Roberson v. Commissioner of Social Security

Filing 14

MEMORANDUM AND ORDER, This action was filed on 10/22/14, 68 days after Roberson says he received notice. Pltff has failed to explain his delay in filing, or otherwise oppose the motion. The complaint is therefore dismissed with prejudice as time-barred on its face. The Clerk of Court is directed to enter judgment accordingly and close this case. (Ordered by Judge Eric N. Vitaliano on 6/22/2016) c/m Fwd. for Judgment. (Galeano, Sonia)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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DARRYL ROBERSON,

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JUN l 8 2015

BROOKLYN OFFICE

Plaintiff,
MEMORANDUM &
ORDER

-againstCOMMISSIONER OF SOCIAL SECURITY,

l 4-cv-617 5 (ENV)
Defendant.

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VITALIANO, D.J.,
Plaintiff Darryl Roberson appeals the denial of his application for Supplemental Security
Income in a decision dated March 29, 2013, where he was found not disabled. See Compl., Ex.
1, ECF Dkt. No. 1. Plaintiff sought Appeals Council review, but on August 11, 2014, the
Appeals Council denied review, making the March 29, 2013 determination the final decision of
the Acting Commissioner of Social Security (the "Commissioner"). Id, Ex. 1, at 1. The
Appeals Council denial notice was sent to Roberson on August 11, 2014, and he acknowledges
that he received the notice by mail on August 16, 2014. Id. at 1.
The Commissioner has moved to dismiss this action as untimely. ECF Dkt. No. 11. The
Social Security Act only permits a civil action appealing the final decision of the Commissioner
when it is "commenced within sixty days after the mailing" of the Appeals Council decision "or
within such further time as the Commissioner of Social Security may allow." 42 U.S.C. §
405(g). See Wong v. Bowen, 854 F.2d 630 (2d Cir. 1988) (strictly construing 60-day limitation);

Davila v. Barnhart, 225 F. Supp. 2d 337, 338 (S.D.N.Y. 2002) (quoting State ofNew Yorkv.
Sullivan, 906 F.2d 910, 917 (2d Cir. 1990)) (noting equitable tolling is "not infrequently
appropriate" but that plaintiff bears the burden of establishing such extraordinary circumstances).
This action was filed on October 22, 2014, 68 days after Roberson says he received the

notice. Plaintiff has failed to explain his delay in filing, or otherwise oppose the motion. See
Orders dated 4/1/15 and 11/5/15 (granting extensions of time to file opposition); see also ECF
Dkt. No. 12 (letter from the Commissioner, ccing Roberson, enclosing among motion documents
the requisite notice to prose litigants that plaintiffs claims may be dismissed if he fails to
respond).
The complaint is therefore dismissed with prejudice as time-barred on its face. The Clerk
of Court is directed to enter judgment accordingly and close this case.
So Ordered.
Dated: Brooklyn, New York
June 22, 2016

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ERIC N. VITALIANO
United States District Judge

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