Vazquez-Ocasio v. Commissioner of Social Security

Filing 28

OPINION AND ORDER re: 26 LETTER MOTION to Reopen Case addressed to Magistrate Judge Robyn F. Tarnofsky from Melissa Vazquez dated 10/31/2024. filed by Melissa E. Vazquez-Ocasio, 16 MOTION to Dismiss the Complaint or, in the Alternativ e, for Summary Judgment. filed by Commissioner of Social Security. For the foregoing reasons, Defendant's motion to dismiss is GRANTED, without prejudice to Plaintiff's filing an amended complaint within 30 days of the date of this opinion and order. The amended complaint should address the issues with the Complaint discussed in this opinion and order. The Clerk of Court is respectfully requested to terminate ECF 16 and to terminate ECF 26 as moot, since this case has not been closed. SO ORDERED. (Signed by Magistrate Judge Robyn F. Tarnofsky on 3/11/2025) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MELISSA E. V., 1
Plaintiff,
CIVIL ACTION NO. 24 Civ. 5546 (RFT)

-v-

OPINION AND ORDER
LEE DUDEK, ACTING COMMISSIONER
OF SOCIAL SECURITY, 2
Defendant.

ROBYN F. TARNOFSKY, United States Magistrate Judge:
Plain?? Melissa E. V., proceeding without a lawyer, ?led suit for judicial review of a ?nal
determina?on by the Commissioner of the Social Security Administra?on (the “SSA”), dismissing
her request for Appeals Council review of the denial by the Administra?ve Law Judge (the “ALJ”)
of Plain??’s claim for supplemental security income (“SSI”) under the Social Security Act (the
“Act”). (See ECF 1, Compl. ¶¶ 6-7.) Pending before the Court is Defendant’s mo?on to dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (See ECF 16, Mot. To Dismiss.)
Also pending before the Court is Plain??’s mo?on to re-open the case (see ECF 26, Mot. To ReOpen), although the case has not been closed. Having carefully reviewed the par?es’
submissions, for the reasons set forth below, the mo?on to dismiss is GRANTED without

To protect Plain??’s privacy, she is iden??ed by her ?rst name and middle and last
ini?als only.
1

Lee Dudek is the Ac?ng Commissioner of the Social Security Administra?on. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, he is subs?tuted as the defendant in this
ac?on.
2

prejudice to Plain??’s ?ling an amended complaint addressing the issues raised in this opinion
and order. Plain??’s mo?on to re-open is DENIED as moot.
PROCEDURAL HISTORY
Plain?? Melissa E. V., the claimant’s mother, applied for SSI, alleging that claimant was
disabled beginning on October 20, 2010. (See ECF 17, Declara?on of Lesha Cowell in Supp. ¶ 3;
ECF 17-1, ALJ Decision at 7-8.) On October 27, 2021, the ALJ found that the claimant had not
been disabled since January 9, 2017, and the ALJ denied Plain??’s claim for SSI. (See ECF 17-1,
ALJ Decision at 1, 17.) The decision was sent to Plain?? by mail to 546 E 182nd Street, Apt. 1E,
Bronx, NY 10457. (See id. at 1.)
Plain?? appears to have ?led a ?mely request for review of the ALJ’s decision by the
Appeals Council, because on October 14, 2022, the Appeals Council denied her request for
review. (See ECF 17-2, No?ce of Appeals Council Ac?on at 1.) The decision was sent to Plain??
by mail to 546 E 182nd Street, Apt. 1E, Bronx, NY 10457. (See id.) The materials sent to Plain??
stated that she must ?le any civil ac?on challenging the ALJ’s decision within 60 days of
receiving the no?ce of the Appeals Council’s decision; Plain?? is assumed to have received the
Appeals Council’s no?ce ?ve days a?er the date on the decision leter unless she shows that she
did not receive it during that ?ve-day period. (See id. at 2-3.)
On April 11, 2024, Plain?? wrote to the Appeals Council no?ng that she had called the
SSA because she had not received any documents to appear on behalf of claimant in connec?on
with the SSI applica?on. (See ECF 17-3, Appeals Council Leter at 1, 7.) Plain?? wrote that she
no longer resided at the address where the October 14, 2022 Appeals Council no?ce had been
sent: a shelter assignment record indicates that Plain?? was assigned to a residence at 652 Park
2

Avenue Brooklyn, NY 11206, with a start date of July 23, 2022. (See id. at 6-7.) An undated leter
from the Brooklyn residence con?rms that Plain?? had been living there since December 12,
2022. (See id. at 4.)
On May 7, 2024, the Appeals Council responded, construing Plain??’s leter as a request
to re-open and change its October 14, 2022 decision denying the request for review. (See id. at
1.) The Appeals Council declined to do so, sta?ng that Plain??’s documents did not create a
reasonably probability that the ALJ’s denial of SSI bene?ts would change. (Id.)
Plain??, proceeding without a lawyer, ?led her Complaint on July 18, 2024. (See ECF 1,
Compl.) Plain?? alleged in her Complaint that she received the Appeals Council’s no?ce in May
2024. (Id. ¶ 8.) By Order of Reference dated July 31, 2024, Judge Valerie E. Caproni referred this
case to me for social security purposes. (See ECF 8, Order of Reference.) On September 10,
2024, all par?es consented to my jurisdic?on pursuant to 28 U.S.C. § 636(c) and Rule 73(b)(1) of
the Federal Rules of Civil Procedure. (See ECF 15, Consent to Jurisdic?on.)
On September 30, 2024, Defendant moved to dismiss the Complaint as un?mely
pursuant to Rule 12(b)(6) or, in the alterna?ve, for summary judgment pursuant to Rule 56. (See
ECF 16, Mot. To Dismiss; ECF 18, Defs.’ Mem. in Supp. of Mot. To Dismiss.) Speci?cally,
Defendant contends that Plain??’s Complaint should be dismissed as un?mely pursuant to 42
U.S.C. § 405(g), because this ac?on was not commenced within 60 days a?er Plain??’s
presumed receipt of the Appeals Council’s no?ce. (See ECF 18, Defs.’ Mem. in Supp. of Mot. To
Dismiss at 7.)
On October 31, 2024, I directed Plain?? to respond to Defendant’s mo?on by November
4, 2024. (See ECF 24, Order.) Plain?? did not respond to Defendant’s mo?on or request an
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extension of ?me to respond. On November 13, 2024, I scheduled a telephonic status
conference for November 19, 2024 to discuss Plain??’s inten?on to respond to the mo?on to
dismiss. (See ECF 25, Order.) On November 26, 2024, Plain?? ?led a leter mo?on reques?ng
that I re-open the case. (See ECF 26, Mot. To Re-Open)
DISCUSSION
I.

Legal Standards
A.

Mo?on To Dismiss

A mo?on to dismiss based on statute of limita?ons grounds is generally treated as a
mo?on to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule
12(b)(6). 3 See Kesoglides v. Comm’r of Soc. Sec., No. 13-CV-4724 (PKC), 2015 WL 1439862, at *2
(E.D.N.Y. Mar. 27, 2015) (“A statute of limita?ons defense, based exclusively on dates contained
within the complaint or appended materials, may be properly asserted by a defendant in a Rule
12(b)(6) mo?on.”). 4
In deciding a mo?on to dismiss, the Court “must accept as true all of the allega?ons
contained in a complaint,” but “[t]hreadbare recitals of the elements of a cause of ac?on,
supported by mere conclusory statements, do not su?ce.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). When deciding a Rule 12(b)(6) mo?on, a district court may consider, in addi?on to the
A court may decide either to “exclude the addi?onal material and decide the mo?on on
the complaint alone or convert the mo?on to one for summary judgment under Fed. R. Civ. P.
56.” Girardi v. Ferrari Express, Inc., No. 20-CV-4298 (VSB), 2023 WL 2744027, at *3 (S.D.N.Y. Mar.
31, 2023) (quo?ng Friedl v. City of N.Y., 210 F.3d 79, 83 (2d Cir. 2000)). As this Court is resolving
the mo?on based on the Complaint, as well as those documents properly incorporated by
reference, Defendant’s mo?on for summary judgment in the alterna?ve need not be reached.
3

Unless otherwise indicated, this opinion and order omits all internal quota?on marks,
cita?ons, footnotes, omissions, emphases, and altera?ons in quoted text.
4

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factual allega?ons in the complaint, “documents atached to the complaint as exhibits, and
documents incorporated by reference in the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d
104, 111 (2d Cir. 2010).
The Complaint, ?led by Plain?? without a lawyer, “must be construed liberally to raise
the strongest arguments it suggests.” Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013).
B.

Statute of Limita?ons for Social Security Claims

The statutory deadline for ?ling a civil ac?on a?er ?nal rejec?on of an SSI claim is
outlined in 42 U.S.C. § 405(g). The statute provides that appeals to the district court from ?nal
decisions of the Appeals Council must be made “within sixty days a?er the mailing . . . of no?ce
of such decision or within such further ?me as the Commissioner of Social Security may allow.”
42 U.S.C. § 405(g); see Watkins v. Comm’r of Soc. Sec., No. 22-CV-3619 (PGG) (SN), 2024 WL
244381, at *2 (S.D.N.Y. Jan. 22, 2024).
Pursuant to § 405(g), the Commissioner promulgated 20 C.F.R. § 422.210(c), which
provides that any the appeal “must be ins?tuted within 60 days a?er the Appeals Council’s
no?ce of denial of request for review of the administra?ve law judge’s decision or no?ce of the
decision by the Appeals Council is received.” 20 C.F.R. § 422.210(c). Thus, “[r]ather than
commencing on the date [the] no?ce of decision is mailed to the claimant, the sixty day period
starts from the ?me no?ce is received by the claimant.” Matsibekker v. Heckler, 738 F.2d 79, 81
(2d Cir. 1984). The date of receipt is “presumed” to be ?ve days a?er the date of the no?ce,
absent a “reasonable showing to the contrary.” 20 C.F.R. § 422.210(c). Because the 60-day
limita?ons period is a condi?on to the government’s waiver of sovereign immunity, the

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limita?ons period must be strictly construed. See Bowen v. City of New York, 476 U.S. 467, 479
(1986).
Only when a claimant successfully rebuts the presump?on with a “reasonable showing”
that he received no?ce of decision a?er ?ve days, the burden shi?s to the Commissioner to
establish that the claimant received actual no?ce. See Matsibekker, 738 F.2d at 81.
II.

Analysis
A.

Plain?? Has Not Shown that the Complaint Is Timely

The Appeals Council’s denial of Plain??’s request for review is dated October 14, 2022.
(ECF 17-2, No?ce of Appeals Council Ac?on at 1.) Thus, October 19, 2022, is the presumed date
of receipt. The 60-day period for Plain?? to ?le a civil ac?on began on October 20, 2022, and
ended on December 19, 2022. 5 The Clerk of Court for the Southern District of New York
docketed Plain??’s Complaint on July 18, 2024. (See ECF 1, Compl.) Thus, unless Plain?? rebuts
the presump?on that she received the no?ce on October 19, 2022, her Complaint must be
deemed un?mely. See Liranzo v. Astrue, No. 07-CV-5074 (CBA), 2010 WL 626791, at *1 (E.D.N.Y.
Feb. 23, 2010) (“Only when a claimant successfully rebuts the presump?on with a reasonable
showing that he received no?ce of decision a?er ?ve days, the burden shi?s to the
Commissioner of Social Security to establish that the claimant received actual no?ce.”), a?’d,
411 F. App’x 390 (2d Cir. 2011).

The six?eth day a?er October 19, 2022 was Sunday, December 18, 2022; Plain??’s 60day period was extended to the next business day, December 19, 2022. See DeJesus v. Comm’r
of Soc. Sec., No. 15-CV-4211 (AT) (HBP), 2017 WL 880875, at *2 (S.D.N.Y. Mar. 3, 2017), report
and recommendation adopted, 2017 WL 2191609 (S.D.N.Y. May 17, 2017).

5

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The courts of this Circuit have previously decided that to overcome the presump?on, the
claimant must not only assert that she did not receive no?ce within ?ve days but also “must
present some a?rma?ve evidence indica?ng that actual receipt occurred more than ?ve days
a?er issuance.” Davila v. Barnhart, No. 01-CV-0194 (DLC), 2002 WL 484678, at *1 (S.D.N.Y. Apr.
1, 2002); see, e.g., Rodriguez v. Comm’r of Soc. Sec., No. 16-CV-2076 (LGS) (BCM), 2017 WL
6379618, at *3 (S.D.N.Y. Nov. 16, 2017) (?nding that a pro se plain??’s complaint lacked
“eviden?ary support” to overcome the presump?on that the plain?? had received the Appeals
Council’s no?ce within ?ve days of mailing), report and recommendation adopted, 2017 WL
6375785 (S.D.N.Y. Dec. 11, 2017); Velez v. Apfel, 229 F.3d 1136, 1136 (2d Cir. 2000) (concluding
that the presump?on was not rebuted where the plain?? made no “reasonable showing to the
contrary” beyond her “conclusory allega?on” that she never received the no?ce); Guinyard v.
Apfel, No. 99-CV-4242 (MBM), 2000 WL 297165, at *3 (S.D.N.Y. Mar. 22, 2000) (no?ng that the
plain??’s unsupported asser?ons that she did not receive the Appeals Council’s no?ce within
?ve days were insu?cient to rebut the presump?on).
Plain?? argues that she “never received any documents” because she was living at a
di?erent address when the Appeals Council’s no?ce was sent. (See ECF 17-3, Appeals Council
Leter at 7.) The Appeals Council no?ce, dated October 14, 2022, was sent to 546 E 182nd
Street, Apt. 1E, Bronx, NY 10457. (See ECF 17-2, No?ce of Appeals Council Ac?on at 1.) Plain??
claims that by July 23, 2022, she had moved to a shelter at 652 Park Avenue, Brooklyn, NY
11206, so she never received the Appeals Council’s no?ce. (See ECF 17-3, Appeals Council Leter
at 7.) However, this asser?on alone is insu?cient, as “a plain?? must do more than merely
assert that [s]he did not receive the no?ce within ?ve days . . . . Rather, a plain?? must present
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some a?rma?ve evidence indica?ng that the actual receipt occurred more than ?ve days a?er
issuance.” Liranzo, 2010 WL 626791, at *2 (concluding that the plain??’s asser?ons that he did
not receive the Appeals Council’s no?ce because his mailbox was “located outside of the
premises” and “prey by the vandals in a low[-]income community” and that he was physically
incapable of checking it daily, was insu?cient to rebut the presump?on of receipt within ?ve
days); see also Cartwright v. Comm’r of Soc. Sec., No. 19-CV-10853 (AEK), 2021 WL 4249430, at
*4 (S.D.N.Y. Sept. 17, 2021) (?nding that the plain??’s asser?on of late receipt of the Appeals
Council’s no?ce to be insu?cient and dismissing the complaint that had been ?led one day
late); Marte v. Apfel, No. 96-CV-9024 (LAP), 1998 WL 292358, at *2 (S.D.N.Y. June 3, 1998)
(commen?ng that the plain??’s unsubstan?ated a?davit “cannot provide a subs?tute for a
more concrete showing that the plain?? or her atorney actually did not receive the [Appeal
Council’s] no?ce within ?ve days of the date of mailing”).
B.

Equitable Tolling Is Not Warranted

The principle of equitable tolling may excuse a claimant’s failure to ?le his complaint on
?me. See Bowen, 476 U.S. at 479-80. “[T]he doctrine of equitable tolling permits courts to deem
?lings ?mely where a li?gant can show that [s]he has been pursuing [her] rights diligently and
that some extraordinary circumstance stood in [her] way.” Torres v. Barnhart, 417 F.3d 276, 279
(2d Cir. 2005). The plain?? bears the burden of persuasion to show that tolling is jus??ed. See,
e.g., Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000). Courts may toll the § 405(g) limita?ons
period when “the equi?es in favor of tolling the limita?ons period are so great that deference to
the agency’s judgment is inappropriate.” Bowen, 476 U.S. at 480 (quo?ng Mathews v. Eldridge,
424 U.S. 319, 330 (1976)). Equitable tolling is generally warranted only in “in rare and
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excep?onal circumstances in which a party is prevented in some extraordinary way from
exercising [her] rights.” Zerilli-Edelglass v. New York City Transit Auth., 333 F.3d 74, 80 (2d Cir.
2003). However, such tolling is “not infrequently appropriate” in cases involving social security
bene?ts, because “Congress intended to be unusually protec?ve of claimants in this area.”
Canales v. Sullivan, 936 F.2d 755, 758 (2d Cir. 1991).
There are no allega?ons in the Complaint that would allow the Court to infer that
Plain?? acted with diligence or that extraordinary circumstances prevented her from ?ling on
?me. The Appeals Council denied Plain??’s request for review on October 14, 2022. (See ECF
17-2, No?ce of Appeals Council Ac?on at 1.) There were no communica?ons from Plain?? un?l
April 11, 2024, almost one year and six months later. (See ECF 17-3, Appeals Council Leter at 7.)
Plain?? submited no evidence that she contacted the SSA or this Court in the interim. Further,
Plain?? did not take ac?on to ?le this suit un?l July 18, 2024, more than three months a?er her
prior contact with the SSA. (See ECF 1, Compl.) Plain?? also failed to ?le any opposi?on to the
Commissioner’s mo?on to dismiss by November 4, 2024. (See ECF 24, Order.) Accordingly,
Plain??’s failure to pursue her rights diligently precludes equitable tolling of the 60-day
limita?ons period. See, e.g., Twumwaa v. Colvin, No. 13-CV-5858 (AT) (JLC), 2014 WL 1928381,
at *4 (S.D.N.Y. May 14, 2014) (dismissing the complaint where the plain?? had ?led her
complaint seven days a?er the expira?on of the ?me limit); Davila v. Barnhart, 225 F. Supp. 2d
337, 340 (S.D.N.Y. 2002) (?nding that equitable tolling was not warranted where the plain?? had
?led one day late and no?ng that the plain?? had “fail[ed] to assert su?cient facts to raise an
issue as to the cause of the late ?ling”).

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III.

Leave To Replead
Plaintiff does not request leave to amend, and the Court is not obligated to grant leave

to amend sua sponte. See Trautenberg v. Paul, Weiss, Rifkind, Wharton & Garrison L.L.P., 351 F.
App’x 472, 474 (2d Cir. 2009) (holding, where the plaintiff did not seek leave to amend in
opposition to the motion to dismiss, that the district court did not abuse its discretion by failing
to grant him such leave sua sponte). Moreover, a “plaintiff need not be given leave to amend”
where, as here, Plaintiff “fails to specify . . . how amendment would cure the pleading
deficiencies in its complaint.” Moniodes v. Autonomy Cap. (Jersey) LP, No. 20-CV-5648 (GHW),
2021 WL 3605385, at *8 (S.D.N.Y. Aug. 11, 2021).
However, “[i]n this circuit, it is the usual practice upon granting a motion to dismiss to
allow leave to replead.” Leneau v. Ponte, No. 16-CV-0776 (GHW), 2018 WL 566456, at *18
(S.D.N.Y. Jan. 25, 2018) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir.
1991)). “[A] pro se litigant in particular should be afforded every reasonable opportunity to
demonstrate that [she] has a valid claim.” Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000). “A pro
se complaint should not be dismissed without the Court granting leave to amend at least once
when a liberal reading of the complaint gives any indication that a valid claim might be stated.”
Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010). Plaintiff has “not yet had the benefit of a
decision of the Court explaining the pleading standards necessary for [her] claims to survive a
motion to dismiss.” Al-Haj v. Akuamoah, No. 19-CV-6072 (LJL), 2021 WL 964211, at *5 (S.D.N.Y.
Mar. 15, 2021).
Of course, “leave to amend a complaint may be denied when amendment would be
futile.” Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (quoting Tocker v. Philip Morris Cos., 470
10

F.3d 481, 491 (2d Cir. 2006)); see also Moniodes, 2021 WL 3605385, at *8. But I believe that
granting Plaintiff leave to amend the Complaint would not necessarily be futile. Plaintiff has not
yet had an opportunity to submit an amended complaint, and Plaintiff now has the benefit of
the Court’s analysis to cure the deficiencies identified in this report and recommendation. See,
e.g., Norman v. Experian Info. Sols., Inc., No. 23-CV-9245 (GHW), 2024 WL 1175201, at *3
(S.D.N.Y. Mar. 19, 2024) (“The pleading deficiencies identified in the R&R and this order may be
corrected, so amendment is not necessarily futile.”).
Here, Plain?? may overcome a mo?on to dismiss by ?ling an amended complaint which
rebuts the presump?on that she received the Appeals Council’s no?ce of denial within ?ve days
of its issuance. The Appeals Council’s no?ce, dated October 14, 2022, was addressed to 546 E
182nd Street, Apt. 1E, Bronx, NY 10457 and creates a presump?on of receipt by October 19,
2022. (See ECF 17-2, No?ce of Appeals Council Ac?on at 1.) To rebut this presump?on, Plain??
can provide evidence in an amended complaint demonstra?ng that she resided at a di?erent
address when the no?ce was sent. Addi?onally, Defendant’s mo?on to dismiss contains
submissions by Plain?? to the SSA. (See ECF 17-3, Appeals Council Leter at 4-7.) If Plain??
wishes the Court to consider these materials, she should incorporate them in her amended
complaint. Importantly, Plain?? must “do more than merely assert that” she lived elsewhere in
October 2022; she must provide “some a?rma?ve evidence” to support her claim, such as
documenta?on substan?a?ng her place of residence at that ?me. See Liranzo, 2010 WL 626791,
at *2.
Finally, if Plain??’s case is not dismissed, it does not mean that she will necessarily
prevail on the merits of her claim for supplemental security income. Instead, the Court will
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proceed with a review of the SSA’s determina?ons. “In reviewing a ?nal decision of the SSA, this
Court is limited to determining whether the SSA’s conclusions were supported by substan?al
evidence in the record and were based on a correct legal standard.” Talavera v. Astrue, 697 F.3d
145, 151 (2d Cir. 2012) (ci?ng 42 U.S.C. § 405(g)). The Act holds that the Commissioner’s
decision is “conclusive” if it is supported by substan?al evidence. 42 U.S.C. § 405(g). “Substan?al
evidence means more than a mere scin?lla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d
Cir. 2009). It is not the Court’s func?on to “determine de novo whether [the claimant] is
disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Accordingly, if Plain?? overcomes the
statute of limita?ons challenge, she will need to further argue why the ALJ or the Appeals
Council rendered decisions that were not supported by substan?al evidence.
CONCLUSION
For the foregoing reasons, Defendant’s mo?on to dismiss is GRANTED, without prejudice
to Plain??’s ?ling an amended complaint within 30 days of the date of this opinion and order.
The amended complaint should address the issues with the Complaint discussed in this opinion

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