HYPPOLITE v. COMMISSIONER OF SOCIAL SECURITY
Filing
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OPINION AND ORDER granting 9 Motion to Dismiss With Prejudice. Plaintiff shall have 30 days from the date of this Opinion and Order to file an appeal with the Third Circuit Court of Appeals ***CIVIL CASE TERMINATED. Signed by Judge John Michael Vazquez on 4/19/2018. (sr, ) (n/m via regular and certified mail)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
THORN W. HYPPOLITE,
Civ. Action No. 2:17-cv-07841 (JMV)
Plaintiff,
V.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
OPINION & ORDER
Defendant.
John Michael Vazguez, U.S.D.J.
This matter comes before the Court on the motion of Defendant, the Acting
Commissioner of Social Security, to dismiss the Complaint of Plaintiff Thorn W. Hyppolite for
failure to timely file this action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g). D.E. 9. Plaintiff, who is proceeding pro Se, filed a letter in opposition. D.E 11. The
motion was decided without oral argument pursuant to Federal Rule of Civil Procedure 78 and
Local Civil Rule 78.1.
The Court has considered the parties’ submissions and grants
Defendant’s motion to dismiss with prejudice.
I.
Background
On May 28, 2013, Plaintiff filed an application for disability insurance benefits and
supplemental security income. D.E. 10-1 at 5. The Commissioner denied the application at the
initial level of administrative review and on reconsideration.
Id. at 19, 28.
Plaintiff then
requested a hearing before an administrative law judge (“AU”), id. at 35, and the AU held a
hearing on July 31, 2015, Id. at 40. In a December 23, 2015 opinion, the AU detennined that
Plaintiff was not disabled. Id. at 40. In response, Plaintiff sought review before the Appeals
Council. Id. at 57.
On May 22, 2017, the Appeals Council denied Plaintiffs request to review the AU’s
decision. Id. at 57. The Appeals Council mailed its decision to Plaintiff at his home address and
also copied Plaintiffs counsel.’ Id. at 57, 60. The Appeals Council further advised Plaintiff that
he could seek additional review by filing a complaint in the United States District Court, but
warned Plaintiff that he had “60 days to file a civil action (as for court review).” Id. at 58, 59.
The Appeals Council additionally apprised Plaintiff that “[t]he 60 days start the day afler you
receive this letter. We assume you received this letter 5 days after the date on it unless you show
us that you did not receive it within the 5-day period.” Id. at 59. The Appeals Council also
notified Plaintiff as follows:
If you cannot file for court review within 60 days, you may ask the
Appeals Counsel to extend your time to file. You must have a
good reason for waiting more than 60 days to ask for court review.
You must make the request in writing and give your reasons in the
request.
Id.
Taking the five-day presumption into account, Plaintiff had until July 26, 2015 to file his
complaint with this Court. Plaintiff, however, filed his Complaint on October 6, 2017. D.E. 1.
At the same time, Plaintiff sought to proceed in forma pauperis, which the Court granted. D.E.
2.
The Commissioner now moves for dismissal due to the late filing. In response, Plaintiff
indicates that after he was unsuccessful before the Appeal Council, he was depressed and he “did
‘Although he is currently proceeding pro Se, Plaintiff was represented by counsel through the
time of the Appeals Council determination.
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not want to do anything”; his attorney also “dropped” him as a client. D.E. 11 at 1. Plaintiff did
not think that he could file an appeal without an attorney, which he could not afford.
Id.
However, in “August or September” Plaintiff called “$SA,” and a “clerk” informed him that he
could still file a complaint even though the time to do so had “expired.” Id.
II. Legal Standard and Analysis
The Court has jurisdiction to review claims arising under the Social Security Act as
provided in 42 U.S.C.
§
405(g) and (h). Section 405(h) states as follows:
No findings of fact or decision of the Commissioner of Social
Security shall be reviewed by any person, tribunal, or
governmental agency except as herein provided. No action against
the United States, the Commissioner of Social Security or any
officer or employee thereof shall be brought under section 1331 or
1346 of Title 2$ to recover on any claim arising under this
subchapter.
Section 405(g) in turn provides, in relevant part:
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 ofsuch decision or within sitchfitrther
time as the Commissioner ofSocial Security may allow.
42 U.S.C.
§ 405(g) (emphasis added).
Moreover, and as indicated in the Appeals Council notice to Plaintiff, “[a]bsent
independent proof, the date of receipt is legally presumed to be five days after the date of
notice.” 20 C.F.R.
§ 416.1841. Plaintiff, thus, had sixty-five days to file a timely complaint.
See
Oliveras v. Colvin, 2016 WL 2757974, at *2 (D.N.J. May 12, 2016). Plaintiff does not dispute
that he failed to do so.
In Bowen v. City of New York, the Supreme Court of the United States found that the
sixty-day limitation “is a condition on the waiver of sovereign immunity and thus must be
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strictly construed.” 476 U.S. 467, 479 (1986). The Supreme Court, however, also “conclude[d]
that application of a ‘traditional equitable tolling principle’ to the 60—day requirement of
§
405(g) is fully ‘consistent with the overall congressional purpose’ and is ‘nowhere eschewed by
Congress.” Id. at 480 (citing Honda v. Clark, 386 U.S. 484, 501 (1967)). The Third Circuit has
indicated that equitable tolling can apply under the following circumstances: “(1) where the
defendant has actively misled the plaintiff respecting the plaintiffs cause of action; (2) where the
plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3)
where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum.” Kramer
v. Comm’r of Soc. Sec., 461 Fed. Appx. 167, 169 (3d Cir. 2012) (quoting Oshiver v. Levin,
fishbein, Sedran & Berman, 38 f.3d 1380, 1387 (3d Cir. 1994)).
Here, neither the first nor the third scenario is asserted. Instead, Plaintiff appears to be
arguing “extraordinary” circumstances. However, Plaintiffs alleged reasons fall far short of
establishing the extraordinary situation needed to support equitable tolling. Plaintiff does not
deny that he personally received the May 22, 2017 notice from the Appeals Council nor does he
claim that he received it within the presumed period of five days. Moreover, he does not assert
that he did not understand the application of the 60-day period; to the contrary, he admits that
when he later spoke with the “SSA clerk,” he knew that his time to act had expired. Plaintiff
also acknowledges that he did not contact the Social Security Administration until after the time
for filing his complaint had passed. While he claims that he was “depressed” at losing before the
Appeals Council and losing his attorney, he fails to establish that he could not have contacted the
Social Security Administration in a timely fashion. Plaintiff does not provide any legal authority
to support his position. However, because Plaintiff is proceeding pro se, the Court reviewed
relevant Third Circuit decisions. Plaintiffs stated circumstances do not approach the threshold
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necessary to establish the extraordinary circumstances that justify equitable tolling. See, e.g.,
Kramer, 461 Fed. Appx. At 169-70; Raffinee v. Comm’r of Soc. Sec., 367 Fed. Appx. 379, 381
(3d Cir. 2010).
Therefore, the Court grants the Commissioner’s motion to dismiss.
III. Conclusion
For the reasons stated on the record, and for good cause shown,
It is on this 19th day of April, 201$,
ORDERED that Defendant’s motion to dismiss is Granted; and it is further
ORDERED that this matter is Dismissed with Prejudice; and it is further
ORDERED that the Clerk’s Office shall close this matter; and it is further
ORDERED that the Clerk’s Office shall mail a copy of this Opinion and Order to
Plaintiff by regular mail and by certified mail return receipt. Plaintiff has 30 days from the
date of this Opinion and Order to file an appeal with the Third Circuit Court of Appeals.
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JohnMichael VazqueJ
5
.J.
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