Hall v. Commissioner of Social Security
ORDER for 16 Report and Recommendations, 9 Motion to Dismiss, Motion for Summary Judgment filed by Commissioner of Social Security. Having conducted a review of the record, and for the reasons stated above, this Court finds that it was not clear error for Judge Dolinger to find that Defendant's motion for summary judgment should be granted. For the reasons stated above, the R&R is adopted in its entirety, and Defendant's motion for summary judgment is granted. The Clerk of the Court is directed to terminate the motion (Dkt. No. 9) and to close this case. The Clerk of the Court is further directed to mail a copy of this order via certified mail to pro se Plaintiff Wendell Hall, 2145 Bruckner Boulevard, Apt. 1B, Bronx, NY 10472. (As further set forth in this Order.) (Signed by Judge Paul G. Gardephe on 9/29/2017) (cf)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- against -
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
14 Civ. 7731 (PGG) (HBP)
PAUL G. GARDEPHE, U.S.D.J.:
On September 24, 2014, prose Plaintiff Wendell Hall filed the Complaint
pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), seeking
judicial review of a decision by the Acting Commissioner of Social Security (the
"Commissioner") denying his application for Supplemental Security Income ("SSI") benefits.
(See Cmplt. (Dkt. No. 2) ~ 1) On October 9, 2014, this Court referred the case to Magistrate
Judge Michael IL Dolinger. (See Order (Dkt. No. 7))
On March 3, 2015, Defendant moved to dismiss under Federal Rule of Civil
Procedure 12(b)(6) or, in the alternative, for summary judgment pursuant to Federal Rule of
Civil Procedure 56(a). (See Def. Notice of Motion (Dkt. No. 9)) Defendant argues that Hall did
not file the Complaint within sixty days of the Appeals Council decision upholding the
Administrative Law Judge's determination rejecting his disability claim, and that accordingly his
claim is time-barred. (See Def. Br. (Dkt. No. 11) at 3-6)
In support of the pending motion, the Commissioner has submitted a declaration
from Roxie Rasey Nicoll, the Chief of Court Case Preparation and Review for Branch 4 of the
Social Security Administration (':SSA") Office of Appellate Operations. (See Nicoll Deel. (Dkt.
No. 13)) Nicoll's declaration states that on July 15, 2014, the Appeals Council mailed to
Plaintiff - at his home address - its decision upholding the Administrative Law Judge's (ALJ)
finding that Hall was not disabled. (Id.~ 3(a)) Nicoll further states that the Appeals Council's
notice warned Plaintiff that he had 60 days to "ask for court review of the Administrative Law
Judge's decision by filing a civil action." (Nicoll Deel., Ex. 2 (Dkt. No. 13-2) at 2) Plaintiff did
not file this action until September 24, 2014 (see Dkt. No. 1), however, which is more than 60
days after the notice of the Appeals Council decision was sent to Plaintiff.
On March 4, 2015, Judge Dolinger ordered Plaintiff to respond to Defendant's
motion by April 3, 2015. (See Order (Dkt. No. 12)) On March 27, 2015, Plaintiff submitted
three documents reflecting medical lab results, and asked Defendant to "please take the time to
look back into my case." Plaintiff did not otherwise respond to Defendant's motion or Judge
Dolinger's order. (See Pltf. Ltr. (Dkt. No. 14) at 1) Judge Dolinger issued a second order on
July 20, 2015, which extended Plaintiffs time to respond to Defendant's motion to July 29,
2015. (See July 20, 2015 Order (Dkt. No. 15)) Plaintiff never filed responsive papers.
On August 4, 2015, Judge Dolinger issued a thorough sixteen-page Report and
Recommendation ("R&R") recommending that this Court grant Defendant's motion for
summary judgment. (See R&R (Dkt. No. 16)) The R&R was sent to the parties on August 4,
2015. (See id.) 28 U.S.C. § 636(b)(l)(C) provides that, "[w]ithin fourteen days after being
served with a copy, any party may serve and file written objections to [a magistrate judge's]
proposed findings and recommendations .... " 1 28 U.S.C. § 636(b)(l)(C); see also Fed. R. Civ.
The R&R recites the requirement that parties must file objections within fourteen days of
service, pursuant to Rule 72 of the Federal Rules of Civil Procedure, and the consequences for
failure to timely object: "Pursuant to 28 U.S.C. § 636(b)(l)(C) and Rule 72 of the Federal Rules
of Civil Procedure, the parties shall have fourteen (14) days from this date to file written
objections to this Report artd Recommendation.... failure to file tim~ly ot>j~c;;tions may
P. 72(b)(2) ("[w]ithin 14 days after being served with a copy of the recommended disposition, a
party may serve and file specific written objections to the proposed findings and
recommendations"). Here, neither side filed objections to Magistrate Judge Dolinger's R&R.
In reviewing an R&R, a district 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)(l)(C). When a timely objection has been made to the magistrate judge's R&R, the
district court judge "shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made." Id.
Here, despite clear warning that a failure to file objections would result in a
waiver of judicial review, neither side filed objections to Judge Dolinger's R&R. A "party
generally waives judicial review of an issue when he or she fails to make timely objection to a
magistrate judge's report, as long as all parties receive clear notice of the consequences of their
failure to object." DeLeon v. Strack, 234 F.3d 84, 86 (2d Cir. 2000) (citing Small v. Sec'y of
Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989)); see also McCarthy v. Manson, 714
F.2d 234, 237 (2d Cir. 1983) ("When a party fails to object timely to a magistrate's
recommended decision, it waives any right to further judicial review of that decision.").
Because Plaintiff filed no objections to Magistrate Judge Dolinger's R&R, he has
waived judicial review. This rule is non-jurisdictional, however, and because "its violation may
be excused in the interests of justice," DeLeon, 234 F.3d at 86 (citing Roldan v. Racette, 984
F.2d 85, 89 (2d Cir. 1993)), this Court will go on to consider whether there is any '"clear error
constitute a waiver of those objections both in the District Court and later on appeal to the United
States Court of Appeals." (R&R (Dkt No. 16) at 15-16 (citing 28 U.S.C. § 636(b)(l); Fed. R.
Civ. P. 72, 6(a), 6(d); Thomas v. Am, 474 U.S. 140, 150 (1985); Small v. Sec'y of Health &
Human Servs., S92 F.2d 15, 16 (2d Cir. 1989))
on the face of the record"' that precludes acceptance of the magistrate judge's recommendation.
Wingate v. Bloomberg, No. 11 Civ. 188 (JPO), 2011WL5106009, at *l (S.D.N.Y. Oct. 27,
2011) (quoting Fed. R. Civ. P. 72(b) advisory committee note; citing Nelson v. Smith, 618 F.
Supp. 1186, 1189 (S.D.N. Y. 1985) ("To accept the report and recommendation of a magistrate,
to which no timely objection has been made, a district court need only satisfy itself that there is
no clear error on the face of the record.")).
Defendant's motion is brought under the alternative procedural mechanisms of
Rule 12(b)(6) and Rule 56 of the Federal Rules of Civil Procedure. (See Def. Br. (Dkt. No. 11)
at 2) Because the expiration of the statute of limitations is an affirmative defense, dismissal on
this ground under Rule 12(b)(6) is not warranted unless the untimeliness of the lawsuit is
apparent from the face of the complaint.
Ellul v. Congregation of Christian Bros., 774
F.3d 791, 798 (2d Cir. 2014); Staehr v. Hartford Fin. Servs. Grp., Inc., 547 F.3d 406, 425-26 (2d
Cir. 2008). Here, the Complaint does not assert facts demonstrating that this case is barred by
the statute oflimitations. (See Cmplt. (Dkt. No. 2)) Accordingly, this Court will consider
Defendant's motion under Rule 56.
Pursuant to Rule 56(a), a court may "grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter oflaw." Fed. R. Civ. P. 56(a); see Gonzalez v. City of Schenectady, 728
F.3d 149, 154 (2d Cir. 2013 ). The moving party bears the burden of demonstrating the absence
of a material factual question and, in making that determination, this Court must view all facts in
the light most favorable to the non-moving party. See Celotex Corp. v. Catrett, 477 U.S. 317,
323 (1986); Huminski v. Corsones, 396 F.3d 53, 69-70 (2d Cir. 2005).
Here, Defendant has proffered evidence as to the timing of the mailing of the
Appeals Council's notice, and averred that the Complaint, filed over sixty days later, is untimely
based on the five-day receipt presumption. (See Def. Br. (Dkt. No. 11) at 3, 5-6) Plaintiff has
not sought to dispute Defendant's invocation of the presumption or to demonstrate a later receipt
of the notice, even though he was warned of the consequences of inaction. "[C]ourts in the
Second Circuit have not hesitated to find that complaints that miss this deadline by a matter of
days are untimely." Courtney v. Colvin, No. 13 Civ. 02884 (AJN), 2014 WL 129051, at *2
(S.D.N.Y. Jan. 14, 2014) (collecting cases) (granting defendant's motion to dismiss where prose
plaintiff filed a complaint seeking judicial review of a final decision denying his claim for SSI
benefits four days late).
In order to rebut the presumption that the Commissioner's final decision was
received within five days of its purported mailing date, even a pro se plaintiff must "do more
than assert that [he] did not receive the notice within five days" in his complaint. Marquez v.
Cornrn'r of Soc. Sec., No. 12 Civ. 8151(PAE),2013 WL 3344320, at *3 (S.D.N.Y. July 2, 2013)
(collecting cases). Some affirmative evidence must be presented that indicates that the actual
receipt occurred after the presumed five-day period. See Matsibekker v. Heckler, 738 F.2d 79,
81 (2d Cir. 1984) (prose plaintiff rebutted presumption by presenting evidence of late certified
mailing of the Commissioner's decision). Here, Plaintiff produced no evidence to rebut the
presumed five-day period. Barring application of the doctrine of equitable tolling - addressed
below - the failure to file a timely complaint will warrant the dismissal of the case, even where
the delay is minor.
Rodriguez ex rel. J.J.T. v. Astrue, No. 10 Civ. 9644 (PAC) (JLC),
2012 WL 292382, at *2 (S.D.N.Y. Jan. 31, 2012) (dismissing prose complaint filed three weeks
late); Johnson v. Cornrn'r of Soc. Sec., 519 F. Supp. 2d 448, 449 (S.D.N.Y. 2007) (dismissing
prose complaint filed nine days late). Strict adherence to the sixty-day limitation provided in
Section 205(g) reflects the policy imperative of "movi[ing] cases to speedy resolution in a
bureaucracy that processes millions of cases annually." Bowen v. City of New York, 476 U.S.
467' 481 (1986).
Under the circumstances, this Court must assume that Hall received the Appeals
Council notice on or about July 20, 2014. Hall does not allege, nor does the record reflect, that
he ever sought an extension of time from the Appeals Council. Under the applicable statute of
limitations, Hall had until September 18, 2014 to commence a civil action in this court, but he
did not do so until September 24, 2014. The Complaint is therefore untimely.
"The doctrine of equitable tolling may excuse a failure to file a complaint on
time,'' Borrero v. Colvin, No. 14 Civ. 5304 (LTS) (SN), 2015 WL 1262276, at *4 (S.D.N.Y.
Mar. 19, 2015), but the application of equitable tolling is "rare," Bowen, 476 U.S. at 481, and is
appropriate only upon "a showing of both extraordinary circumstances and due diligence."
Torres v. Barnhart, 417 F.3d 276, 279 (2d Cir. 2005); see Zerilli-Edelglass v. N.Y. City Transit
Auth., 333 F.3d 74, 80-81 (2d Cir. 2003). Plaintiff has not alleged any circumstances that could
be construed as sufficient to trigger the doctrine of equitable tolling. Moreover, Defendant raised
this issue in her motion, thus alerting Plaintiff to the possibility that he could make a showing to
excuse his untimeliness. (See Def. Br. (Dkt. No. 11) at 5-6) However, Plaintiff made no
showing on this issue or any other issue concerning the timeliness of his pleading.
Having conducted a review of the record, and for the reasons stated above, this
Court finds that it was not clear error for Judge Dolinger to find that Defendant's motion for
summary judgment should be granted.
For the reasons stated above, the R&R is adopted in its entirety, and Defendant's
motion for summary judgment is granted. The Clerk of the Court is directed to terminate the
motion (Dkt. No. 9) and to close this case. The Clerk of the Court is further directed to mail a
copy of this order via certified mail to pro se Plaintiff Wendell Hall, 2145 Bruckner Boulevard,
Apt. 1B, Bronx, NY 104 72.
Dated: New York, New York
September 29, 201 7
United States District Judge
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