RODRIGUEZ v. COMMISSIONER OF SOCIAL SECURITY

Filing 19

OPINION AND ORDER denying Defendants 15 Motion to Dismiss; The Social Security Administration will serve and electronically file a response to the plaintiffs statement of the primary contentions or arguments for relief by June 2, 2017; The plainti ff will serve and electronically file a brief by July 5, 2017, etc. Failure to timely file a brief will result in dismissal of thecomplaint for lack of prosecution;The plaintiff may serve and electronically file a reply brief within 15 days after the Social Security Administration files a responsive brief, etc. Signed by Judge Jose L. Linares on 05/18/2017. (ek)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT Of NEW JERSEY

NILDA RODRIGUEZ,

:

CIVIL ACTION NO. 16-8898 (JLL)
OPINION & ORDER

Plaintiff,
V.

COMMISSIONER Of SOCIAL SECURITY,:
Defendant.

LINARES, District Judge

IT APPEARING THAT:
1.

Nilda Rodriguez filed a complaint in this Court in order to seek review of

the final decision (hereinafter, “the Decision”) of an administrative law judge
(hereinafter, “the AU”) issued on behalf of the Commissioner of the Social Security
Administration (hereinafter, “the Commissioner”), dated January 13, 2015, which denied
her application for supplemental security income.
also 42 U.S.C.
2.

§

(S.cc dkt.

1; dkt. 12-2 at

4$_59•)t

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405(g); L.Civ.R. 9.1.

The attorney who represented Rodriguez at the underlying AU hearing is

also representing Rodriguez here. (See dkt. 12-2 at 48 (mentioning the attorney who

This Court will refer to documents by the docket entry numbers and the page
numbers imposed by the Electronic Case Filing System.

represented Rodriguez at the hearing); see dkt. 1 at 1 (listing the same attorney on
Rodriguez’s federal complaint).)
3.

The Commissioner now moves to dismiss Rodriguez’s federal complaint

for being untimely.

(Scc dkt.

15; dkt. 15-1; dkt. 16; dkt. 16-1.) Rodriguez’s attorney

timely opposed the motion. (See dkt. 17; dkt. 18.) For the following reasons, the Court:
(a) denies the motion; and (b) sets forth a revised briefing schedule.

4.

The Appeals Council declined to review the Decision, and mailed a notice

to Rodriguez and Rodriguez’s attorney on July 25, 2016 (hereinafter, “the July 2016
Denial”). (See dkt. 12-2 at 20—24.) Thus, Rodriguez’s attorney should have filed a
federal complaint to seek review of the Decision by September 28, 2016. See 42 U.S.C.

§ 405(g)

(requiring an aggrieved claimant for Social Security benefits to seek federal

review within sixty days of the receipt of a Denial by the Appeals Council); 20 C.F.R.

§

422.210(c) (presuming that such a Denial will be received by the claimant within five
days of its date of issuance).2
5.

Eight days before the deadline to file the federal complaint, i.e., on

September 20, 2016, Rodriguez’s attorney sent a request to the Appeals Council to either:
(a) reopen the review of the Decision, or (b) extend the time to file a federal complaint if
the request to reopen was not granted. (See dkt. 12-2 at 10—15.) Rodriguez’s attorney

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The Commissioner calculated Rodriguez’s date to file a federal complaint to
have been September 29, 2016. (See dkt. 16 at 4 n.2.) However, the difference
between this Court’s calculation and the Commissioner’s calculation will be of no
moment.

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did not file a federal complaint by September 28, 2016, and there is no indication in the
record that Rodriguez’s attorney was personally assured by anyone in this instance that
an extension would be granted if the Appeals Council were to decline to reopen the
review of the Decision.
6.

On November 4, 2016, the Appeals Council declined to reopen the review

of the Decision on the ground that no arguments had been raised in support of the request
that had not been previously considered by the ALl. In addition, the Appeals Council
declined to extend the time to file a federal complaint. (See dkt. 12-2 at 16—17.)
7.

On November 30, 2016

two months after September 28, 2016

Rodriguez’s attorney filed a federal complaint.
8.

—

(Scc dkt. 1.)

In response to the federal complaint, the Commissioner filed a complete

Administrative Record on March 16, 2017. (See dkt. 12 through dkt. 12-9.) On that
same day, this Court issued a Scheduling Order for the prosecution of this case. (S.cc dkt.
13.) Rodriguez’s attorney then filed a statement of the primary contentions or arguments
for relief on March 28, 2017, which was two days before the deadline set by this Court in
the Scheduling Order. Sç L.Civ.R. 9.1(d)(l). (See dkt. 14.)
9.

The Commissioner did not move to dismiss this case until April 19, 2017.

(See dkt. 15.)
10.

In response to the Commissioner’s motion to dismiss, Rodriguez’s attorney

does not deny that she received the July 20 16 Denial in a timely manner. However,
Rodriguez’s attorney contends that she “has never been denied a request to extend time to
file an action in U.S. District Court and has been granted such request on all prior

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occasions it was requested.” (Dkt. 18 at 3.) Thus, she assumed that the Appeals Council
would extend her time to file a federal complaint on behalf of Rodriguez if the request to
reopen was denied. (See
11.

at 3—4.)

This Court possesses the equitable discretion to toll the time to file the

federal complaint in this action. See Bowen v. City of New York, 476 U.S. 467, 478—80
(1986). This Court will exercise that discretion, because Rodriguez’s attorney indeed
attempted to preserve Rodriguez’s rights by submitting a request to the Appeals Council
to extend the time to file a federal complaint, in the event that the request to reopen the
review of the Decision was denied, before September 28, 2016. In addition, in light of
the nature of Rodriguez’s claims, of her alleged disabilities, and of her financial situation,
this Court will exercise the discretion to toll the time to file the federal complaint,
because “it is neither necessary nor proper to visit the sins of the attorney upon [her]
blameless client.” Szemple v. Univ. of Med. & Dentistry of N.J., 162 F.Supp.3d 423,
429 (D.N.J. 2016) (quotation marks, internal alterations, and citations omitted).3 Thus,
the Conunissioner’s motion to dismiss is denied.
12.

However, this Court advises Rodriguez’s attorney that it would be prudent

to no longer assume that the Appeals Council will grant a request to extend the time to
file a federal compliant, even if that request is filed before the sixtyday period expires.
This Court also hereby advises Rodriguez’s attorney to strictly abide by this Court’s
forthcoming briefing schedule. For good cause appearing:

This Court previously concluded that Rodriguez’s financial situation entitled

her to informapauperis relief. (See dkt. 2.)

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IT IS THEREFORE on this

18th

day of May, 2017, ORDERED that

the defendant’s motion to dismiss (dkt. 15) is DENIED; and it is further
ORDERED that pursuant to Local Civil Rule 9. l(d)(2), the Social Security
Administration will serve and electronically file a response to the plaintiffs statement of
the primary contentions or arguments for relief by June 2, 2017; and it is further
ORDERED that the Social Security Administration, if failing to abide by the
above directive, will be deemed to disagree that the plaintiff is entitled to relief; and it is
further
ORDERED pursuant to Local Civil Rules 9.l(e)(l) and 9.1(e)(5) that the plaintiff
will serve and electronically file a brief by July 5, 2017, that sets forth with specificity,
inter alia, (1) a statement of the issues presented for review, (2) a statement of the case
and procedural history, (3) a statement of the relevant facts with reference to the
administrative record, and (4) arguments that must be divided into sections separately
treating each issue presented and the reasons therefor; and it is further
ORDERED that failure to timely file a brief will result in dismissal of the
complaint for lack of prosecution under Federal Rule of Civil Procedure 41(b) without
further notice; and it is further
ORDERED pursuant to Local Civil Rules 9.1 (e)(2) and 9.1 (e)(6) that the Social
Security Administration will serve and electronically file a responsive brief— which
must contain, inter alia, an argument section responding to each of the plaintiffs
arguments

within 45 days after the plaintiff files a brief; and it is further

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ORDERED that the Social Security Administration, if failing to abide by the
above directive, will be deemed to have waived the opportunity to respond; and it is
further
ORDERED pursuant to Local Civil Rule 9.l(e)(3) that the plaintiff may serve and
electronically file a reply brief within 15 days after the Social Security Administration
files a responsive brief; and it is further
ORDERED that the plaintiff, if failing to abide by the above directive, will be
deemed to have waived the opportunity to reply; and it is further
ORDERED that if a party files a brief that does not conform to the relevant
portions of Local Civil Rule 9.1 (e)(4) through Local Civil Rule 9.1 (e)(6), then that party
will be required to submit a new brief that is in compliance, and the time associated with
the preparation and filing of a nonconforming brief will not be considered in any
application for fees absent good cause; and it is further
ORDERED that the parties must send a courtesy copy of their briefs to the Office
of the Clerk of the Court, addressed for delivery to the Chambers of District Court Judge
Jose L. Linares.

States District Judge

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