Cope v. Commissioner of Social Security

Filing 13

DECISION AND ORDER granting 8 Motion to Dismiss; adopting Report and Recommendations re 12 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Dancks' October 19, 2016 Report and Recommendation is ADOPTED in its enti rety for the reasons set forth therein; and the Court further ORDERS that the Commissioner's motion to dismiss is GRANTED and Plaintiff's complaint is DISMISSED; and the Court further ORDERS that the Clerk of the Court shall enter judgme nt in Defendant's favor and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Decision and Order on the parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 5/11/2017. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
BRUCE COPE o/b/o M.A.R.C.,
Plaintiff,
vs.

1:14-cv-00882
(MAD/TWD)

CAROLYN COLVIN,
Acting Commissioner of Social Security,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

OFFICE OF PETER M. MARGOLIUS
7 Howard Street
Catskill, New York 12414
Attorney for Plaintiff

PETER M. MARGOLIUS, ESQ.

SOCIAL SECURITY ADMINISTRATION
OFFICE OF REGIONAL GENERAL COUNSEL
Region II
26 Federal Plaza, Room 3904
New York, New York 10278
Attorney for Defendant

FERGUS J. KAISER, ESQ.

Mae A. D'Agostino, U.S. District Judge:

DECISION AND ORDER
I. INTRODUCTION
On July 18, 2014, Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), seeking
judicial review of the Commissioner of Social Security's ("Commissioner") final decision denying
his claim for supplemental security income ("SSI") benefits, filed on behalf of his minor daughter,
M.A.R.C. See Dkt. No. 1. Defendant filed a motion to dismiss the complaint as untimely on
November 18, 2014, which Plaintiff opposed. See Dkt. No. 8; Dkt. No. 9. By Report and
Recommendation dated October 19, 2016, Magistrate Judge Thérèse Wiley Dancks recommended

that the Court dismiss the complaint as untimely. See Dkt. No. 12 at 8. No objections to the
Report and Recommendation were filed.
II. BACKGROUND
On November 21, 2011, Plaintiff protectively filed a Title XVI application for SSI
benefits on behalf of his minor daughter, M.A.R.C.. See Dkt. No. 8-3 at 21. The claim was
initially denied on February 22, 2012. Id. Plaintiff requested a hearing in front of an
administrative law judge ("ALJ"), which occurred on January 17, 2013. Id. On February 21,
2013, the ALJ issued an unfavorable decision, determining that M.A.R.C. was not disabled as
defined under the Act. See id. at 36. Plaintiff sought review of the ALJ's determination by the
Appeals Council, which was denied on May 7, 2014. See Dkt. No. 1 at 5. In its Order, the
Appeals Council informed Plaintiff that if he disagreed with its decision, he had sixty-days from
the day he received the denial in which to file a civil action seeking judicial review of the
Commissioner's decision. Id. at 3; Dkt. No. 8-2 at 2. Pursuant to the regulations, the date of
receipt is presumed to be five days after the date of the notice, absent a reasonable showing to the
contrary. 20 C.F.R. § 416.1401. Plaintiff filed the current action on July 18, 2014. Dkt. No. 1.

Defendant moved to dismiss Plaintiff's complaint as untimely, alleging that the sixty-day
time period to file this action started running on May 7, 2014, the day the Appeals Council sent
notice of its action to Plaintiff. See Dkt. No. 8-3 at 3-4. In opposition, Plaintiff alleges that
although the notice itself is dated May 7, 2014, the envelope it was received in was postmarked
May 12, 2014. See Dkt. No. 9 at 1-2. Therefore, Plaintiff contends, the date of presumed receipt
would be five days after that date, on May 17, 2014. See id.; 20 C.F.R. § 416.1401. Further,
Plaintiff asserts that because May 17, 2014 fell on a weekend, notice was not actually received
2

until May 19, 2014. See Dkt. No. 9 at 2. Under Plaintiff's calculation, "[t]his civil action was
electronically filed on July 18, 2014, 60 days from the assumed receipt date, thus making it
timely." Id.
In a Report and Recommendation dated October 19, 2016, Magistrate Judge Thérèse
Wiley Dancks recommended that the Court grant the Commissioner's motion and dismiss the
complaint as untimely. See Dkt. No. 12 at 8. Specifically, Magistrate Judge Dancks stated that
"[t]he sixty-day limit has been found by the Supreme Court to be a statute of limitations, and
since the limit 'is a condition on the waiver of sovereign immunity,' it must be strictly construed."
Dkt. No. 12 at 4 (quoting Bowen v. City of New York, 476 U.S. 467, 479 (1986)). Further,
Magistrate Judge Dancks determined that, even if it is accepted that the envelop was post-marked
May 12, 2014, thus extending the date of presumed receipt to May 17, 2014, the complaint is
nevertheless untimely. As noted by Magistrate Judge Dancks, there is no authority in either the
statute or the regulations interpreting the statute for Plaintiff's contention that in the event the
presumptive fifth day falls on a weekend or holiday, the sixty-day statute of limitations period
begins to run the next business day. Dkt. No. 12 at 7; 42 U.S.C. § 405(g); 20 C.F.R. §
422.210(c). Finally, Magistrate Judge Dancks found that although the statute of limitations in §
405(g) is subject to equitable tolling, "Plaintiff has neither sought equitable tolling nor presented
evidence of due diligence and extraordinary circumstances in this case." Dkt. No. 12 at 8.
III. DISCUSSION
When a party files specific objections to a magistrate judge's report, the district court
engages in a de novo review of "those portions of the report or specified proposed findings or
recommendations to which objection is made." 28 U.S.C. § 636(b)(1). When a party files
"[g]eneral or conclusory objections or objections which merely recite the same arguments [that he
3

presented] to the magistrate judge," the court reviews those recommendations for clear error.
Chime v. Peak Sec. Plus, Inc., 137 F. Supp. 3d 183, 187 (E.D.N.Y. 2015) (quotation omitted).
After the appropriate review, "the court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). However,
failure to object timely to any portion of a magistrate's report operates as a waiver of further
judicial review of those matters. Roland v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (quoting
Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989)).
Having carefully reviewed the entire record in this matter and the applicable law, the
Court finds that Magistrate Judge Dancks correctly determined that Plaintiff's complaint is
untimely and that nothing in the record supports the application of equitable tolling. In Myer v.
Colvin, No. 1:14-cv-883, 2015 WL 224749 (N.D.N.Y. Jan. 15, 2015), a factually identical case,
the plaintiff raised the same arguments as those presently before the Court, which Judge Hurd
rejected. By regulation, section 405(g) has been interpreted to require that judicial review "be
instituted within 60 days after the Appeals Council's notice of denial of request for review of the
administrative law judge's decision or notice of the decision by the Appeals Council is received
by the individual [.]" 20 C.F.R. § 422.210(c). Accordingly, "[r]ather than commencing on the
date notice of decision is [issued or] mailed to the claimant, the sixty day period starts from the
time notice is received by the claimant." Matsibekker v. Heckler, 738 F.2d 79, 81 (2d Cir. 1984)
(emphasis omitted). "[T]he date of receipt ... is 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);
Matsibekker, 738 F.2d at 81.
For purposes of the pending motion, the Court will accept Plaintiff's assertion that the
Appeals Council notice was not mailed until May 12, 2014, despite Plaintiff's failure to submit
4

any relevant evidence in support of this assertion. See Myer, 2015 WL 224749, at *3 (finding that
the plaintiff failed to rebut the presumption of receipt where her complaint was unverified, and
she submitted no affidavits, declarations or other evidence showing that she did not receive the
notice). Even assuming the notice was mailed on May 12, 2014, and received by Plaintiff's
counsel on Saturday, May 17, 2014, Plaintiff's appeal was not filed until July 18, 2014, sixty-two
days after receipt of the notice. As correctly noted by Magistrate Judge Dancks, Plaintiff has
failed to provide any support for his argument that, since the notice was received on a weekend,
the date of receipt for purposes of the filing requirement was Monday, May 19, 2014. As the
court held in Myer, neither 42 U.S.C. § 405(g), nor 20 C.F.R. § 422.201(c), supports the position
that, in the event the presumptive five day for receipt is a Saturday, Sunday, or holiday, the sixtyday limitation period begins to run on the next business day. See Myer, 2015 WL 224749, at *3.
Finally, the Court finds that Magistrate Judge Dancks correctly determined that Plaintiff
neither sought equitable tolling nor presented evidence of due diligence and extraordinary
circumstances that would warrant the application of equitable tolling. As such, Magistrate Judge
Dancks correctly determined that Plaintiff's complaint was untimely and that Defendant's motion
to dismiss should be granted.
IV. CONCLUSION
Accordingly, the Court hereby
ORDERS that Magistrate Judge Dancks' October 19, 2016 Report and Recommendation
is ADOPTED in its entirety for the reasons set forth therein; and the Court further
ORDERS that the Commissioner's motion to dismiss is GRANTED and Plaintiff's
complaint is DISMISSED; and the Court further

5

ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Decision and Order on the
parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: May 11, 2017
Albany, New York

6