DeJesus v. Commissioner of Social Security

Filing 11

REPORT AND RECOMMENDATION re: 6 MOTION to Dismiss . filed by Commissioner of Social Security, 2 Complaint filed by Nancy M. DeJesus. By notice of motion dated September 3, 2015 (Docket Item ("D.I.") 6), defendant moves p ursuant to Fed.R.Civ.P. 12(b)(6) to dismiss plaintiff's complaint on the ground that it is untimely. (As further set forth in this Order.) Accordingly, for all the foregoing reasons, I respectfully recommend that defendant's motion to dismiss be granted and that the complaint be dismissed as untimely. Objections to R&R due by 3/17/2017 (Signed by Magistrate Judge Henry B. Pitman on 3/3/2017) Copies Sent By Chambers. (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
NANCY M. DEJESUS,

:
Plaintiff,

COMMISSIONER OF SOCIAL SECURITY
Defendant.

15 Civ. 4211 (AT)(HBP)

:

-against-

:

REPORT AND
RECOMMENDATION

:
:

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

PITMAN, United States Magistrate Judge:

TO THE HONORABLE ANALISA TORRES, United States District
Judge,

I.

Introduction

By notice of motion dated September 3, 2015 (Docket
Item ("D.I.") 6), defendant moves pursuant to Fed.R.Civ.P.
12(b)(6) to dismiss plaintiff's complaint on the ground that it
is untimely.

For the reasons set forth below, I respectfully

recommend that defendant's motion to dismiss 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 applications for disability income
benefits ("DIB") and supplemental security income ("SSI"); 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 applications for DIB and SSI on
February 29, 2012 (Complaint, filed May 26, 2015 (D.I. 2),
attachment at 71).

Both claims were initially denied on May 8,

2012 (Complaint, attachment at 7).

Plaintiff subsequently

requested a hearing, and an Administrative Law Judge (an "ALJ")
conducted a hearing on October 10, 2013 (Complaint, attachment at
7).

Plaintiff had a non-attorney representative present at the

hearing (Complaint, attachment at 7).

The ALJ concluded that

plaintiff suffered from a partial tear of the cruciate and medial
collateral ligaments of the left shoulder, cervical and lumbar
strains, contusions of the left hip and left knee, a fractured
finger, asthma, vertigo and a depressive disorder and that these
conditions constituted "severe impairments" (Complaint, attachment at 9).

Nevertheless, he concluded that plaintiff had the

residual functional capacity to perform light work, with a number
of limitations (Complaint, attachment at 11).

1

The ALJ found that

Because the attachment to the complaint is inconsistently
paginated, my citations to page numbers refer to those page
numbers in the headers routinely generated by fax machines,
appearing on the upper right corner of each page.
2

although plaintiff was not capable of performing her past relevant work as a home attendant, she was capable of performing the
requirements of a production assembler, addressing clerk and
messenger/courier (Complaint, attachment at 16).
Plaintiff timely requested review of the ALJ's decision, and on March 6, 2015, the Appeals Council advised plaintiff
that it had denied her request for review (Declaration of Roxie
Rasey Nicoll, dated July 25, 2015 (D.I. 7) ("Nicoll Decl.")2 ¶
3(a) & Ex. 2, at 13).

The Appeals Council's notice advised

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).
3

The Appeals Council's notice is annexed as Exhibit 2 to the
Nicoll Declaration. Although outside the complaint, the notice
can properly be considered on this motion because it is "integral" to plaintiff's complaint. See Chambers v. Time Warner,
Inc., 282 F.3d 147, 153 (2d Cir. 2002) ("Even where a document is
not incorporated by reference, the court may nevertheless consider it where the complaint 'relies heavily upon its terms and
effect,' which renders the document 'integral' to the complaint."), quoting International Audiotext Network, Inc. v.
American Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (per
curiam); Twumwaa v. Colvin, 13 Civ. 5858 (AT)(JLC), 2014 U.S.
Dist. LEXIS 66419 at *2 n.2 (S.D.N.Y. May 14, 2014) (Cott, M.J.)
(Report & Recommendation), adopted by, 2014 U.S. Dist. LEXIS
104536 (S.D.N.Y. July 29, 2014) (Torres, D.J.). Furthermore,
consideration of the Appeals Council's notice is proper to the
extent that plaintiff referred to it in the complaint. See
Twumwaa v. Colvin, supra, 2014 U.S. Dist. LEXIS 66419 at *2 n.2;
(Complaint, at 2 (alleging that plaintiff received the Appeals
(continued...)
3

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
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 2-3).
was May 10, 2015, a Sunday.

The 65th day after March 6, 2015

Pursuant to Fed.R.Civ.P. 6(a)(1)(C),

because the 65-day period ended on a Sunday, it continued to run
until the next business day, May 11, 2015.
Plaintiff submitted her complaint to the Court's Pro Se
Office on May 26, 2015 (D.I. 2).

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)).

3

(...continued)
Council's notice on March 26, 2015)).
4

After defendant filed its motion to dismiss, I issued
an Order mea sponte on January 27, 2016 giving plaintiff until
February 29, 2016 to submit any opposition she might have (D.I.
10).4

My staff mailed a copy of this Order to plaintiff; it has

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

4

My January 27, 2016 Order provided:
By notice of motion dated September 3, 2015 (Docket Item 6), the Commissioner of Social Security has
submitted a motion to dismiss. 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 February
29, 2016. 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

the Appeals Council's decision until March 26, 2015 (Complaint,
at 2).

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 governmen6

tal agency except as herein provided."); Wong v. Bowen, 854 F.2d
630, 631 (2d Cir. 1988) (per curiam).
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
7

(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"
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 20 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 . . . 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 low back pain, pericarditis,5 headaches, vertigo and

5

Pericarditis is inflammation of the "fibroserous sac that
surrounds the heart and the roots of the great vessels, comprising an external layer of fibrous tissue . . . and an inner serous
layer." Dorland's Illustrated Medical Dictionary ("Dorland's")
1411, 1412 (32nd ed. 2012).
9

fibromyalgia6 (Complaint, at 1).7

She also alleges that she

underwent surgeries on her left shoulder and left knee (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.
There can be no question that DIB and SSI 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

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.").

6

Fibromyalgia is "pain and stiffness in the muscles and
joints that either is diffuse or has multiple trigger points."
Dorland's at 703.
7

Plaintiff seems to allege that she suffers from an additional condition, but it is illegible.
10

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 to dismiss 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
Analisa Torres, United States District Judge, 500 Pearl Street,
Room 2210, 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
Torres.

FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT

IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW.
Thomas v. Arn, 474 U.S. 140, 155 (1985); United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir. 1997); IUE AFL-CIO Pension
11

Fund v. Herrmann,
Johnson,

9 F. 3d 1049, 1054

(2d Cir. 1993); Frank v.

968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair

Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714
F.2d 234, 237-38

Dated:

(2d Cir. 1983)

(per curiam).

New York, New York
March 3, 2017
Respectfully submitted,

HENRY P MAN
United States Magistrate Judge

Copies transmitted to:
Ms. Nancy M. DeJesus
1160 Cromwell Avenue
Apt. 2B
Bronx, New York 10452
Susan D. Baird, Esq.
Assistant United States Attorney
Southern District of New York
U.S. Attorney's Office
86 Chambers Street, 3rd Floor
New York, New York 10007

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