Schneider v. Commissioner of Social Security
Filing
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MEMORANDUM-DECISION AND ORDER granting the Commissioner's 7 Motion to Dismiss the complaint as untimely. Signed by Judge Norman A. Mordue on 4/25/2012. (amt)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ANDREW SCHNEIDER,
Plaintiff,
v.
1:11-CV-382
(NAM/RFT)
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MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
_____________________________________________
OF COUNSEL:
Law Firm of Alex Dell
450 New Karner Road
Albany, New York 12205
For Plaintiff
Jennifer L. Storm, Esq.
Mary Ann Sloan
Acting Regional Chief Counsel
Social Security Administration
Office of Regional General Counsel
Region II
26 Federal Plaza - Room 3904
New York, New York 10278
For Commissioner
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APPEARANCES:
Andreea Lechleitner,
Special Assistant U.S. Attorney
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Hon. Norman A. Mordue, U.S. District Judge
MEMORANDUM DECISION AND ORDER
I.
INTRODUCTION
On April 6, 2011, plaintiff Andrew Schneider filed a complaint appealing the decision by
defendant Michael J. Astrue, Commissioner of Social Security, to deny his application for
disability insurance benefits. Plaintiff brings this action pursuant to the Social Security Act, 42
U.S.C. §§ 405(g), which permits any individual, following a final decision by the Commissioner,
to “obtain review of such decision by a civil action commenced within sixty days after the
mailing to him of notice of such decision”. The Commissioner moves to dismiss the complaint on
the ground that it is untimely because it was filed eighty-nine days after the Appeals Council
issued the final decision in this matter. Plaintiff opposes the motion to dismiss.
II.
FACTS
On July 18, 2008, plaintiff filed an application for disability insurance benefits. The
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application was denied initially on June 10, 2009. Plaintiff requested and received a hearing
before an Administrative Law Judge (“ALJ”). On July 20, 2010, the ALJ issued a decision
finding that prior to July 24, 2007, based on, inter alia, his age and capacity for sedentary work,
plaintiff was not disabled. The ALJ further found, however, that as of July 24, 2007, “the date the
claimant’s age category changed,” plaintiff was disabled and entitled to benefits. Plaintiff filed a
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request with the Appeals Council for review of the ALJ’s decision. On January 7, 2011, the
Appeals Council issued a notice denying plaintiff’s request for review. The Appeals Council
mailed a copy of the notice to plaintiff and his attorney.1
Plaintiff asserts that he did not receive the notice from the Appeals Council until February
7, 2011, when his attorney called the Social Security Administration for an update. Plaintiff’s
attorney states that “after learning a decision was issued a month prior,” she “complained that
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neither I nor Plaintiff received such a decision and insisted one be faxed to me immediately.” On
April 6, 2011, plaintiff filed a complaint appealing the Commissioner’s final decision.
III.
DISCUSSION
A.
Timeliness
1
See Declaration by Donald V. Ortiz, Acting Chief of Court Case Preparation and Review Branch IV of the
Office of Appellate Operations, Dkt. No. 7-2.
2
A final decision of the Social Security Administration must be appealed to United States
District Court within sixty days of the claimant’s receipt of notice of the decision. 42 U.S.C. §
405(g). The applicable regulation states that “the date of receipt of notice of denial of request for
review of the administrative law judge's decision or notice of the decision by the Appeals Council
shall be presumed to be 5 days after the date of such notice, unless there is a reasonable showing
to the contrary.” 20 C.F.R. § 422.210(c).
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Defendant argues that even assuming plaintiff did not receive notice of the Appeals
Council’s decision until February 7, 2011, because he still had thirty days to initiate a civil action
“he should have requested an extension . . . from the Appeals Council” if he needed more time.
Pursuant to § 422.210(c), however, the sixty day clock does not start until the Claimant receives
the final decision. See Matsibekker v. Heckler, 738 F.2d 79, 81 (2d Cir. 1984) (sixty day period
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begins to run when the claimant receives notice of the Appeals Council’s decision); Liranzo v.
Comm'r of Soc. Sec., 411 Fed. Appx. 390, 391 (2d Cir. 2011) (“The applicable regulation starts
the clock when an individual receives a notice of denial from the Appeals Council”). Receipt is
presumed to occur “5 days after the date of such notice”. 20 C.F.R. § 422.210(c). Claimants
may, however, rebut that presumption by making a “reasonable showing” that they did not
receive the notice within five days. Id. Thus, if plaintiff makes a “reasonable showing” that he
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did not receive the notice within five days of issuance then: the sixty day time period would not
begin to run until February 7, 2011, the date plaintiff claims he first received the notice, see
Matsibekker, 738 F.2d at 81 (“the limitations period runs from the time of receipt, not the time of
mailing); plaintiff’s complaint, filed fifty-eight days later, would be timely; and, no extension
would have been necessary. Accordingly, the Court must determine whether plaintiff has made a
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“reasonable showing” that he did not receive the notice within five days of the date of issuance.
“The case law has been consistent within the Second Circuit that there is some burden on
a claimant to make a ‘reasonable showing to the contrary’ of the five-day presumption within §
422.210(c), beyond mere allegations in his or her complaint. Rodriguez v. Astrue, 2012 WL
662323, at *2 (D.Conn. Feb. 22, 2012); see also Johnson v. Comm'r of Soc. Sec., 519 F.Supp. 2d
448,449 (S.D.N.Y. 2007) (“Although the complaint alleges that [plaintiff] received the Appeals
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Council's decision [thirty-three days after it was issued], there is nothing on record to rebut the
presumption of receipt of the notice of denial within five days of its issuance.”) (citation omitted).
In support of the motion to dismiss, the Commissioner submitted a declaration by Donald
V. Ortiz, Acting Chief of Court Case Preparation and Review Branch IV of the Office of
Appellate Operations, stating that “[o]n January 7, 2011, the Appeals Council sent, by mail
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addressed to the plaintiff . . . with a copy to the representative, notice of its action on the
plaintiff’s request for review and of the right to commence a civil action within sixty (60) days
from the date of receipt”. Dkt. No. 7-2. Thus, defendant asserts, the sixty day time period began
to run five days later on January 12, 2011, and expired on March 14, 2011,2 well before plaintiff
filed his complaint on April 6, 2011.
In opposition, plaintiff claims that neither he nor his counsel received the notice until
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February 7, 2011, when the Social Security Administration faxed the Appeals Council decision to
his attorney. This claim, however, is made by plaintiff’s attorney in her “Reply to Motion to
Dismiss”, and is unverified. Indeed, plaintiff submitted no affidavits, declarations, or other
evidence showing that he did not receive the notice from the Appeals Council within five days of
2
March 13, 2011 was a Sunday.
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its issuance. Thus, plaintiff has failed to rebut the presumption that he received the notice from
the Appeals Council within five days of its issuance, and the complaint is time-barred. See Cruz
v. Astrue, No. 11–CV–199 (ARR), 2012 WL 314869, at *2 (E.D.N.Y. Feb. 1, 2012) (dismissing
the complaint as untimely where plaintiff provided “no supporting evidence[ ]” that she did not
receive the Appeals Council's notice until six-months of date of notice other than her allegations
in her complaint to that effect, whereas defendant submitted affidavit that notice was in fact
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mailed on date it was issued, so that requirements of § 422.210(c) were not met). Accordingly,
the Commissioner’s motion to dismiss the complaint as untimely is granted.
B.
Equitable Tolling
Alternatively, plaintiff argues that the sixty day time period is subject to equitable tolling.
Plaintiff asserts that he has:
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through his attorneys . . . been diligently pursuing his rights by attempting to file the
federal action and following up with the Clerk of the Court regarding technological
difficulties that prevented such filings and was prevented from filing within the 60
day period . . .due to extraordinary circumstances, namely the inability to transmit the
material electronically.
Dkt. No. 10.
“[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
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circumstance stood in his way.’” Torres v. Barnhart, 417 F.3d 276, 279 (2d Cir. 2005). In this
case, however, plaintiff presents no evidence whatsoever in support of his claim that he has acted
diligently and extraordinary circumstances prevented him from filing the complaint. Moreover,
plaintiff does not detail the “technological difficulties” or explain how they prevented him from
filing the complaint. In view of the conclusory nature of plaintiff’s unverified assertions, the
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Court finds that they do not meet the legal standards for equitable tolling and that no evidentiary
hearing is warranted. Cf., Torres, 417 F.3d at 276 (concluding that “the district court’s failure to
conduct an evidentiary hearing was [an abuse of discretion] since [the plaintiff’s] sworn
averments of fact, though disputed, meet the legal standards for equitable tolling.”).
IV.
CONCLUSION
For the foregoing reasons, it is hereby
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ORDERED the Commissioner’s motion to dismiss the complaint (Dkt. No. 7) as
untimely is granted; and it is further
ORDERED that the complaint is dismissed without prejudice; and it is further
ORDERED that the Clerk of the Court is directed to close this case.
IT IS SO ORDERED.
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Date: April 25, 2012
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