AMPARO v. COMMISSIONER OF SOCIAL SECURITY

Filing 17

MEMORANDUM OPINION AND ORDER denying 12 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Kevin McNulty on 12/19/13. (gmd, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
GABRIEL AMPARO,

Civ. No. 12-6403 (KM)
Plaintiff,

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,

MEMORANDUM OPINION
and
ORDER

Defendant.

KEVIN MCNULTY, U.S.D.J.:

The plaintiff, Gabriel Amparo, filed this appeal from the Commissioner’s
denial of supplemental social security income (SSI) benefits on October 11,
2012. The final decision of the Appeals Council, from which he appeals, is
dated August 1, 2012. The Commissioner moves to dismiss this action
pursuant to Federal Rule of Civil Procedure 12(b)(1) because it was not filed
within 60 days of Mr. Amparo’s receipt of notice of the Appeals Council’s
denial. I find that the doctrine of equitable estoppel applies, and excuse the
filing of this appeal approximately five days late. The motion to dismiss is
therefore denied.
Facts

After Mr. Amparo’s application for SSI benefits was denied in 2009 and
again in 2010, he filed a timely request for hearing. He appeared and testified
before Administrative Law Judge James Andres in Newark on April 4, 2011. On
April 28, 2011, Judge Andres gave Notice of his unfavorable decision, finding
Mr. Amparo ineligible for benefits in an eleven-page opinion. Amparo requested
that the Appeals Council review the AU’s decision. On August 1, 2012 the
Appeals Council gave notice of its denial of review. The parties agree that this is
a ‘final decision’ and that Plaintiff had 60 days from his receipt of notice to file
a civil action, unless he received an extension.
Plaintiff filed this action on October 11, 2012. He admits that this filing
occurred more than 60 days following the date he received the Appeals
Council’s notice. (The date of receipt is deemed by law to occur five days after
the date of notice of the final decision.) He contends, however, that he received

an extension of the time to file his civil action. Central to this issue are the
events of September 25, 2012, the day that Mr. Amparo visited the Social
Security district office in Jersey City.
In his Complaint, Mr. Amparo alleges that the “Appeals Council extended
[hisj time to file a Civil Action to October 25, 2012 on September 25, 2012.”
(Complaint at ¶ 8). In an affidavit submitted in opposition to the
Commissioner’s Motion to Dismiss, he swears that he visited the Social
Security district office on September 25, 2012, and was informed by a
“representative” that “the Appeals Council had granted a 30 day extension
within which to file a District Court complaint. The 30 days were to commence
with the date of my visit that day.” (P1. Aff. ¶ 4). He further swears that a
representative at the district office “returned my copy of the August 1, 2012
Appeals Council Notice after date stamping proof of my September 25, 2012
visit with the hand-written words ‘EXTENSION GIVEN.” (Id. at ¶ 5). A copy of
that document is attached to Amparo’s affidavit.
Steven Rapka, the claims representative who was present at the district
office on September 25, 2012, acknowledges that he interviewed Mr. Amparo
and stamped Amparo’s copy of the Appeals Council notice, memorializing
Amparo’s appearance at the district office. Rapka states, however, that he “did
not write ‘Extension Given’ on the Appeals Council notice” and “did not grant
Plaintiff an extension of time to file his civil action.” (Rapka Deci. at ¶ 4-8). He
adds: “I am neither authorized nor would I grant an extension of time on behalf
of the Appeals Council.” (Id. at ¶ 9).
Rapka entered into the Social Security Administration’s electronic
records system a description of Plaintiff’s visit to the District Office. That record
does not mention the grant of an extension of time. It does, however, state that
Mr. Amparo would “be seeing his attorney on 10/4/12, which is close to the
end of his appeal period,” and relates that Amparo “was afraid if he didn’t visit
our office to inform us of his actions, his appeal would be denied due to late
filing.” A copy of that electronic record is attached to Rapka’s certification.
(Rapka Cert. ¶ 4 and Ex. A).
Discussion

Courts are empowered to review final decisions of the Commissioner of
Social Security pursuant to 42 U.S.C. § 405(g)-(h) and 42 U.S.C. 1383(c)(3).
(g) Judicial review. 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
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or within such further time as the Commissioner of
Social Security may allow...
(h) Finality of Commissioner’s decision. The findings
and decisions of the Commissioner of Social Security
after a hearing shall be binding upon all individuals
who were parties to such hearing. No findings of fact
or decision of the Commissioner of Social Security
shall be reviewed by any person, tribunal, or
governmental agency except as herein provided...
42 USC § 405 (emphasis added). Here, there is no dispute that the Appeals
Council’s decision to deny Plaintiff a review of the AU’s decision constituted a
final decision of the Commissioner.
Pursuant to regulation, “mailing” of notice, for purposes of section 405(g),
is deemed to occur on the date that the claimant actually receives the Appeals
Council’s notice of denial. Absent independent proof, the date of receipt is
legally presumed to be five days after the date of notice. 20 C.F.R. § 416.1841;
icL at § 416.1401; Penner v. Schweiker, 701 F.2d 256, 257 n. 1 (3d Cir. 1983).
Here, the parties agree that the complaint was not filed within 60 plus 5
days of the Appeals Council’s denial notice. See 20 C.F.R. § 416.1841; id. at §
416.1401. Notice of the final decision was rendered on August 1, 2012.
Counting 60 days, plus the 5 day mailing period, yields a deadline of October
6, 2012, at the latest (depending on counting rules). Plaintiff filed this action on
October 11, 2012, approximately five days late.
The 60 day period may be extended by the Appeals Council on written
request, showing good cause. 20 C.F.R. § 422.2 10(c); id. at § 405.505; id. at §
405.20. That would have required a showing of good cause to the Appeals
Council. See 42 USC § 405(g) and 20 C.F.R. § 422.210(c). Even if I took
Plaintiff’s statements as true and treated the document bearing the inscription
“EXTENSION GIVEN” as authentic, this still would not constitute a legally
sufficient extension from the Appeals Counsel. That notation was allegedly
made by a person in a local district office. See 20 C.F.R. § 405.505; § 405.20. I
find that Mr. Amparo did not obtain a valid extension of the deadline.
In addition, this Court has equitable discretion to toll the 60-day period
under appropriate circumstances. See generally Cardyn v. Comm’r of Social
Security, 66 F. App’x 394 (3d Cir. 2003).
[Tjhere are three principal situations in which equitable tolling may
be appropriate: “(1) where the defendant has actively misled the
plaintiff respecting the plaintiff’s cause of action; (20 where the
plaintiff in some extraordinary way has been prevented from
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asserting his or her rights; or (3) where the plaintiff has timely
asserted his or her rights mistakenly in the wrong forum.”
Id. at 397 (quoting Courtney v. LaSalle Univ., 124 F.3d 499, 505 (3d Cir. 1997)).
I find that Plaintiff is entitled to equitable tolling to the extent that his filing of
this complaint, some five days late, may be treated as timely.
Mr. Amparo has sworn, and the Commissioner’s declarant Mr. Rapka
has corroborated, that he went to the Jersey City district office on September
25, 2012, before his time to file a civil action expired. The district office datestamped Amparo’s copy of the Appeals Council notice, memorializing his visit.
The parties agree, moreover, that Mr. Amparo then and there stated his
intention to appeal. The electronic record of the local district office states
explicitly the purpose of Mr. Amparo’s visit: “he was afraid if he didn’t visit our
office to inform us of his actions, his appeal would be denied due to late filing.”
(P1. Aff. at ¶ 4; Rapka Deci. at ¶ 4, Ex. A).
True, there is a factual dispute as to the truth of Mr. Amparo’s
contention that Rapka, or the district office, “granted” him an extension, orally
and/or in writing. (Compare P1. Aff. ¶ 4 with Rapka Deci. ¶ 7-8). As set forth
below, however, it is not necessary to resolve that factual dispute.’
It is crystal clear that Mr. Amparo intended to meet the deadline. The
Commission’s records confirm that he was concerned about missing the
deadline, and went to his district office for the express purpose of making sure
he did not. True, that was the wrong place to go; the sought-for extension was
obtainable only from the Appeals Council. But for all that appears in this
record, Mr. Amparo did not know that. He left the office with, at a minimum, a
date-stamped official paper. And there is certainly no evidence that anyone at
the local district office advised him that he did not have an extension, or
advised him that the proper procedure would be to submit an extension
request to the Appeals Council in writing.
Mr. Amparo was mistaken, but not egregiously or unreasonably so. He
certainly seems to have acted in good faith. He exercised due diligence, in that
he sought to obtain an extension prior to the running of the limitations period,
Amparo states that a district office representative “excused himself for a short
period,” informed him that an extension had been granted, and wrote “extension
granted” on his copy of the Appeals Council notice. (P1. Aff. at ¶ 4). Rapka denies this
(although his declaration, read closely, does not strictly foreclose the possibility that
some other representative wrote on Plaintiffs piece of paper).
The district office, as set forth above, was not empowered to grant such an
extension. If it had been, I might have ordered an evidentiary hearing to determine
whether it had done so. Here, however, the issue is equitable tolling, and the
undisputed facts are sufficient to resolve that issue. To be clear, my ruling does not
state or imply that Mr. Rapka is not telling the truth; it is simply unnecessary to
resolve the factual issues for present purposes.
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and then immediately retained counsel to file a civil action within what he
believed to be the extended filing period. See generally Santos v. United States,
559 F.3d 189, 197 (3d Cir. 2009) (requiring that a plaintiff offer evidence of due
diligence in pursuing and preserving his claim). Mr. Amparo unequivocally
asserted his rights, albeit by the wrong procedure, in the wrong office. And it
must be said, at a minimum, that the district office, having clear knowledge
that Amparo sought an extension, failed to advise him as to the proper
procedure. Finally, the untimeliness that resulted was not lengthy: this action
was filed approximately five days late.
Under all the circumstances, I exercise my equitable discretion to toll the
limitations period. I deem this action to have been filed timely.
CONCLUSION AND ORDER

Accordingly, for the reasons stated above, and good cause having been
shown,
IT IS this 19th day of December, 2013, ORDERED as follows:

Defendant Commissioner’s motion to dismiss the Complaint pursuant to
Federal Rule of Civil Procedure 12(b)(1) is DENIED.

HON. KEVIN MCNULTY ,-‘)
United States District Ju’J
Dated: December 19, 2013
Newark, New Jersey

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