Baker v. Commissioner of Social Security

Filing 17

ORDER: For the reasons stated above, the Commissioner's motion to dismiss the complaint is granted. The Clerk of the Court is respectfully directed to enter judgment accordingly, close this case, and mail a copy of this Order to the pro se plaintiff. SEE ATTACHED ORDER for details. So Ordered by Judge Joan M. Azrack on 5/6/2019. c/m to pro se plaintiff. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JAMES BAKER,

FILED 
CLERK 

4:13 pm, May 06, 2019

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

For Online Publication Only

Plaintiff,
-againstCOMMISSIONER OF SOCIAL SECURITY,

ORDER
16-CV-5285 (JMA)

Defendant.
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AZRACK, United States District Judge:
On September 22, 2016, pro se plaintiff James Baker commenced this action seeking
review of the final determination by the Commissioner of Social Security (the “Commissioner”),
reached after a hearing before an administrative law judge, denying plaintiff disability insurance
benefits under Title II of the Social Security Act (the “Act”). (ECF No. 1.) Before the Court is
the Commissioner’s motion to dismiss the complaint as untimely. (ECF No. 14.) Plaintiff has
not opposed the Commissioner’s motion or otherwise communicated with the Court since July
2017. For the reasons discussed below, the Commissioner’s motion is granted.
I. BACKGROUND
On January 12, 2015, plaintiff filed an application for disability insurance benefits,
alleging disability as of January 1, 2008, due to cancer, heart problems, post-traumatic stress
disorder, depression, and brain surgery. (ALJ Decision, ECF No. 15-1, at 8.) On July 15, 2016,
the Appeals Council denied plaintiff’s request for review. (Notice of Appeals Council Action,
ECF No. 15-1, at 23.) The Appeals Council sent its notice of denial to plaintiff and his
representative, Alexandra Michalowicz, that same day. (Declaration of Cristina Prelle (“Prelle
Decl.”), ECF No. 15-1, at 3.) In his complaint, plaintiff states that he received the Appeal

Council’s notice of denial on July 21, 2016. (Compl. at ¶ 8.) This notice informed plaintiff of
his right to commence a civil action in federal court within sixty (60) days from the date of
receipt:
If You Disagree With Our Action
If you disagree with our action, you may ask for court review of the
Administrative Law Judge’s decision by filing a civil action.
If you do not ask for court review, the Administrative Law Judge’s
decision will be a final decision that can be changed only under special
rules.
How to File a Civil Action
You may file a civil action (ask for court review) by filing a complaint in
the United States District Court for the judicial district in which you live.
The complaint should name the Commissioner of Social Security as the
defendant and should include the Social Security number(s) shown at the
top of this letter . . .
Time To File a Civil Action
•
•
•

You have 60 days to file a civil action (ask for court review).
The 60 days start the day after your 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.
If you cannot file for court review within 60 days, you may ask the
Appeals Council 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 reason(s) in the
request.

You must mail your request for more time to the Appeals Council at the
address shown at the top of this notice. Please put the Social Security
number(s) also shown at the top of this notice on your request. We will
send you a letter telling you whether your request for more time has been
granted.
(Notice of Appeals Council Action, ECF No. 15-1, at 23–24.) Plaintiff did not request an
extension of time to file a civil action. (Prelle Decl., ECF No. 15-1, at 3.) On September 22,
2016, plaintiff commenced this action. (ECF No. 1.)
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II. DISCUSSION
A. Timeliness
District court review of the Commissioner’s final decision on claims arising under Title II
of the Act is provided for and limited by 42 U.S.C. § 405(g). Claimants seeking district court
review of a final decision by the Commissioner must file a civil action within sixty days of
receiving notice of such a decision. 42 U.S.C. § 405(g). The notice is presumed to have been
received five days after the date of such notice unless a plaintiff can show otherwise. 20 C.F.R.
§ 422.210(c). Failure to timely file, even when the delay is minor, requires dismissal of the case.
See, e.g., Johnson v. Comm’r of Soc. Sec., 519 F. Supp. 2d 448, 448 (S.D.N.Y. 2007)
(dismissing a complaint filed nine days after deadline); Davila v. Barnhart, 225 F. Supp. 2d 337,
340 (S.D.N.Y. 2002) (dismissing a complaint filed one day after deadline).
Here, plaintiff admits in his complaint that he received the Appeals Council’s notice of
denial on July 21, 2016. (Compl. at ¶ 8.) Thus, plaintiff was required to commence this action
on or before September 19, 2016 in order for his action to be timely. Plaintiff, however,
commenced this action on September 22, 2016—three days after the deadline. Therefore, this
action is untimely.
B. Equitable Tolling
“Equitable tolling of the limitations period found in Section 405(g) is not infrequently
appropriate, as Congress intended to be ‘unusually protective’ of claimants in this area.” State of
New York v. Sullivan, 906 F.2d 910, 917 (2d Cir. 1990) (quoting Heckler v. Day, 467 U.S. 104,
106 (1984)). Plaintiff has the burden of proving whether equitable tolling applies. Boos v.
Runyon, 201 F.3d 178, 185 (2d Cir. 2000). The Commissioner contends that there is no basis to
toll the sixty-day requirement. (Def.’s Mem. 5–7.) In light of plaintiff’s pro se status, the Court
will consider the applicability of equitable tolling despite plaintiff’s failure to raise it or
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otherwise oppose the Commissioner’s motion to dismiss.
“[T]he doctrine of equitable tolling permits courts to deem filings timely where a litigant
can show that ‘he has been pursuing his rights diligently’ and that ‘some extraordinary
circumstance stood in his way.’” Torres v. Barnhart, 417 F.3d 276, 279 (2d Cir. 2005) (quoting
Pace v. DiGulielmo, 544 U.S. 408, 418 (2005)). The plaintiff must “demonstrate a causal
relationship between the extraordinary circumstances on which the claim for equitable tolling
rests and the lateness of his filing.” Jenkins v. Greene, 630 F.3d 298, 303 (2d Cir. 2010)
(internal quotation omitted). Illness and poor health do not typically rise to the standard of an
extraordinary circumstance in the context of a social security claim. See, e.g., Wong v. Bowen,
854 F.2d 630, 631 (2d Cir. 1988) (holding that allowing equitable tolling on the basis of healthrelated issues “would thoroughly undermine Section [405(g)’s] sixty-day limitation”). Thus,
while plaintiff claims he suffers from heart problems, post-traumatic stress disorder, and
depression, there is nothing in the record—and plaintiff has filed no response to the contrary—to
suggest an extraordinary circumstance that prevented him from filing by the September 19, 2016
deadline. Accordingly, the complaint is untimely and must be dismissed.
III. CONCLUSION
For the reasons stated above, the Commissioner’s motion to dismiss the complaint is
granted. The Clerk of the Court is respectfully directed to enter judgment accordingly, close this
case, and mail a copy of this Order to the pro se plaintiff.
SO ORDERED.
Dated: May 6, 2019
Central Islip, New York
/s/ (JMA)
JOAN M. AZRACK
UNITED STATES DISTRICT JUDGE

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