RODRIGUEZ v. COMMISSIONER OF SOCIAL SECURITY
Filing
10
LETTER OPINION. Signed by Judge Susan D. Wigenton on 12/21/2017. (JB, ) (Main Document 10 replaced on 12/21/2017) (JB, ). Modified on 12/21/2017 (JB, ).
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CHAMBERS OF
MARTIN LUTHER KING COURTHOUSE
50 WALNUT ST.
NEWARK, NJ 07101
973-645-5903
SUSAN D. WIGENTON
UNITED STATES DISTRICT JUDGE
December 21, 2017
Deyanira Rodriguez
250 Chestnut Street
Newark, NJ 07105
Pro Se Plaintiff
Rachel Licausi, Esq.
Special Assistant
United States Attorney
Social Security Administration
Office of the General Counsel, Region III
P.O. Box 41777
Philadelphia, PA 19101
Attorney for Defendant Commissioner of Social Security
LETTER OPINION FILED WITH THE CLERK OF THE COURT
Re:
Rodriguez v. Commissioner of Social Security
Civil Action No. 17-5879 (SDW)
Litigants:
Before this Court is Defendant Commissioner of Social Security’s (“Commissioner” or
“Defendant”) Motion to Dismiss Plaintiff Deyanira Rodriguez’s (“Plaintiff”) Complaint for failure
to timely commence a civil action. 1 This Court having considered the Defendant’s submission,
noting that the motion is unopposed, having reached its decision without oral argument pursuant
to Federal Rule of Civil Procedure 78, for the reasons discussed below, GRANTS Defendant’s
motion.
DISCUSSION
On September 3, 2017, Plaintiff filed an application for disability insurance benefits
(“DIB”) and social security benefits (“SSI”). (Declaration of Marie Cousins (hereinafter
“Cousins’ Decl.”), ECF. No. 9-1 ¶ 3(a).) Those claims were initially denied by the Social
1
This Court treats this as a motion brought pursuant to Federal Rule of Civil Procedure 12(b)(1)
for lack of subject matter jurisdiction.
Security Administration (“SSA”) on March 18, 2014. (Id. ¶ 3(b).) Plaintiff’s request for
reconsideration was also denied on April 29, 2014. (Id. ¶ 3(c).) On May 3, 2014, Plaintiff filed
a Request for Hearing before an Administrative Law Judge (“ALJ”). (Id.) The ALJ issued a
decision denying Plaintiff’s claims for benefits on February 25, 2016. (Id. ¶ 3(d).) Plaintiff
appealed the decision on March 9, 2016. (Id.) On May 25, 2017, the Appeals Council notified
Plaintiff by mail that she had the right to commence a civil action within sixty (60) days from the
date of the receipt of the notice. 2 (Id. ¶ 3(e).) On August 8, 2017, Plaintiff filed a civil action in
this Court. (Compl., ECF. No. 1; Cousins’ Decl. ¶ 3(g).)
This Court has jurisdiction to review claims arising under the Social Security Act (the
“Act”) only as provided for in 42 U.S.C. § 405(g). Section 405(g) of the Act “mandates that the
individual must file his or her civil action ‘within sixty days after the mailing to him of notice of
[the Commissioner’s final] decision or within such further time as the Commissioner of Social
Security may allow.’” Walker-Butler v. Berryhill, 857 F.3d 1, 2 (3d Cir. 2017) (quoting 42 U.S.C.
§ 405(g)). Here, Plaintiff’s time to file a civil action in this Court expired on July 31, 2017. 3
Because Plaintiff did not make any request for an extension of time to file her civil action prior to
the deadline, and the Commissioner did not grant an extension of time under 20 C.F.R. § 210(c),
the August 8, 2017 filing was untimely. Additionally, although the sixty (60) day time limit under
42 U.S.C. § 405(g) is subject to equitable tolling, Plaintiff has not made any arguments suggesting
that this doctrine should apply to the facts of her case. Thus, the Court deems this argument
waived.
Therefore, Plaintiff’s complaint is dismissed. Defendant’s Motion to Dismiss for lack of
subject matter pursuant to Federal Rule of Civil Procedure 12(b)(1) is GRANTED.
CONCLUSION
For the reasons set forth above, Defendant’s Motion to Dismiss is GRANTED. An
appropriate order follows.
/s/ Susan D. Wigenton
SUSAN D. WIGENTON, U.S.D.J.
Orig: Clerk
cc:
Parties
2
The “date of receipt . . . shall be presumed to be 5 days after the date of such notice. . . .” 20
C.F.R. § 422.210(c).
3
The filing deadline is calculated by adding five (5) days to the sixty (60) day deadline. Because
the sixty-fifth day, July 29, 2017, fell on a Saturday, Plaintiff had until the following Monday,
July 31, 2017, to file her complaint. See Fed. R. Civ. P. 6(a)(1)(C) (“[I]f the last day [of a
computed time period] is a Saturday . . . the period continues to run until the end of the next day
that is not a Saturday . . . .”).
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