Harrison v. Commissioner of Social Security

Filing 17

REPORT AND RECOMMENDATION re: 7 Amended Complaint filed by Ronda A. Harrison, 11 MOTION to Dismiss filed by Commissioner of Social Security. Accordingly, for all the foregoing reasons, I respectfully recommend that defendant' s motion for summary judgment be granted and that the complaint be dismissed as untimely. (As further set forth in this Order.) Objections to R&R due by 4/10/2017 (Signed by Magistrate Judge Henry B. Pitman on 3/27/2017) Copies Sent By Chambers(cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
RONDA A. HARRISON,

:
Plaintiff,

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

15 Civ. 1702 (VSB)(HBP)

:

-against-

:

REPORT AND
RECOMMENDATION

:
:

-----------------------------------X

PITMAN, United States Magistrate Judge:

TO THE HONORABLE VERNON S. BRODERICK, United States
District Judge,

I.

Introduction

By notice of motion dated June 23, 2015 and electronically filed August 17, 2015 (Docket Item ("D.I.") 11), defendant
moves to dismiss, or, in the alternative, for summary judgment
dismissing, plaintiff's complaint on the ground that it is
untimely.

For the reasons set forth below, I respectfully

recommend that defendant's motion for summary judgment be granted
and that the complaint be dismissed as untimely.

II.

Facts

Plaintiff commenced this action seeking judicial review
of a final decision of the Commissioner of Social Security (the
"Commissioner") denying her application for disability insurance
benefits ("DIB"); the action is brought pursuant to Section
205(g) of the Social Security Act, 42 U.S.C. § 405(g) (the
"Act").
Plaintiff submitted her application for DIB on December
19, 2011 (Declaration of Roxie Rasey Nicoll, dated June 14, 2015
(D.I. 14) ("Nicoll Decl."), Ex. 1, at 41).2

The claim was ini-

tially denied on April 13, 2012 (Nicoll Decl., Ex. 1, at 4).
Plaintiff subsequently requested a hearing, and an Administrative
Law Judge (an "ALJ") conducted a hearing on June 17, 2013 (Nicoll
Decl., Ex. 1, at 4).

Plaintiff was represented by an attorney at

the hearing (Nicoll Decl., Ex. 1, at 4).

The ALJ concluded that

plaintiff suffered from edema, obesity, asthma, sleep apnea and
1

Because the exhibits attached to the Nicoll Declaration are
inconsistently paginated, my citations to page numbers refer to
the page numbers assigned by the Court's ECF system that appear
on the upper right corner of each page.
2

Ms. Nicoll identifies herself as the "Chief of Court Case
Preparation and Review Branch 4 of the Office of Appellate
Operations, Office of Disability Adjudication and Review, Social
Security Administration ["SSA"]" (Nicoll Decl., at 1). She
states that her declaration is based on her review of the official file maintained by the Office of Disability Adjudication and
Review relating to plaintiff's claim (Nicoll Decl. ¶ 3).
2

degenerative joint disease of the lumbosacral spine (Nicoll
Decl., Ex. 1, at 6).

Nevertheless, he concluded that plaintiff

had the residual functional capacity to perform sedentary work,
with a number of limitations (Nicoll Decl., Ex. 1, at 7).

The

ALJ found that although plaintiff was not capable of performing
her past relevant work as a court officer or lieutenant/sergeant,3 she was capable of performing the requirements of
an information clerk, telephone solicitor and order filler
(Nicoll Decl., Ex. 1, at 10-11).
Plaintiff timely requested review of the ALJ's decision, and on December 24, 2014, the Appeals Council advised
plaintiff that it had denied her request for review (Nicoll Decl.
¶ 3(a) & Ex. 2, at 1).

The Appeals Council's notice advised

plaintiff that she had the right to seek judicial review of the
adverse decision by filing a complaint in federal court.

The

notice went on to state:
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 you receive this
letter. We assume you received this letter 5 days

3

The record does not contain a further description of plaintiff's past relevant work beyond the description in the ALJ's
decision.
3

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.

(Nicoll Decl., Ex. 2, at 2).

The 65th day after December 24,

2014 was February 27, 2015.
Plaintiff submitted her complaint to the Court's Pro Se
Office on March 4, 2015 (D.I. 2).4

There is no evidence in the

record that plaintiff ever sought an extension of time to file
her action from the Appeals Council (see Nicoll Decl. ¶ 3(b)).
After defendant filed its motion to dismiss, I issued
an Order mea sponte on September 30, 2015 giving plaintiff until
October 30, 2015 to submit any opposition she might have (D.I.
15).5

I subsequently extended plaintiff's time to file her
4

The signature page was missing from plaintiff's initial
complaint; plaintiff filed a corrected complaint on April 10,
2015 that cured this defect (D.I. 7). The complaint and the
corrected complaint are otherwise the same in all respects.
Accordingly, I shall consider the original complaint as the
operative pleading and use March 4, 2015 as the filing date.
5

My September 30, 2015 Order provided:
By notice of motion dated June 23, 2015 and electronically filed August 17, 2015 (Docket Item 11), the
Commissioner of Social Security has submitted a motion
to dismiss. If the motion is granted, it will result
in the dismissal of plaintiff's claims with prejudice
(continued...)
4

opposition to January 15, 2016 (D.I. 16).

My staff mailed a copy

of both Orders to plaintiff; they have not been returned as
undeliverable.

Plaintiff has not submitted any opposition to the

Commissioner's motion nor has she contacted my chambers in any
way.

The closest plaintiff has come to explaining her failure to

file her complaint in a timely manner is the brief statement in
her complaint that she did not receive the Appeals Council's
decision until January 5, 2015 (Complaint, at 2).

5

(...continued)
and will terminate the case. To date, plaintiff has
not served or filed any opposition to the motion, nor
has she requested an extension of time within which to
serve opposition papers.
Although I shall consider the merits of the Commissioner's motion and shall not grant the motion on
default, plaintiff's failure to submit any opposition
to the motion [to dismiss] makes it substantially more
likely that the motion will be granted. Thus, plaintiff's failure to oppose the motion increases the
likelihood that her complaint will be dismissed, and
that the Social Security Administration's decision
denying her benefits will be affirmed.
Accordingly, if plaintiff wishes to submit any
opposition to the Commissioner's pending motion, she is
directed to submit such papers no later than October
30, 2015. In the absence of a request for an extension
of time, I shall consider the motion fully submitted as
of that date and ready for decision.
5

III.

Analysis

Section 205(g) of the Act provides, in pertinent part:
Any individual, after any final decision of the Commissioner of Social Security . . . may obtain a review of
such decision by a civil action commenced within sixty
days after the mailing to [her] of notice of such
decision or within such further time as the Commissioner of Social Security may allow.
42 U.S.C. § 405(g).

The Commissioner's regulations provide an

identical time limit for seeking judicial review:
Time for instituting civil action. Any civil action
described in paragraph (a) of this section must 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,
institution, or agency, except that this time may be
extended by the Appeals Council upon a showing of good
cause. For purposes of this section, the date of
receipt of notice of denial of request for review of
the presiding officer'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).

The procedure set forth in Section 205

is the exclusive vehicle for seeking review of an adverse decision by the Commissioner of Social Security.

42 U.S.C. § 405(h)

("No findings of fact or decision of the Commissioner of Social
Security shall be reviewed by any person, tribunal, or governmental agency except as herein provided."); Wong v. Bowen, 854 F.2d
630, 631 (2d Cir. 1988) (per curiam).

6

Plaintiff's complaint here is clearly untimely, and
dismissal is warranted unless some exception to the general rule
is applicable.

See Liranzo v. Commissioner of Soc. Sec., 411 F.

App'x 390, 391-92 (2d Cir. 2011) (summary order) (affirming
dismissal of action brought under Section 205 of the Act as
untimely); Louis v. Commissioner of Soc. Sec., 349 F. App'x 576,
578 (2d Cir. 2009) (summary order) (same); Velez v. Apfel, 229
F.3d 1136 (Table), 2000 WL 1506193 at *1-*2 (Text) (2d Cir. 2000)
(summary order) (same); Blaize v. Commissioner, Soc. Sec. Admin.,
166 F.3d 1199 (Table), 1998 WL 777050 at *1 (Text) (2d Cir. 1998)
(summary order) (same).
If plaintiff were able to rebut the presumption that
she received notice of the Appeals Council's decision within five
days of its mailing, her action might be timely.

However, the

presumption is not rebutted by the conclusory statement of nonreceipt that plaintiff offers here.
"[A] plaintiff must do more than merely assert that
[s]he did not receive the notice within five days";
rather, [s]he must make a reasonable showing by
"present[ing] some affirmative evidence indicating that
the actual receipt occurred more than five days after
issuance." Liranzo v. Astrue, 07 CV 5074, 2010 WL
626791, at *2 (E.D.N.Y. Feb. 23, 2010) (quoting Guinyard v. Apfel, 99 CV 4242, 2000 WL 297165, at *4 (S.D.N.Y. Mar. 22, 2000)[), aff'd, 411 F. App'x 390, 391-92
(2d Cir. 2011)]; see also Velez v. Apfel, 229 F.3d 1136
(2d Cir. 2000) (presumption not rebutted where plaintiff made no "reasonable showing to the contrary"

7

beyond her conclusory allegation that she never received the notice).
Kesoglides v. Commissioner of Soc. Sec., No. 13-CV-4724 (PKC),
2015 WL 1439862 at *3 (E.D.N.Y. Mar. 27, 2015) (fourth brackets
in original).

Plaintiff offers no details in support of her

contention that she did not receive notice of the Appeals Council's decision until 12 days after it was mailed to her.
I have also considered whether an equitable toll might
enable plaintiff to avoid dismissal.

A physical or mental

illness may give rise to an equitable toll.

See Canales v.

Sullivan, 936 F.2d 755, 758-59 (2d Cir. 1991); Social Security
Ruling ("SSR") 91-5p, 56 FR 29971-01, 1991 WL 295453 (July 1,
1991).

SSR 91-5p states:
When a claimant presents evidence that mental
incapacity prevented him or her from timely requesting
review of an adverse determination . . . by a Federal
district court, and the claimant had no one legally
responsible for prosecuting the claim . . . at the time
of the prior administrative action, SSA will determine
whether or not good cause exists for extending the time
to request review.
*

*

*

In determining whether a claimant lacked the
mental capacity to understand the procedures for requesting review, the adjudicator must consider the

8

following factors . . . : [a]ny mental or physical
condition which limits the claimant's ability to do
things for him/herself.
SSR 91-5p, supra, 1991 WL 295453 at *2; see also Canales v.
Sullivan, supra, 936 F.2d at 759 ("Where a claimant avers incapacity due to mental impairment during the 60–day period, the
district court should permit the claimant to present evidence in
support of this claim."); Kesoglides v. Commissioner of Soc.
Sec., supra, 2015 WL 1439862 at *4 ("To toll the statute of
limitations based on mental impairment, a petitioner must make
more than a 'conclusory and vague claim,' that includes 'a
particularized description of how her condition adversely affected her capacity to function generally or in relationship to
the pursuit of her rights[.]'" (alteration in original)), quoting
Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000).
Plaintiff alleges in her complaint that she suffers
from sleep apnea, fibromyalgia,6 rheumatoid arthritis, migraines,
Addison disease,7 asthma, a lumbar disc degenerative disease and

6

Fibromyalgia is "pain and stiffness in the muscles and
joints that either is diffuse or has multiple trigger points."
Dorland's Illustrated Medical Dictionary ("Dorland's") 703 (32nd
ed. 2012).
7

Addison disease is "a chronic type of adrenocortical insufficiency, characterized by hypotension, weight loss, anorexia,
weakness, and a bronzelike hyperpigmentation of the skin."
Dorland's at 528. The disease is "fatal in the absence of
replacement therapy." Dorland's at 528.
9

knee problems (Complaint, at 1).

However, plaintiff has not

offered any evidence, nor does she allege, that those conditions
prevented her from timely requesting review.

Thus, there is

nothing in the record that could support an equitable toll.
Finally, I have not overlooked the fact that the date
of the Appeals Council's decision was December 24, 2014, that
Christmas fell on a Thursday in 2014 and that for many government
employees, the next business day after December 24, 2014 was
Monday, December 29, 2014.
73,459 (Dec. 5, 2014).

Exec. Order No. 13682, 79 Fed. Reg.

The Executive Order making December 26,

2014 a federal holiday did not reach employees of the United
States Postal Service, Memorandum from the U.S. Office of Personnel Mgmt. (Dec. 5, 2014),
https://www.chcoc.gov/content/memorandum-heads-executive-departme
nts-and-agencies-5, and the Postal Service was operating on that
date.

Thus, it does not appear that there was an unusually long

suspension of mail service after December 24, 2014 that might
warrant consideration in this case.
There can be no question that DIB benefits are very
important sources of income to many members of our society and
that dismissal of a claim seeking these benefits on the ground
that it is time-barred may appear to involve an element of
inclemency.

However, "in the long run, experience teaches that
10

strict adherence to the procedural requirements specified by the
legislature is the best guarantee of evenhanded administration of
the law."

Mohasco Corp. v. Silver, 447 U.S. 807, 826 (1980);

accord McNeil v. United States, 508 U.S. 106, 113 (1993); Baldwin
Cty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (per curiam)
("Procedural requirements . . . are not to be disregarded by
courts out of a vague sympathy for particular litigants.").
Plaintiff filed her appeal beyond the sixty-day limit mandated by
Congress, and there is simply no legal basis for any relief.

IV.

Conclusion

Accordingly, for all the foregoing reasons, I respectfully recommend that defendant's motion for summary judgment be
granted and that the complaint be dismissed as untimely.

V.

Objections

Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72(b) of
the Federal Rules of Civil Procedure, the parties shall have
fourteen (14) days from receipt of this Report to file written
objections.

See also Fed.R.Civ.P. 6(a).

Such objections (and

responses thereto) shall be filed with the Clerk of the Court,
with courtesy copies delivered to the Chambers of the Honorable
Vernon S. Broderick, United States District Judge, 40 Foley
11

Square, Room 415, and to the Chambers of the undersigned, 500
Pearl Street, Room 1670, New York, New York 10007.

Any requests

for an extension of time for filing objections must be directed
to Judge Broderick.

FAILURE TO OBJECT WITHIN FOURTEEN (14)

DAYS

WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE
REVIEW.

Thomas v. Arn,

v. Male Juvenile,

474 U.S. 140, 155 (1985); United States

121 F.3d 34, 38

(2d Cir. 1997); IUE AFL-CIO

Pension Fund v. Herrmann,

9 F.3d 1049, 1054

v. Johnson,

300

968 F.2d 298,

(2d Cir. 1993); Frank

(2d Cir. 1992); Wesolek v. Canadair

Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714
F. 2 d 2 3 4 , 2 3 7 - 3 8 ( 2 d Cir . 19 8 3 )

Dated:

(~ cur i am) .

New York, New York
March 27, 2017
Respectfully submitted,

HENRYPiAN
United States Magistrate Judge

Copies transmitted to:
Ms. Ronda A. Harrison
212 Mine Road
Monroe, New York 10950

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Joseph A. Pantoja, Esq.
Assistant United States Attorney
Southern District of New York
86 Chambers Street
New York, New York 10007

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