated that she noted on

Exhibit B the date of receipt, October 25, 2013 on the bottom on
the Notice of Appeals Council action (Doc. 13-2).

Exhibit B

shows a handwritten notation “p/m 10-22-13” and also on the
bottom is a handwritten notation “rec’d 10-25/13” (Doc. 13-1 at
1).

Defendant also filed a declaration under oath from an

agency official stating that the Notice of Appeals Council
Action was mailed to plaintiff on October 17, 2013 (Doc. 3-1 at
3).
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).
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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 affidavits
and declarations under oath.

For this reason 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.
In Leslie v. Bowen, 695 F. Supp. 504, 505 (D. Kan. 1988),
plaintiff filed his complaint 71 days after the date of the
Appeals Council notice denying plaintiff’s request for review.
The court held that an affidavit alone, without other evidence,
such as a post-marked envelope, was insufficient to rebut the 5day presumption.

695 F. Supp. at 506-507.

Case law makes clear

that the reasonable showing requirement is not satisfied by a
claimant’s or attorneys mere assertion, even in a sworn
affidavit, that he received the Commissioner’s notice after the
five-day presumptive receipt date.

See Fleming v. Commissioner

of Social Security, 2012 WL 6738473 at *3 (E.D. Mich. Oct. 29,
2012)(recommendation and report collecting cases showing that
affidavit alone insufficient), 2012 WL 6738475 (E.D. Mich. Dec.
5

31, 2012, adopting recommendation and report); Pettway v.
Barnhart, 233 F. Supp.2d 1354, 1356-1357 (S.D. Ala. 2002)
(collecting cases showing that affidavit alone insufficient).
In the case of Lozano v. Ashcroft, 258 F.3d 1160, 1162 (10th
Cir. 2001), the Department of Justice (DOJ) had sixty days from
the date it received the decision of the EEOC to modify or
reject their findings.

However, the DOJ did not reject the EEOC

findings under 72 days after the EEOC decision letter was
mailed.

DOC asserted that it did not receive the EEOC findings

until 15 days after the date on the decision.
1163.

258 F.3d at 1162-

The court stated that it had implicitly sanctioned either

a 5-day or a 3-day presumption of mailing time.

The court

stated that the DOJ’s rejection was untimely under either a 3day or a 5-day standard.

Therefore, the key question was

whether the DOC successfully rebutted this presumption of
delivery.

258 F.3d at 1165.

The court then stated:

Furthermore, although we will not set a
bright-line measure of the weight of
evidence necessary to rebut a mailing-time
presumption, we note that a date stamp, even
a legible original version of a date stamp,
may not be sufficient. The Second Circuit
has rightly observed that date-of-receipt
notations may be “self-serving” and requires
further corroboration of that date by an
affidavit or other admissible evidence.
Sherlock v. Montefiore Med. Ctr., 84 F.3d
522, 526 (2d Cir.1996). In determining the
date of actual receipt, a court may rely
upon affidavits stating personal knowledge
of the receipt date. See Witt, 136 F.3d
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[1424 1429–30 (10th Cir. 1998)] (where
document mailed on January 28, affidavit by
claimant stating he received it mid-March
sufficient to rebut five-day receipt
presumption).
258 F.3d at 1166 (emphasis added).
The evidence presented in the case before the court is that
plaintiff’s counsel presented an affidavit asserting that Notice
of Appeals Council Action was postmarked on October 22, 2013 and
was received on October 25, 2013, and that she noted these dates
on the Notice of Appeals Council Action as a matter of normal
office procedure.

Counsel also submitted the Notice of Appeals

Council Action with the hand-written notations consistent with
counsel’s assertions in the affidavit.

Therefore, the facts of

this case mirror the court’s statements in Lozano and Sherlock
that date-of-receipt notations require further corroboration by
an affidavit or other admissible evidence in order to rebut a
mailing-time presumption.

Plaintiff’s counsel presented date-

of-receipt notations corroborated by an affidavit.
In Lozano, although the court did not set a bright-line
measurement of the weight of evidence necessary to rebut a
mailing-time presumption, the court went on to say that date-ofreceipt notations require further corroboration of that date by
an affidavit or other admissible evidence.

In the case before

the court, plaintiff presented a date-of-receipt and date-ofpostmark notations, and an affidavit by counsel affirming that
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those were the dates of receipt and the postmark date on the
envelope, and that the dates were noted on the Notice of Appeals
Court Action as a matter of normal office practice.

On the

facts before the court, the court finds that plaintiff has
rebutted the 5-day presumption with a date-of-receipt notation
corroborated by an affidavit.
Plaintiff has established that the notice was postmarked on
October 22, 2013 and received on October 25, 2013 by plaintiff’s
counsel.

Under the regulation, plaintiff had 60 days after the

Notice was received to file her civil action, or until December
24, 2013.

The 5-day presumption is inapplicable because it is

only a presumption of the date of receipt of the notice, and
plaintiff’s own evidence establishes that the Notice was
received on October 25, 2013 by her counsel.

There is no

evidence in the record that it was received by plaintiff at a
later date.

December 24, 2013 was not a weekend or holiday, and

it was not a nonwork day for Federal employees.
day was December 24, 2013.

Thus, the 60th

Plaintiff did not file her complaint

until December 25, 2013, or 61 days after the Notice from the
Appeals Council was received by plaintiff’s counsel.

The

complaint was therefore filed out of time.2

2

As in Cook v. Commissioner of Social Security, 480 F.3d 432, 437-438 (6th Cir. 2007), the complaint was filed
one day late. As the court stated in that case, “this case is a classic reminder of the risks that applicants take for no
apparent reason by waiting until the very end of a filing period to initiate their lawsuits.” As this court noted in
Leslie v. Bowen, 695 F. Supp. at 507, if difficulty in filing the complaint within the 60 days was anticipated,
plaintiff could have sought an extension from the Appeals Council.
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II.

Should the 60 day requirement be equitably tolled on the

facts of this case?
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).
As noted above, traditional equitable tolling principles
require a claimant to justify her untimely filing by a showing
of extraordinary circumstances.

The court does not find that

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any conduct by the agency demonstrated extraordinary
circumstances to warrant equitable tolling.
Plaintiff’s response included two letters from attorney Ms.
Hoefer’s therapist.

The letter of June 11, 2014 asserts that

counsel suffers from major depressive disorder (Doc. 13-3).

The

letter of July 1, 2014 mentioned that her symptoms “have had an
effect on her day-to-day functioning at times including her
ability to carry out work assignments” (Doc. 13-4).
Federal courts will apply equitable tolling because of a
claimant’s mental condition only in cases of profound mental
incapacity such as that resulting in institutionalization or
adjudged mental incompetence.

O’Bryant v. Oklahoma, 2014 WL

2853773 at *4 (10th Cir. June 24, 2014).

A similar standard

should apply when a claimant seeks to prove that the mental
incapacity of his or her attorney warrants equitable tolling.
See Robertson v. Simpson, 624 F.3d 781, 785 (6th Cir. 2010).
There is no evidence that plaintiff’s counsel was either
institutionalized or adjudged mentally incompetent.

Neither

letter provides any indication of her mental condition from
October through December 2013.

Neither letter provides any

indication that counsel’s mental condition during this time
period was such that it prevented her from filing a timely
complaint in this case.

Plaintiff has therefore failed to show

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extraordinary circumstances to warrant equitable tolling of the
deadline for filing the complaint in this case.
IT IS THEREFORE ORDERED that the motion to dismiss under
Fed. R. Civ. P. 12(b)(6) and/or motion for summary judgment is
granted.
Dated this 29th day of July 2014, Topeka, Kansas.

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

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