Paniagua v. Commissioner of Social Security

Filing 23

OPINION AND ORDER: the Commissioner's Motion to Dismiss is granted and Plaintiff's Complaint is dismissed. The Clerk is respectfully requested to termininate the pending motion (Docket No. 12) and close the case. SO ORDERED. (Signed by Magistrate Judge Judith C. McCarthy on 2/21/2017) (See OPINION AND ORDER as set forth) (lnl)

Twumwaa v. Colvin, Not Reported in F.Supp.3d (2014)

2014 WL 1928381
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Akua TWUMWAA, Plaintiff,
v.
Carolyn W. COLVIN, Acting Commissioner
of Social Security, Defendant.
No. 13 Civ. 5858(AT)(JLC).
|
Signed May 14, 2014.

REPORT AND RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge.
*1 To The Honorable Analisa Torres, United States
District Judge:
Pro se Plaintiff Akua Twumwaa brings this action
pursuant to 42 U.S.C. § 405(g) seeking judicial review
of a final decision of the Acting Commissioner of Social
Security (the “Commissioner”) denying her claim for
Social Security Supplemental Security Income (“SSI”)
benefits. The Commissioner has moved to dismiss the
Complaint on the ground that it was not timely filed. For
the reasons that follow, I recommend that the motion be
granted.

I. BACKGROUND
Twumwaa applied for SSI benefits on June 6, 2007.
See Declaration of Robert Weigel, dated September
26, 2013 (“Weigel Decl.”) (Dkt. No. 10), Exhibit 1,
at ECF page number 4. 1 The application was denied,
and Twumwaa requested a hearing, which was held on
September 23, 2009. Id. Thereafter, the Administrative
Law Judge (“ALJ”) denied Twumwaa's claim for benefits
in a decision issued on October 22, 2009 (the “ALJ's
Decision”). Weigel Decl. ¶ 3(a), Exhibit 1. 2
1

The Commissioner submitted the Weigel Declaration
in support of her motion. Weigel is Chief of
Court Case Preparation and Review Branch 4
of the Office of Appellate Operations, Office of

Disability Adjudication and Review, Social Security
Administration. (Weigel Decl. at 1).

2

In light of the Court's determination that the
Commissioner's motion is properly made on the
basis of Rule 12(b)(6), and not 12(b)(1) of the
Federal Rules of Civil Procedure, see infra p. 4,
the Court cannot consider materials outside the
Complaint without converting the motion into one
for summary judgment under Rule 56. See Global
Network Commc'ns. Inc. v. City of New York. 458
F.3d 150, 154–55 (2d Cir.2006). However, the Court
can properly consider the ALJ's Decision attached
to the Weigel Declaration, which is not part of the
Complaint, because Twumwaa had actual notice of
the ALJ's Decision-indeed, it was addressed to herand the document is integral to her claim in that
Twumwaa has relied on the effects of the ALJ's
Decision in drafting her Complaint. See Courtney
v. Colvin, No. 13 Civ. 2884(AJN)(JLC), 2013 WL
5652476, at *1 n. 2 (S.D.N.Y. Oct 17, 2013) (citing
Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d
Cir.2002)), adopted by, 2014 WL 129051 (S.D.N.Y.
Jan. 14, 2014); Rodriguez ex rel. J.J.T. v. Astrue,
10 Civ. 9644(PAC) (JLC), 2011 WL 7121291, at *1
n. 2 (S.D.N .Y. July 25, 2011), adopted by 2012
WL 292382 (S.D.N.Y. Jan, 31, 2012); see also Int'l
Audiotext Network, Inc. v. AT & T. 62 F.3d 69, 72 (2d
Cir.1995) (although court limited to facts as stated in
complaint, it may consider documents incorporated
by reference without converting motion to one
for summary judgment)). Furthermore, the Court's
consideration of the ALJ's Decision is proper to the
extent that Twumwaa referred to it in the Complaint.
See Chambers. 282 F.3d at 152–53 (citations omitted);
Compl. ¶ 6 (alleging that “[t]he Social Security
Administration disallowed plaintiff's application” in
the ALJ's Decision).

Twumwaa then sought review of the ALJ's Decision, and
on April 29, 2011, the Appeals Council issued an order
remanding the case to the ALJ for further proceedings.
Weigel Decl. ¶ 3(a), Exhibit 2. Thereafter, the ALJ held
a second hearing on November 3, 2011, and the ALJ
issued a decision on November 30, 2011, again denying
Twumwaa's claim for benefits. Id., Exhibit 3. Twumwaa
sought review of that decision, and on June 7, 2013,
the Appeals Council denied the request for review (“the
Council Notice” or “the Notice”). Id., Exhibit 4.
The Council Notice denying the request for review
was sent to Twumwaa at 1650 Metropolitan Avenue,
Apartment 2B, Bronx, New York, 10462, the same

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1

Twumwaa v. Colvin, Not Reported in F.Supp.3d (2014)

address as the one listed in her Complaint. Id.; Complaint
(“Compl.”), Exhibit A. 3 A copy of the Council Notice
was also sent to Twumwaa's representative. Weigel Decl.
¶ 3(a), Exhibit 4; Compl., Exhibit A at 3. The Notice
informed Twumwaa that she had 60 days from receipt of
the Notice to file a civil action in federal court. Weigel
Decl. ¶ 3(a), Exhibit 4, at 2. The Council Notice further
stated that the date of receipt was assumed to be five days
after the date of the letter, unless Twumwaa could show
that she did not receive it within the five-day period. Id.
at 2.
3

Twumwaa attached the Council Notice to her
Complaint as required by the Southern District form,
and it is thus properly considered under Rule 10(c) of
the Federal Rules of Civil Procedure.

Twumwaa, proceeding pro se, filed her Complaint using
a Southern District form on August 16, 2013. (Dkt. No.
2). She also submitted a Request to Proceed In Forma
Pauperis, which was granted by the Court on August 26,
2013. (Dkt. Nos.1, 3). Twumwaa alleged in her Complaint
that she received the Council Notice on June 10, 2013.
Compl., ¶ 8.
On December 20, 2013, the Commissioner moved to
dismiss the Complaint, pursuant to Rules 12(b)(1) and
12(b)(6) of the Federal Rules of Civil Procedure, for
lack of subject matter jurisdiction and failure to state a
claim upon which relief can be granted. Commissioner's
Memorandum of Law in Support of Motion to Dismiss
(“Comm.Mem”) (Dkt. No. 11) at 1. Specifically, the
Commissioner contends that Twumwaa's Complaint
should be dismissed as untimely pursuant to 42 U.S.C.
§ 405(g) because the action was not commenced within
60 days after her acknowledged receipt of the Council's
Notice (that is, the final decision of the Commissioner).
Id..
*2 On February 18, 2014, Twumwaa filed a one-page
affirmation in opposition to the motion to dismiss on a
Southern District form. Dkt. No. 14. In her affirmation,
Twumwaa contended that the motion should be denied
because she was “stressed and also in pain during that time
so I gave the motion to my former attorney to respond.”
Id. By letter dated May 7, 2014, the Commissioner advised
the Court that it would not be filing any reply papers.
(Dkt. No. 17).

II. DISCUSSION
A. Standard of Review
“A statute of limitations 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) motion.” Gelber v. Stryker Corp., 788
F.Supp.2d 145, 153 (S.D.N.Y.2011) (citing Ghartey v. St.
John's Queens Hosp., 869 F .2d 160, 162 (2d Cir.1989)).
Indeed, a motion to dismiss on statute of limitations
grounds, as the Commissioner's motion here, “generally
is treated as a motion to dismiss for failure to state a
claim upon which relief can be granted pursuant to Rule
12(b)(6), as opposed to under Rule 12(b)(1).” Nghiem v.
U.S. Dep't of Veterans Affairs, 451 F.Supp.2d 599, 602
(S.D.N.Y.2006), aff'd, 323 F. App'x 16 (2d Cir. Mar. 31,
2009) (summary order), cert. denied, 558 U.S. 1137 (2010).
The reason Rule 12(b)(6) provides “the most appropriate
legal basis” for such a motion is “because expiration of
the statute of limitations presents an affirmative defense.”
Id. Accordingly, in deciding the motion, the Court “must
accept all factual allegations in the complaint as true and
draw inferences from those allegations in the light most
favorable to the plaintiff.” Jaghory v. New York State
Dep't of Educ., 131 F.3d 326, 329 (2d Cir.1997).

B. Twumwaa's Social Security Claim
1. The Complaint Is Untimely
It is well-established that the United States cannot be
sued without its consent. See, e.g., United States v. Navajo
Nation, 556 U.S. 287, 289 (2009); Cnty. of Suffolk, N.Y. v.
Sebelius, 605 F.3d 135, 140 (2d Cir.2010). Twumwaa seeks
review of the Commissioner's final decision denying her
benefits pursuant to the Social Security Act (the “Act”),
42 U.S.C. § 405(g), which provides the requisite consent
to be sued:
Any individual, after any final
decision of the Commissioner of
Social Security ... may obtain a
review of such a decision by a civil
action commenced within 60 days
after the mailing to him of notice of
such decision or within such further
time as the Commissioner of Social
Security may allow....

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Twumwaa v. Colvin, Not Reported in F.Supp.3d (2014)

42 U.S.C. § 405(g).
The Act provides that the remedy available under Section
205(g), codified at 42 U.S.C. § 405(g), is exclusive.
Specifically, “[n]o 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.” 42 U.S.C. § 405(h).

later, on June 10, 2013. 4 Given that time line, Twumwaa
was required to file a civil action (unless she received
an extension of her time to file something she did not
request) 60 days after June 10, 2013, or by August 9,
2013. 42 U.S.C. § 405(g); 20 C.F.R. § 422.210(c). However,
Twumwaa did not file her Complaint until August 16,
2013, seven days late.
4

The Code of Federal Regulations establishes further
guidelines regarding the statute of limitations for filing a
civil action pursuant to this exclusive remedy provision:
*3 Any civil action ... must be
instituted within 60 days after the
Appeals Council's notice of denial of
request for review of the presiding
officer's decision or notice of the
decision by the Appeals Council is
received by the individual.... [T]he
date of receipt of ... 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). Because the 60–day limit is a
statute of limitations, “it is a condition on the waiver of
sovereign immunity and thus must be strictly construed.”
Bowen v. City of New York, 476 U.S. 467, 479 (1986).
The Supreme Court has stated that “an interpretation that
would allow a claimant judicial review simply by filing and
being denied a petition to reopen his claim would frustrate
the congressional purpose, plainly evidenced in [the Act],
to impose a 60–day limitation upon judicial review of the
Secretary's final decision.” Califano v. Sanders, 430 U.S.
99, 108 (1977).
Here, the Appeals Council issued its decision denying
Twumwaa's request for review on June 7, 2013, and
specifically informed Twumwaa (and her representative)
that she had 60 days after receipt of the Notice to file
a civil action. It further provided that, “[i]f you cannot
file for court review within 60 days, you may ask the
Appeals Council to extend your time to file.” The Council
Notice was sent to the same address that Twumwaa
listed on her Complaint. Twumwaa acknowledged in her
Complaint that she received the Council Notice three days

Under the applicable regulations, Twumwaa was
presumed to have received the Council Notice five
days after its issuance, or by June 12, 2013. 20 C.F.R.
§ 422.210(c). Thus, as the Commissioner points out,
see Comm. Mem. at 5, n. 2, even if she had received
the Notice on June 12, rather than on June 10, her
Complaint would still not be timely. On that time
table, her Complaint would have been due by August
12, and it was not filed until August 16.

Many courts have dismissed social security cases under
similar circumstances. See, e.g., Courtney, 2014 WL
129051, at *2–3 (seven days late); Pressley v. Astrue,
No. 12 Civ. 8461(NSR) (PED), 2013 WL 3974094, at
*2–3 (S.D.N.Y. Aug. 2, 2013) (five days late); Marquez
v. Comm'r of Social Security, No. 12 Civ. 8151(PAE)
(SN), 2013 WL 3344320, at *4 (July 2, 2013) (one
month late); Rodriguez ex rel. J.J.T. v. Astrue, 10 Civ.
9644(PAC) (JLC), 2012 WL 292382, at *2 (S.D.N.Y.
Jan. 31, 2012) (21 days late); Smith v. Comm'r of Social
Security. No. 08 Civ. 1547, 2010 WL 5441669, at *1
(E.D.N.Y. Dec. 23, 2010) (four days late); Reyes v. Astrue,
07 Civ. 10560(GBD)(RLE), 2008 WL 4155362, at *1
(S.D.N.Y. Sept. 9, 2008) (two months late); Johnson v.
Comm'r of Social Security, 519 F.Supp.2d 448, 448–49
(S.D.N.Y.2007) (nine days late). 5 Twumwaa's Complaint
is similarly untimely and, like the other cases, should be
dismissed.
5

All of these eases except Pressley involved plaintiffs
proceeding pro se.

2. Equitable Tolling Is Not Warranted
Although Twumwaa's Complaint is untimely, the Court
can still review it if the doctrine of equitable tolling
applies. See Bowen, 476 U.S. at 479. “[C]ases may arise
where the equities in favor of tolling the limitations
period are ‘so great that deference to the [Social Security
Administration's] judgment is inappropriate.’ “ Id. at
480 (quoting Matthews v. Eldridge, 424 U.S. 319, 329
(1976)). To this end, the Supreme Court has held that
the application of the doctrine of equitable tolling to the

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3

Twumwaa v. Colvin, Not Reported in F.Supp.3d (2014)

60–day requirement of Section 405(g) is “fully ‘consistent
with the overall congressional purpose’ and is ‘nowhere
eschewed by Congress.’ “ Bowen, 476 U.S. at 480 (quoting
Honda v. Clark, 386 U.S. 484, 501 (1967)).
*4 Equitable tolling “permits courts to deem filings
timely where a litigant can show that ‘he has been pursuing
his rights diligently’ and that ‘some extraordinary
circumstance stood in his way.’ “ Torres v. Barnhart, 417
F.3d 276, 279 (2d Cir.2005) (quoting Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005)). Application of the doctrine is
appropriate only “in rare and exceptional circumstances
in which a party is prevented in some extraordinary
way from exercising his rights.” Zerilli–Edelglass v. N.Y.
Transit Auth., 333 F.3d 74, 80 (2d Cir.2003) (internal
citations and quotations omitted); see also, e.g., Bowen,
476 U.S. at 481 (equitable tolling appropriate where
“Government's secretive conduct prevent[ed] plaintiffs
from knowing of a violation of rights”); Canales v.
Sullivan, 936 F.2d 755, 759 (2d Cir.1991) (equitable tolling
may be warranted for untimely complaint where claimant
had mental impairment).
In examining the Complaint in the light most favorable
to Twumwaa, I find that there is nothing in the record
before the Court to demonstrate that she has been
diligently pursuing her rights or that any “extraordinary”
circumstances caused her to file her Complaint after the
60–day period had expired. See Barnhart, 417 F.3d at 279.
Twumwaa alleges nothing in her Complaint to explain the
delay in filing. In her response to the motion to dismiss,
she claims only that the Commissioner's motion should be
denied because she was “stressed” and “in pain” and “gave
the motion to my former attorney to respond.” 6 This
claim is not sufficient to invoke the doctrine of equitable
tolling.
6

It is not clear what Twumwaa means when she says
that she gave “the motion” to her former attorney.
She may mean the pending motion, or alternatively
she may be referring to the Notice she received from
the Appeals Council. In any event, this excuse does
not provide a basis for equitable tolling.

The Second Circuit has made clear that illness cannot
serve as a basis to toll the statute of limitations, observing
that to “[a]llow disability claimants who have been denied
benefits to toll the sixty-day period on grounds of poor
health would thoroughly undermine [the Social Security
Act's] sixty-day limitation period.” Wong v. Bowen. 854

F.2d 630, 631 (2d Cir.1988). See also Courtney, 2014
WL 129051. at *2 (illness insufficient basis for equitable
tolling); Bender v. Astrue, No. 09 Civ. 5738(KAM),
2010 WL 3394264, at *4 (E.D.N.Y. Aug. 23, 2010)
(alleged medical ailments did not constitute extraordinary
circumstances justifying equitable tolling). The record
before the Court does not support equitable tolling on this
basis. 7
7

Twumwaa offers no medical evidence in opposition
to the motion.

In sum, I find no basis in the record that would entitle
Twumwaa to equitable tolling. While the result here may
be harsh, given that Twumwaa only missed her filing
deadline by seven days, the 60–day limit is a statute
of limitations that must be strictly construed because
it is a condition of a sovereign immunity waiver. As
the Supreme Court has counseled, it is for Congress
and not the courts to modify procedural requirements
for obtaining judicial review of administrative decisions.
See Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S.
147, 152 (1984) (“Procedural requirements established
by Congress for gaining access to the federal courts
are not to be disregarded by courts out of a
vague sympathy for particular litigants.”). Ultimately,
“Congress' determination so to limit judicial review to
the original decision denying benefits is a policy choice
obviously designed to forestall repetitive or belated
litigation of stale eligibility claims. Our duty, of course, is
to respect that choice.” Sanders, 430 U.S. at 108.

III. CONCLUSION
*5 For the foregoing reasons, I recommend that the
Commissioner's motion to dismiss be GRANTED.

PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)
of the Federal Rules of Civil Procedure, the parties
shall have fourteen (14) days from service of this
Report to file written objections. See also Fed, R.
Civ. P. 6. Such objections, and any responses to such
objections, shall be filed with the Clerk of Court,
with courtesy copies delivered to the chambers of the
Honorable Analisa Torres and to the chambers of the

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4

Twumwaa v. Colvin, Not Reported in F.Supp.3d (2014)

undersigned, United States Courthouse, 500 Pearl Street,
New York, New York, 10007. Any requests for an
extension of time for filing objections must be directed
to Judge Torres. FAILURE TO FILE OBJECTIONS
WITHIN FOURTEEN (14) DAYS WILL RESULT IN A
WAIVER OF OBJECTIONS AND WILL PRECLUDE
APPELLATE REVIEW. See Thomas v. Arn, 474 U.S.
140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins,
Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84,
92 (2d Cir.2010) (citing Cephas v. Nash, 328 F.3d 98,
End of Document

107 (2d Cir.2003) and Mario v. P & C Food Mkts., Inc.,
313 F.3d 758, 766 (2d Cir.2002)); 28 U.S.C. § 636(b) (1);
Fed.R.Civ.P. 72. If Courtney does not have access to cases
cited herein that are reported on LexisNexis or Westlaw,
he should request copies from the Commissioner. See
Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir.2009).

All Citations
Not Reported in F.Supp.3d, 2014 WL 1928381
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5

Courtney v. Colvin, Not Reported in F.Supp.2d (2013)

2013 WL 5652476
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.

and Review, Social Security Administration. (Ortiz
Decl. at 1).

2

Jackie COURTNEY, Plaintiff,
v.
Carolyn W. COLVIN, Acting Commissioner
of Social Security, Defendant.
No. 13 Civ. 2884(AJN)(JLC).
|
Oct. 17, 2013.

REPORT AND RECOMMENDATION
JAMES L. COTT, United States Magistrate Judge.
*1 To The Honorable Alison J. Nathan, United States
District Judge:
Pro se Plaintiff Jackie Courtney brings this action
pursuant to 42 U.S.C. § 405(g) seeking judicial review
of a final decision of the Acting Commissioner of Social
Security (the “Commissioner”) denying his claim for
Social Security Supplemental Security Income (“SSI”)
benefits. The Commissioner has moved to dismiss the
Complaint on the ground that it was not timely filed. For
the reasons that follow, I recommend that the motion be
GRANTED.

I. BACKGROUND
Courtney applied for SSI benefits on August 9, 2010.
See Declaration of Donald V. Ortiz, dated June 19, 2013
(“Ortiz Decl.”), (Dkt. No. 11), Exhibit 1 (“Ex.1”), at

In light of the Court's determination that the
Commissioner's motion is properly made on the
basis of Rule 12(b)(6), and not 12(b)(1) of the
Federal Rules of Civil Procedure, see infra pp. 4–
5, the Court cannot consider materials outside the
Complaint without converting the motion into one
for summary judgment under Rule 56. See Global
Network Commc'ns. Inc. v. City of New York. 458
F.3d 150, 154–55 (2d Cir.2006). However, the Court
can properly consider the ALJ's Decision attached
to the Ortiz Declaration, which is not part of the
Complaint, because Courtney had actual notice of
the ALJ's Decision—indeed, it was addressed to
him—and the document is integral to his claim in
that Courtney has relied on the effects of the ALJ's
Decision in drafting his Complaint. See Rodriguez
ex rel. J.J.T. v. Astrue, 10 Civ. 9644(PAC)(JLC),
2011 WL 7121291, at *1 n. 2 (S.D.N.Y. July 25,
2011) (citing Chambers v. Time Warner, Inc., 282 F.3d
147, 153 (2d Cir.2002)), adopted by 2012 WL 292382
(S.D.N.Y. Jan.31, 2012); see also Int'l Audiotext
Network, Inc. v. AT & T, 62 F.3d 69, 72 (2d
Cir.1995) (although court limited to facts as stated in
complaint, it may consider documents incorporated
by reference without converting motion to one
for summary judgment)). Furthermore, the Court's
consideration of the ALJ's Decision is proper to the
extent that Courtney referred to it in the Complaint.
See Chambers, 282 F.3d at 152–53 (citations omitted);
Compl. ¶ 6 (alleging that “[t]he Social Security
Administration disallowed plaintiff's application” in
the ALJ's Decision).

Courtney then sought review of the ALJ's decision, and on
February 15, 2013, the Appeals Council sent Courtney a
letter (the “Council Letter”) denying his request for review
and informing him that he had 60 days from receipt of the
letter to file a civil action in federal court. Id. at ¶ 3(a),

3(a), Exhibit 1. 2

Exhibit 2. 3 The Council Letter further stated that the date
of receipt was assumed to be five days after the date of the
letter, unless Courtney could show that he did not receive
it within the five-day period. (Id. at 2). The Council Letter
was sent to Courtney at his Park Avenue address in the
Bronx, the same address as the one listed in his Complaint.
Id.

1

3

ECF page number 4) . 1 The application was denied,
and Courtney requested a hearing, which was held on
December 13, 2011. Id. Thereafter, the Administrative
Law Judge (“ALJ”) denied Courtney's claim in a decision
issued on January 3, 2012 (the “ALJ's Decision”). Id. at ¶

The Commissioner submitted the Ortiz Declaration
in support of her motion. Ortiz is Acting Chief of
Court Case Preparation and Review Branch 4 of the
Office of Appellate Operations, Office of Disability

Courtney attached the Council Letter to his
Complaint as required by the Southern District form,
and it is properly considered under Rule 10(c) of the

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1

Courtney v. Colvin, Not Reported in F.Supp.2d (2013)

Federal Rules of Civil Procedure. For clarity, when
citing to the Council Letter, I will cite to it as “Council
Letter, Compl. Ex. A” and use the corresponding
page numbers of the three-page letter itself.

Courtney, proceeding pro se, filed his Complaint
(“Compl.”) using a Southern District form on April
29, 2013. (Dkt. No. 2). He also submitted a Request
to Proceed In Forma Pauperis, which was granted by
the Court on May 3, 2013. (Dkt.Nos.1, 3). Courtney
alleged in his Complaint that he received the Council
Letter on February 24, 2013. Compl., at ¶ 8. Apparently
recognizing that the timeliness of his Complaint was an
issue, Courtney handwrote the following at the bottom of
his Complaint (on page 2):
PLAINTIFF IS LATE FILING
APPEAL
BECAUSE
OF
ILLNESS.
IDENTITY
WAS
STOLEN
AND
THE
(sic)
WAS NOTIFIED, AND WAS
UNAWARE OF THAT. BECAME
AWARE OF BOTH ISSUE
(sic) AFTER NEW ADDRESS
CHANGE.
On August 16, 2013, the Commissioner moved to dismiss,
pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal
Rules of Civil Procedure, for lack of subject matter
jurisdiction and failure to state a claim upon which relief
can be granted. (Commissioner's Memorandum of Law in
Support of Motion to Dismiss (“Comm.Mem”) at 1 (Dkt.
No. 12)). Specifically, the Commissioner contends that
Courtney's Complaint should be dismissed as untimely
pursuant to 42 U.S.C. § 405(g) because the action was
not commenced within 60 days after his presumed receipt
of the Council's Letter (that is, the final decision of the
Commissioner). (Id.).
*2 Courtney filed an affirmation in opposition to the
motion to dismiss on a Southern District form on August
28, 2013. (Dkt. No. 13). In his Affirmation, Courtney
attached a number of documents and stated the following
(on page 2):
I'VE PROVIDED COPY OF
DOCUMENTS
TO
SHOW
THAT I'VE BEEN HAVING
PROCEDURES
TO
FIND
OUT WHY I CAN'T HOLD
FOOD ON STOMACK (sic);

WHICH IN TURN EFFECT
(sic) MY WEIGHT, ENERGY,
SOCIAL
SETTINGS
AND
LIFE IN GENERAL, WHICH
ARE
DATED
25
APR
13
FROM
MONTEFIORE.
I HAVE ALSO PROVIDED
DOCUMENTS TO SHOW THAT
I HAVE BEEN DEALING WITH
THE FBI (VARIOUS DATES)
CONCERNING MY IDENTITY
BEING STOLEN AND USED
IN MULTIPLE STATES WITH
MULTIPLE COMPANIES AND
AGENCIES; INCLUDING BUT
NO (sic) LIMITED TO THE
NYPD, FEMA, D.O.H., CREDIT
CARD, LOAN, AND BANK
COMPANIES; WHICH ALL
HAVE BEEN OVERWHELMING
TO MY HEALTH AS WELL AS
FINACILLY (sic) BECAUSE OF
ALL THE PAPER WORK WITH
DIFFERENT LEVELS OF LAW
ENFORCEMENT IN MULTIPLE
STATES AND COURTS.
The Commissioner did not file any reply.

II. DISCUSSION
A. Standard of Review
“A statute of limitations 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) motion.” Gelber v. Stryker Corp., 788
F.Supp.2d 145, 153 (S.D.N.Y.2011) (citing Ghartey v. St.
John's Queens Hosp., 869 F.2d 160, 162 (2d Cir.1989)).
Indeed, a motion to dismiss on statute of limitations
grounds, as the Commissioner's motion here, “generally
is treated as a motion to dismiss for failure to state a
claim upon which relief can be granted pursuant to Rule
12(b)(6), as opposed to under Rule 12(b)(1).” Nghiem v.
U.S. Dep't of Veterans Affairs, 451 F.Supp.2d 599, 602
(S.D.N.Y.2006), aff'd, 323 F. App'x 16 (2d Cir. Mar.31,
2009) (summary order), cert. denied, 558 U.S. 1137, 130
S.Ct. 1121, 175 L.Ed.2d 928 (2010). The reason Rule 12(b)
(6) provides “the most appropriate legal basis” for such a

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Courtney v. Colvin, Not Reported in F.Supp.2d (2013)

motion is “because expiration of the statute of limitations
presents an affirmative defense.” Id. Accordingly, in
deciding the motion, the Court “must accept all factual
allegations in the complaint as true and draw inferences
from those allegations in the light most favorable to the
plaintiff.” Jaghory v. New York State Dep't of Educ., 131
F.3d 326, 329 (2d Cir.1997).

B. Courtney's Social Security Claim
1. The Complaint Is Untimely
It is well-established that the United States cannot be
sued without its consent. See, e.g., United States v.
Navajo Nation, 556 U.S. 287, 289, 129 S.Ct. 1547, 173
L.Ed.2d 429 (2009); Cnty. of Suffolk. N.Y. v. Sebelius,
605 F.3d 135. 140 (2d Cir.2010). Courtney seeks review
of the Commissioner's final decision denying him benefits
pursuant to the Social Security Act (the “Act”), 42 U.S.C.
§ 405(g), which provides the requisite consent to be sued:
Any individual, after any final
decision of the Commissioner of
Social Security ... may obtain a
review of such a decision by a civil
action commenced within 60 days
after the mailing to him of notice of
such decision or within such further
time as the Commissioner of Social
Security may allow....
*3 42 U.S.C. § 405(g).
The Act provides that the remedy available under Section
205(g), codified at 42 U.S.C. § 405(g), is exclusive.
Specifically, “[n]o 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.” 42 U.S.C. § 405(h).

of ... 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). Because the 60–day limit is a
statute of limitations, “it is a condition on the waiver of
sovereign immunity and thus must be strictly construed.”
Bowen v. City of New York, 476 U.S. 467, 479, 106 S.Ct.
2022, 90 L.Ed.2d 462 (1986). The Supreme Court has
stated that “an interpretation that would allow a claimant
judicial review simply by filing and being denied a petition
to reopen his claim would frustrate the congressional
purpose, plainly evidenced in [the Act], to impose a 60–
day limitation upon judicial review of the Secretary's final
decision.” Califano v. Sanders, 430 U.S. 99, 108, 97 S.Ct.
980, 51 L.Ed.2d 192(1977).
Here, the Appeals Council issued its decision denying
Courtney's request for review on February 15, 2013, and
specifically informed Courtney that he had 60 days after
the receipt of the letter to file a civil action. (Council
Letter, Compl. Ex. A at 2). It further provided that “[i]f
you cannot file for court review within 60 days, you may
ask the Appeals Council to extend your time to file.” Id.
The Council Letter was sent to the same address that
Courtney listed on his Complaint. See Complaint ¶ 2
with Council Letter at 1. Under the applicable regulation,
Courtney was presumed to have received the Council
Letter five days later, or by February 20, 2013. 20 C.F.R.
§ 422.210(c). Given that time line, Courtney was required
to file a civil action (unless he received an extension of
his time to file—something he did not request) 60 days
after February 20, 2013, or by April 22, 2013. 42 U.S.C. §
405(g); 20 C.F.R. § 422.210(c). 4 However, Courtney did
not file his Complaint until April 29, 2013, seven days late.
4

The Code of Federal Regulations establishes further
guidelines regarding the statute of limitations for filing a
civil action pursuant to this exclusive remedy provision:
Any civil action ... must be instituted
within 60 days after the Appeals
Council's notice of denial of request
for review of the presiding officer's
decision or notice of the decision by
the Appeals Council is received by
the individual.... [T]he date of receipt

As the Commissioner observed in her motion papers,
sixty days after February 20, 2013 was April 21,
2013, a Sunday. Thus, Courtney had until the next
business day, April 22, 2013, to file his complaint
under Fed.R.Civ.P. 6(a)(1)(c), 6(a)(6)(A). See Comm.
Mem. at 5 n. 2.

Many courts have dismissed social security cases under
similar circumstances. See, e.g., Pressley v. Astrue, No.
12 Civ. 8461(NSR)(PED), 2013 WL 3974094, at *2–
3 (S.D.N.Y. Aug. 2, 2013) (5 days late); Marquez v.
Commissioner of Social Security, No. 12 Civ. 8151(PAE)

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Courtney v. Colvin, Not Reported in F.Supp.2d (2013)

(SN), 2013 WL 3344320, at *4 (July 2, 2013) (one month
late); Rodriguez ex rel. J.J.T. v. Astrue, 10 Civ. 9644(PAC)
(JLC), 2012 WL 292382, at *2 (S.D.N.Y. Jan. 31, 2012) (21
days late); Smith v. Commissioner of Social Security, No.
08 Civ. 1547, 2010 WL 5441669, at *1 (E.D.N.Y. Dec. 23,
2010) (4 days late); Reyes v. Astrue, 07 Civ. 10560(GBD)
(RLE), 2008 WL 4155362, at *1 (S.D.N.Y. Sept. 9, 2008)
(two months late); Johnson v. Comm'r of Social Security,
519 F.Supp.2d 448, 448–49 (S.D.N.Y.2007) (9 days late). 5
5

All of these cases except Pressley involved plaintiffs
proceeding pro se.

*4 Courtney stated in his Complaint that he received
the Council Letter on February 24, 2013, nine days after
the notice was issued rather than the presumed five
days. As a threshold matter, this unsupported suggestion
of a possible delay in receipt of the Council Letter is
insufficient to rebut the presumed five-day notice. See,
e.g. Marquez, 2013 WL 3344320, at *4 (even granting
pro se plaintiff's complaint “liberal interpretation to
which it is entitled,” unexplained statement of delay in
receipt, “standing alone, does not constitute a ‘reasonable
showing to the contrary’ within the meaning of 20 C.F.R. §
422.210(c)”); Guinyard v. Apfel, No. 99 Civ. 4242(MBM),
2000 WL 297165, at *3 (S.D.N.Y. Mar.22, 2000) (“naked
assertion” of delayed receipt of Commissioner's final
decision insufficient to rebut presumption of receipt
within five days, “for otherwise any claimant missing
the filing deadline could evade the limitations period
simply by asserting belated receipt of the decision
without presenting any affirmative evidence of the tardy
arrival”). Moreover, as the Commissioner notes, given
that February 24, 2013 was a Sunday, a day on which mail
is not delivered, Courtney's claim of receipt is “unworthy
of credit” and fails to rebut the five-day presumption of
receipt. Comm. Mem. at 6.
In any event, even if the Court credits Courtney's date
of receipt, the Complaint is still untimely. Sixty days
following February 24, 2013 is April 25, 2013, and, by
Courtney's own admission, the Complaint was not filed
until April 29, 2013, four days after the deadline for
filing. Thus, under any scenario, Courtney's Complaint is
untimely. 6
6

In this case, the Complaint is dated April 29, 2013, it
was received by the Pro Se Office on April 29, 2013,
and filed on the docket on April 29, 2013, so there can

be no other operative date from which to calculate the
timeliness of the Complaint on the back end.

2. Equitable Tolling Is Not Warranted
Although Courtney's Complaint is untimely, the Court
can still review it if the doctrine of equitable tolling
applies. See Bowen, 476 U.S. at 479. “[C]ases may arise
where the equities in favor of tolling the limitations
period are ‘so great that deference to the [Social Security
Administration's] judgment is inappropriate.’ “ Id. at 480
(quoting Matthews v. Eldridge, 424 U.S. 319, 329, 96 S.Ct.
893, 47 L.Ed.2d 18 (1976)). To this end, the Supreme
Court has held that the application of the doctrine of
equitable tolling to the 60–day requirement of § 405(g) is
“fully ‘consistent with the overall congressional purpose’
and is ‘nowhere eschewed by Congress.’ “ Bowen, 476 U.S.
at 480 (quoting Honda v. Clark, 386 U.S. 484,501 (1967)).
Equitable tolling “permits courts to deem filings timely
where a litigant can show that ‘he has been pursuing
his rights diligently’ and that ‘some extraordinary
circumstance stood in his way.’ “ Torres v. Barnhart,
417 F.3d 276, 279 (2d Cir.2005) (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 125 S.Ct. 1807, 161 L.Ed.2d
669 (2005)). Application of the doctrine is appropriate
only “in rare and exceptional circumstances in which
a party is prevented in some extraordinary way from
exercising his rights.” Zerilli–Edelglass v. N.Y. Transit
Auth., 333 F.3d 74, 80 (2d Cir.2003) (internal citations
and quotations omitted); see also, e.g., Bowen, 476 U.S. at
481 (equitable tolling appropriate where “Government's
secretive conduct prevent[ed] plaintiffs from knowing
of a violation of rights”); Canales v. Sullivan. 936
F.2d 755, 759 (2d Cir.1991) (equitable tolling may be
warranted for untimely complaint where claimant had
mental impairment),
*5 In examining the Complaint in the light most
favorable to Courtney, I find that there is nothing
in the record before the Court to demonstrate that
Courtney has been diligently pursuing his rights or that
any “extraordinary” circumstances caused him to file
his complaint after the 60–day period had expired. See
Barnhart, 417 F.3d at 279. Courtney claims that he filed
his Complaint late due to: (1) illness; (2) stolen identity;
and (3) an address change. See Compl., at page 2. These
claims are not sufficient to invoke the doctrine of equitable
tolling.

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4

Courtney v. Colvin, Not Reported in F.Supp.2d (2013)

The Second Circuit has made clear that illness cannot
serve as a basis to toll the statute of limitations, observing
that to “[a]llow disability claimants who have been denied
benefits to toll the sixty-day period on grounds of poor
health would thoroughly undermine [the Social Security
Act's] sixty-day limitation period.” Wong v. Bowen, 854
F.2d 630, 631 (2d Cir.1988). See also Bender v. Astrue, No.
09 Civ. 5738(KAM). 2010 WL 3394264, at *4 (E.D.N.Y.
Aug.23, 2010) (alleged medical ailments did not constitute
extraordinary circumstances justifying equitable tolling).
The record before the Court does not support equitable
tolling on this basis. 7
7

The only medical evidence offered by Courtney in
opposition to the motion is a one-page endoscopy
suite discharge instruction sheet from Montefiore
Hospital that he received, apparently upon his
discharge from the hospital. Courtney Affirmation, at
page 3 (Dkt. No. 13).

In addition, Courtney has not explained how a change
of address or an alleged identity theft prevented him
from timely filing his lawsuit. No change of address
appears evident from the record before the Court. As
previously noted, the same address is listed on the
Complaint filed on April 29, 2013 as was listed in the
Council Letter sent to Courtney on February 15, 2013. 8
And Courtney acknowledges that he received the Council
Letter on February 24, 2013, As to identity theft, the only
information that Courtney provides are a letter to him (at
the Park Avenue address in the Bronx) from the Federal
Bureau of Investigation dated March 8, 2013 making
reference to an undated letter concerning his criminal
history record, a non-criminal fingerprint application on
an NYPD Form dated April 10, 2013, and a letter from
Federal Emergency Management Agency (also sent to the
Park Avenue address) dated August 12, 2013 regarding
his request for the review of a decision concerning a
debt Courtney apparently owes. Courtney Affirmation, at
pages 4–6 (Dkt, No. 13). These documents do not explain
any issues related to identity theft, nor do they warrant
any invocation of equitable tolling.
8

I note that Notice of the ALJ's Decision dated
January 3, 2012 was sent to a different address for
Courtney (a street address in Brooklyn, not at his
current residence in the Bronx). See Ortiz Dec., ¶ 3(a),
Exh. 1.

In sum, I find no basis in the record that would entitle
Courtney to equitable tolling. While the result here may
be harsh, given that Courtney only missed his filing
deadline by a few days, the 60–day limit is a statute
of limitations that must be strictly construed because it
is a condition of a sovereign immunity waiver. As the
Supreme Court has counseled, it is for Congress and
not the courts to modify procedural requirements for
obtaining judicial review of administrative decisions. See
Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147,
152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (“Procedural
requirements established by Congress for gaining access to
the federal courts are not to be disregarded by courts out
of a vague sympathy for particular litigants.”). Ultimately,
“ ‘Congress' determination so to limit judicial review
to the original decision denying benefits is a policy
choice obviously designed to forestall repetitive or belated
litigation of stale eligibility claims. Our duty, of course, is
to respect that choice.” Sanders, 430 U.S. at 108.

III. CONCLUSION
*6 For the foregoing reasons, I recommend that the
Commissioner's motion to dismiss be GRANTED.

PROCEDURE FOR FILING OBJECTIONS
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of
the Federal Rules of Civil Procedure, the parties shall
have fourteen (14) days from service of this Report to
file written objections. See also Fed.R.Civ.P. 6. Such
objections, and any responses to such objections, shall
be filed with the Clerk of Court, with courtesy copies
delivered to the chambers of the Honorable Alison
J. Nathan and to the chambers of the undersigned,
United States Courthouse, 500 Pearl Street, New York,
New York, 10007. Any requests for an extension
of time for filing objections must be directed to
Judge Nathan. FAILURE TO FILE OBJECTIONS
WITHIN FOURTEEN (14) DAYS WILL RESULT IN A
WAIVER OF OBJECTIONS AND WILL PRECLUDE
APPELLATE REVIEW. See Thomas v. Arn, 474 U.S.
140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Wagner &
Wagner. LLP v. Atkinson. Haskins. Nellis, Brittingham,
Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir.2010)
(citing Cephas v. Nash, 328 F.3d 98, 107 (2d Cir.2003)
and Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766

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Courtney v. Colvin, Not Reported in F.Supp.2d (2013)

(2d Cir.2002)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72. If
Courtney does not have access to cases cited herein that
are reported on LexisNexis or Westlaw, he should request
copies from the Commissioner. See Lebron v. Sanders, 557
F.3d 76, 79 (2d Cir.2009).
End of Document

All Citations
Not Reported in F.Supp.2d, 2013 WL 5652476

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6

Courtney v. Colvin, Not Reported in F.Supp.3d (2014)

2014 WL 129051
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Jackie COURTNEY, Plaintiff,
v.
Carolyn W. COLVIN, Acting Commissioner
of Social Security, Defendant.
No. 13 Civ. 02884(AJN).
|
Jan. 14, 2014.

MEMORANDUM AND ORDER
ALISON J. NATHAN, District Judge.
*1 The pro se Plaintiff in this matter, Mr.
Jackie Courtney, has filed a Complaint against the
Defendant Acting Commissioner of Social Security (the
“Commissioner”) seeking judicial review of a final
decision denying Mr. Courtney's claim for Social Security
Supplemental Security Income (“SSI”) benefits. (Compl.
at 1). On February 15, 2013, the Appeals Council denied
Mr. Courtney's request for review and on February 24,
2013, Mr. Courtney received the Appeals Council letter
informing him of this decision and the 60 day limitations
period, which commenced upon receipt of the letter.
(Compl. at 2–4). The Complaint was filed on April 29,
2013, and included a handwritten note stating “Plaintiff is
late filing appeal because of illness, identity was stolen and
the [sic ] was notified, and was unaware of that. Became
aware of both issue[s] after new address change.” (Compl.
at 2).
The Commissioner moved to dismiss, arguing that the
Complaint was not filed with the 60 day statute of
limitations provided by 42 U.S.C. § 405(g). (Mot. at 1)
Mr. Courtney opposed, submitting documents that he
contended demonstrated (1) that he was ill and unable to
“hold food on [his] stomac[h]” and had been dealing with
the FBI concerning his identity having been stolen. (Opp.
at 2).
The motion was referred to Magistrate Judge Cott
for a Report and Recommendation, which issued on

October 17, 2013, and recommended granting the motion
to dismiss. Magistrate Judge Cott concluded that the
Complaint was not timely filed because it was filed after
the 60 day limitations period expired. (R & R at 4–8).
Magistrate Judge Cott further construed Mr. Courtney's
assertions regarding his illness, the theft of his identity,
and his claimed address change as an invocation of
the doctrine of equitable tolling, but determined that
equitable tolling was not warranted. (R & R at 8–11).
Mr. Courtney filed an objection to the R & R on
November 4, 2013, which stated, in full, “I have provided
proof of me being ill and documentation show [sic ] all
of the other stuff I've been dealing with recently. I've
upheld all of the dates to [the] best of my ability. I have
attached medical and procedure documents as well as
documents to show some of the processes.” (Obj. at 1).
Defendant responds that Mr. Courtney has not raised
a proper objection but has simply reasserted the same
arguments made before Magistrate Judge Cott.

I. STANDARD OF REVIEW
Federal Rule of Civil Procedure 72(b)(1) provides that
a magistrate judge may hear a dispositive motion and
enter a recommended disposition of that matter. See also
28 U.S.C. § 636(b)(1)(B). Within fourteen days of being
served with a copy of such a recommended disposition,
a party may serve and file written objections to that
recommendation, and “the district judge must determine
de novo any part of the recommended disposition that has
been properly objected to.” Fed. R. Civ. Proc. 72(b)(2),
(3); see also 28 U.S.C. § 636(b)(1). However, a district
court applies a “clearly erroneous” standard in reviewing
a report and recommendation to which a party makes
only a conclusory or general objection, or simply reiterates
his original arguments. Coble v. Rock, No. 12–cv–6587,
2013 U.S. Dist. LEXIS 135674, at *3–4, 2013 WL 5323733
(S.D.N .Y. Sept. 20, 2013); Laster v. Mancini, No. 07
Civ. 8265, 2013 U.S. Dist. LEXIS 138599, at *6–7, 2013
WL 5405468 (S.D.N.Y. Sept. 25, 2013). “A decision is
‘clearly erroneous' when the reviewing Court is left with
the definite and firm conviction that a mistake has been
committed.” Laster, No. 07 Civ. 8265, 2013 U.S. Dist.
LEXIS 138599, at *7, 2013 WL 5405468 (quotation marks
omitted).
*2 In this case, Mr. Courtney has merely reiterated
his arguments made before Magistrate Judge Cott,
and a clearly erroneous standard of review would be

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1

Courtney v. Colvin, Not Reported in F.Supp.3d (2014)

appropriate. However, even reviewed de novo the Court
does not find any error in Magistrate Judge Cott's
decision.

II. THE COMPLAINT WAS NOT TIMELY FILED
From the face of Mr. Courtney's Complaint, it is clear
that he did not comply with the 60 day limitations period:
taking his allegations as true, he filed his complaint 64
days after receiving the notice from the Appeals Council
triggering the limitations period. (Compl. at 2–3). Indeed,
he concedes as much in his handwritten note on the
face of the Complaint and does not contest this point in
his papers before Magistrate Judge Cott and this Court.
As the Magistrate Judge correctly held, as a waiver of
sovereign immunity Section 405(g)'s sixty day deadline
is strictly construed and courts in the Second Circuit
have not hesitated to find that complaints that miss this
deadline by a matter of days are untimely. Bowen v. New
York, 476 U.S. 467, 479, 106 S.Ct. 2022, 90 L.Ed.2d 462
(1986); Pressley v. Astrue, No. 12 Civ. 8461, 2013 U.S.
Dist. LEXIS 109736, at *6–7 (S .D.N.Y. June 12, 2013)
(five days late); Carmichael v. Astrue, No. 12–CV–6547T,
2013 U.S. Dist. LEXIS 34182, at *6, 2013 WL 956779
(W.D.N.Y. Mar.12, 2013) (five days late); Ware v. Astrue,
No. 12 Civ. 3381, 2013 U .S. Dist. LEXIS 16256, at *3,
2013 WL 444766 (S.D.N.Y. Feb. 6, 2013) (nine days late);
Smith v. Comm'r of Soc. Sec., No. 08–cv–1547, 2010 U.S.
Dist. LEXIS 136002, at *4, 2010 WL 5441669 (E.D.N.Y.
Dec. 22, 2010) (four days late).

III. PLAINTIFF HAS NOT PROVED A BASIS FOR
EQUITABLE TOLLING
The sixty day deadline in § 405(g) is, however, potentially
subject to equitable tolling which may excuse a claimant's
failure to file the complaint on time. See Bowen, 476 U.S.
at 480. However, to obtain the benefit of equitable tolling
a claimant must prove (1) that he acted with reasonable
diligence during the time period to be tolled and (2)
extraordinary circumstances justify the application of the
doctrine. Zerilli–Edelglass v. New York City Transit Auth.,
333 F.3d 74, 80 (2d Cir.2003).
Liberally construed, and as Magistrate Judge Cott noted,
Plaintiff asserts three potential grounds for equitable
tolling: illness which made it difficult for him to “hold food
on his stomach;” the theft of his identity; and a claimed
change of address. (Opp. at 2; Compl. at 2). Plaintiff has
failed to carry his burden to show that equitable tolling

should apply. As to Plaintiff's illness, none of the materials
submitted with Plaintiff's Complaint or in connection with
the motion to dismiss demonstrates that Plaintiff was so
ill that it affected his ability to comply with the deadline.
(Compl. at 1 & accompanying exhibits; Opp. at 2–3).
Even if illness were sufficient in some circumstances to
justify the application of equitable tolling, Plaintiff has not
established that this is such a case. See Wong v. Bowen,
854 F.2d 630, 631 (2d Cir.1988) (“Allowing disability
claimants who have been denied benefits to toll the sixtyday period on grounds of poor health would thoroughly
undermine Section 205(g)'s sixty-day limitation period.”);
Bender v. Astrue, No. 09–cv–5738, 2010 U.S. Dist. LEXIS
86219, at *13, 2010 WL 3394264 (E.D.N.Y. Aug. 23, 2010)
(“Although tolling on the basis of illness requires a casespecific inquiry, poor health is generally not grounds for
equitable tolling under 42 U.S.C. § 405(g)....”); Liranzo
v. Astrue, 07–cv–5074, 2010 U .S. Dist. LEXIS 15840,
at *10–11, 2010 WL 626791 (E.D.N.Y. Feb. 19, 2010);
Davila v. Barnhart, 02 CIV. 194, 2002 U.S. Dist. LEXIS
5260, at *6–7 (S.D.N .Y.2002).
*3 Likewise, as to Plaintiff's alleged identity theft and
change of address, the Court agrees with Magistrate
Judge Cott that the record does not demonstrate that any
identity theft or change of address precluded him from
complying with the statutory deadline. Even taking at face
value Plaintiff's claims that these events occurred, they do
not appear to be the sort of extraordinary circumstances
justifying equitable tolling. See, e.g., Boos v. Runyon, 201
F.3d 178, 185 (2d Cir.2000) (“[Plaintiff's] conclusory and
vague claim, without a particularized description of how
her condition adversely affected her capacity to function
generally or in relationship to the pursuit of her rights,
is manifestly insufficient to justify any further inquiry
into tolling.”); Bender, No. 09–cv–5738, 2010 U.S. Dist.
LEXIS 86219, at *14–15, 2010 WL 3394264 (health issues
and computer malfunctions did not rise to the level of
extraordinary circumstances); Liranzo, 07–cv–5074, 2010
U.S. Dist. LEXIS 15840, at *10–11, 2010 WL 626791
(failure to check mail often enough, possibility that mail
was stolen, and health issues did not warrant equitable
tolling).
The Court denies Plaintiff's objections to the Report and
Recommendation and adopts it in full. The motion to
dismiss is GRANTED. The Court certifies, pursuant to 28
U.S.C. § 1915(a)(3), that any appeal from its order would
not be taken in good faith and, therefore, that in forma

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Courtney v. Colvin, Not Reported in F.Supp.3d (2014)

pauperis status is denied for the purpose of an appeal. See
Coppedge v. United States, 369 U.S. 438, 444–45, 82 S.Ct.
917, 8 L.Ed.2d 21 (1962).

End of Document

All Citations
Not Reported in F.Supp.3d, 2014 WL 129051

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3

Borrero v. Colvin, Not Reported in F.Supp.3d (2015)

2015 WL 1262276
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Miguel A. BORRERO, Plaintiff,
v.
Carolyn W. COLVIN, Acting Commissioner
of Social Security, Defendant.
No. 14CV5304–LTS–SN.
|
Signed March 19, 2015.

MEMORANDUM ORDER ADOPTING
REPORT AND RECOMMENDATION

court will only review the magistrate's report for clear
error. Camardo v. Gen. Motors Hourly–Rate Employees
Pension Plan. 806 F.Supp. 380, 382 (W.D.N.Y .1992);
Orix Financial Services, Inc. v. Thunder Ridge Energy, Inc.,
No. 01CV4788, 2006 WL 587483, at *1 (S.D.N.Y. March
8, 2006).
Plaintiff's objection merely reiterates his account of his
diligent pursuit of his rights, which he believes caused him
to initiate this action after the time to file had lapsed. This
argument was considered and rejected in the Report and,
therefore, the Court reviews the Report for clear error.
Having reviewed Magistrate Judge Netburn's thorough
and well-reasoned Report, the Court finds no clear error.
Therefore, the Court adopts the Report in its entirety.
Accordingly, the Court grants the Commissioner's
motion. The Clerk of Court is respectfully requested to
enter judgment and close this case.

LAURA TAYLOR SWAIN, District Judge.
*1 Pro se Miguel A. Borrero (“Plaintiff”), brings
this action, pursuant to Section 205(g) of the Social
Security Act (the “Act”), 42 U.S.C. section 405(g), seeking
judicial review of the final determination of the Acting
Commissioner of Social Security (the “Commissioner”)
denying his application for Social Security Disability
Benefits. The Commissioner moved for to dismiss
pursuant to Rule 12(b(6) of the of the Federal Rules of
Civil Procedure, arguing that Plaintiff's claims are timebarred by Section 205(g), which sets a sixty-day limit
for a claimant to file a civil action seeking review of
the Commissioner's decision. See 42 U.S.C. § 405(g).
Before the Court is the Report and Recommendation
(the “Report”) of Magistrate Judge Sarah Netburn,
recommending that the Commissioner's motion be denied.
Plaintiff filed a timely objection to the Report.
When reviewing a report and recommendation, the Court
“may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate.” 28
U.S.C.S. § 636(b)(1) (C) (LexisNexis 2012). If the a party
raises specific objections to the magistrate's findings, the
Court must subject the issues raised by these objections to
de novo review. United States v. Male Juvenile, 121 F.3d
34, 38 (2d Cir.1997); Richards v. Calvet, No. 99CV12172,
2005 WL 743251, at *2 (S.D.N.Y. Mar. 31, 2005). When
a party makes only conclusory or general objections,
or simply reiterates original arguments, however, the

This Order resolves docket entry no. 10.
SO ORDERED.

REPORT AND RECOMMENDATION
SARAH NETBURN, United States Magistrate Judge.
TO THE HONORABLE LAURA T. SWAIN:
Pro se plaintiff Miguel Borrero brings this action pursuant
to Section 205(g) of the Social Security Act (the “Act”),
42 U.S.C. § 405(g), seeking judicial review of the final
determination of the Commissioner of Social Security
(the “Commissioner”) denying his application for Social
Security Disability Insurance Benefits (“DIBs”). The
Commissioner filed a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6), arguing that
Borrero's claims are time-barred by Section 205(g), which
sets a sixty-day limit for a claimant to file a civil action
seeking judicial review of the Commissioner's decision. 42
U.S.C. § 405(g).
*2 It is undisputed that Borrero's claim was not
timely filed. Because Borrero may have been pursuing
his rights diligently but has not demonstrated that
some extraordinary circumstances stood in his way, I
recommend that the Commissioner's motion to dismiss be

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1

Borrero v. Colvin, Not Reported in F.Supp.3d (2015)

GRANTED, and that Borrero's claim be dismissed with
prejudice.
DISCUSSION
PROCEDURAL BACKGROUND
On October 1, 2002, Borrero filed an application for
DIBs. (ECF No. 1–4 (ALJ Decision–Unfavorable).) On
August 27, 2004, the administrative law judge (“ALJ”)
found Borrero disabled under the Act as of September
26, 2002, and disability payments commenced thereafter.
Id. In December 2010, the Commissioner initiated a
continuing disability review. Id. After numerous hearings
and determinations, the ALJ issued a final decision, on
July 5, 2013, finding that Borrero's disability had ended
pursuant to Section 223(f) of the Act. Id Borrero sought
review of the decision by the Appeals Council, and on
April 25, 2014, the Appeals Council sent a notice to
Borrero denying his request. (ECF No. 1–5 (Notice of
Appeals Council Action).) The notice informed Borrero
that he had a right to commence a civil action within 60
days of receipt of the notice, which would make June 30,
2014 the last day to file a timely complaint. (See ECF No.
1–6; infra note 1.) Borrero's complaint was filed with the
Court's Pro Se Office on July 9, 2014.
On December 1, 2014, the Commissioner filed a motion
to dismiss or, in the alternative, for summary judgment,
with supporting memorandum of law, declaration, and
Rule 56.1 statement, arguing that Borrero's claims are
time-barred by Section 205(g) of the Act. (ECF Nos.
10–13.) On January 8, 2015, the Court issued an Order
to Show Cause, directing Borrero to file a declaration
providing whatever information he had to support the
argument that he had “been pursuing his rights diligently”
and that “some extraordinary circumstances stood in his
way” such that the Court should toll the time period
for filing his complaint. (ECF No. 15 (citing Torres v.
Barnhart, 417 F.3d 276, 279 (2d Cir.2005).) On February
11, 2015, Borrero filed a letter with the Court. (ECF
No. 16.) Borrero explained that he had been waiting for
the National Association of Disability Representatives
(“NADR”) to appoint him a lawyer. (Id.) On April 25,
2014, he went to the Social Security Office in Monticello,
New York to request an extension and learned that
NADR only handles state, not federal, disability claims.
(Id.) He was given contact information for the Southern
District of New York, contacted the District Court, and
thereafter sent his claim to the Pro Se Office. (Id.)

I. Standard of Review
Judicial review of cases arising under Title II of the Act
is provided for, and expressly limited by, Sections 205(g)
and (h) of the Act. 42 U.S.C. §§ 405(g), (h). Under these
provisions, a plaintiff must present her claims in the
district court within 60 days after the mailing of the notice
of a final decision, or within such further time as the
Commissioner may allow. 42 U.S.C. § 405(g). “Because
the 60–day time limit defines the terms on which the
United States waives its sovereign immunity and consents
to be sued, it is strictly construed.” Davila v. Barnhart, 225
F.Supp.2d 337, 338 (S.D.N.Y.2002) (citing Bowen v. City
of New York, 476 U .S. 467, 479 (1986); Randell v. United
States, 64 F.3d 101, 106 (2d Cir.1995)).
*3 The “60–day requirement is not jurisdictional,
but rather constitutes a period of limitations.” Bowen,
476 U.S. at 478 (citations omitted). And because the
expiration of the statute of limitations is an affirmative
defense, it is best asserted under Rule 12(b)(6). Rodriguez
ex rel. J.J.T. v. Astrue, 10 Civ. 9644(PAC)(JLC), 2011 WL
7121291, at *2 (S.D.N.Y. July 25, 2011) (“[A] motion to
dismiss on statute of limitations grounds ... ‘generally is
treated as a motion to dismiss for failure to state a claim
upon which relief can be granted pursuant to Rule 12(b)
(6), as opposed to under Rule 12(b)(1).’ “ (quoting Nghiem
v. U.S. Dep't of Veterans Affairs, 451 F.Supp.2d 599, 603
(S.D.N.Y.2006), aff'd, 323 F. App'x 16 (2d Cir.2009))).
In deciding a 12(b)(6) motion, the Court “must accept
all factual allegations in the complaint as true and
draw inferences from those allegations in the light most
favorable to the plaintiff.” Jaghory v. New York State
Dep't of Educ., 131 F.3d 326, 329 (2d Cir.1997) (citing
cases).

II. Timeliness of Filing
Section 205(g) of the Act provides that:
Any individual, after any final
decision of the Commissioner of
Social Security made after a hearing
to which he was a party, irrespective
of the amount in controversy, may
obtain a review of such decision

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Borrero v. Colvin, Not Reported in F.Supp.3d (2015)

by a civil action commenced within
sixty days after the mailing to him of
notice of such decision or within such
further time as the Commissioner of
Social Security may allow.
42 U.S.C. § 405(g) (emphasis added). The “mailing” is the
date the individual receives the Appeals Council's notice
or decision, which is presumed to be five days after the
notice's date unless “there is a reasonable showing to
the contrary.” Matsibekker v. Heckler, 738 F.2d 79, 81
(2d Cir.1984) (citing 20 C.F.R. § 422.210(c)); Marquez
v. Comm'r of Soc. Sec'y, 12 Civ. 8151(PAE) (SN), 2013
WL 3344320, at *3 (S.D.N.Y. July 2, 2013) (citing same);
Bender v. Astrue, 09 Civ. 5738(KAM), 2010 WL 3394264,
at *3 (E.D .N.Y. Aug. 23, 2010) (citing 20 C.F.R. §§
404.981, 422.210(c)).
Failure to file a complaint within the statutory limitation
most often requires dismissal of the case, even where
the delay is minor and the plaintiff is pro se. See, e.g.,
Twumwaa v. Colvin, 13 Civ. 5858(AT)(JLC), 2014 WL
1928381, at *3–4 (S.D.N.Y. May 14, 2014) (dismissing
pro se complaint filed seven days late); Courtney v.
Colvin, 13 Civ. 2884(AJN)(SN), 2014 WL 129051, at *2
(S.D.N.Y. Jan. 14, 2014) (four days late); Rodriguez ex
rel. J.J.T., 2012 WL 292382, at *2 (three weeks late);
Johnson v. Comm'r of Soc. Sec'y, 519 F.Supp.2d 448, 449
(S.D.N.Y.2007) (nine days late); Monje v. Shalala, 93 Civ.
4707(MBM), 1995 WL 540028, at *1, 3 (S.D.N.Y. Sept.
4, 1995) (six days late), aff'd, 112 F.3d 504 (2d Cir.1996);
Smith v. Comm'r of Soc. Sec'y, 08 Civ. 1547(NGG), 2010
WL 5441669, at *1 (E.D.N.Y. Dec. 23, 2010) (four days
late).
*4 Here, the ALJ denied Borrero's claim for DIBs on
July 5, 2013. On April 25, 2014, the Appeals Council sent
a notice to Borrero denying his request to review the ALJ's
decision. Therefore, Borrero is presumed to have received
the notice five days after the notice's April 25, 2014 date,
or by April 30, 2014. As a result, the last day to file a
timely complaint was 60 days later, or by Monday, June
30, 2014. 1 Borrero, however, submitted his complaint to
the Pro Se Office for the Southern District of New York
nine days after the statutory deadline, or July 9, 2014, and
did not provide reasons for the delay. Nor did Borrero
request from the Commissioner “further time” in which
to file his action. See 42 U.S.C. § 405(g). As a result, his
complaint is untimely.

1

The sixtieth day after April 30, 2014 was Sunday, June
29, 2014. Therefore, plaintiff had until that Monday,
June 30, 2014, to file his complaint. See Fed.R.Civ.P.
6(a)(3)(A).

III. Equitable Tolling
The doctrine of equitable tolling may excuse a failure
to file a complaint on time. “[C]ases may arise where
the equities in favor of tolling the limitations period
are ‘so great that deference to the agency's judgment
is inappropriate.’ “ Bowen, 476 U.S. at 480 (quoting
Mathews v. Eldridge, 424 U.S. 319, 329 (1976)). To
obtain the benefit of equitable tolling, a claimant must
show that although “he has been pursuing his rights
diligently ... some extraordinary circumstance stood in
his way.” Torres, 417 F.3d at 276, 279 (finding that the
district court abused its discretion by not holding an
evidentiary hearing where a pro se plaintiff reasonably
believed that an attorney would assist him in filing a
complaint, and upon notification that it had not been
filed, he immediately contacted the court to submit a
sworn affidavit explaining the delay (quoting Pace v.
DiGuglielmo, 544 U.S. 408, 418 (2005)); Dixon v. Shalala,
54 F.3d 1019, 1033 (2d Cir.1995) (finding equitable tolling
appropriate even where “the party against whom it is
asserted has [not] engaged in some egregious affirmative
misconduct”); Canales v. Sullivan, 936 F.2d 755, 759 (2d
Cir.1991), on reh'g 947 F.2d 45 (finding equitable tolling
appropriate where the claimant was incapacitated due to
a mental impairment). The claimant bears the “burden of
demonstrating the appropriateness of equitable tolling.”
Boos v. Runyon, 201 F.3d 178, 185 (2d Cir.2000).
Equitable tolling has been deemed appropriate, however,
only in the “rare case.” Bowen, 476 U.S. at 481. See,
e.g., Wong v. Bowen, 854 F.2d 630, 631 (2d Cir.1988)
(declining to toll the deadline due to claimant's assertion
of poor health); Twumwaa, 2014 WL 1928381, at *4
(declining to toll the deadline where the claimant stated
only that she was “stressed,” “in pain,” and “gave the
motion to [her] former attorney to respond”); Marquez,
2013 WL 3344320, at *5 (declining to toll the deadline
where claimant did “not allege a misunderstanding or
incapacity ... nor ... any diligence”); Guinyard v. Apfel,
99 Civ. 4242(MBM), 2000 WL 297165, at *3 (S.D.N.Y.
March 22, 2000) (declining to toll the deadline where
claimant failed to “present some affirmative evidence
indicating that the actual receipt [of the Notice of Appeals

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3

Borrero v. Colvin, Not Reported in F.Supp.3d (2015)

decision] occurred more than five days after issuance” or
that she was incapacitated by mental impairment during
the statutory time period); Bender, 2010 WL 3394264,
at *4 (declining to toll the deadline due to alleged
medical ailments). This is because reopening a petitioner's
“claim would frustrate the congressional purpose, plainly
evidenced in [Section] 205(g), to impose a 60–day
limitation upon judicial review of the [Commissioner's]
final decision.” Califano v. Sanders, 430 U.S. 99,
108(1977).
*5 Reviewing Borrero's complaint and February 11,
2015 letter in the light most favorable to him, Borrero
may have been pursuing his rights diligently, but he has
not demonstrated that some extraordinary circumstances
stood in his way to prevent his timely filing. Although
Borrero's correspondence is not entirely clear, some of
the evidence suggests that Borrero pursued his rights
diligently: he sought a lawyer from NADR and appears
to have gone to the Monticello Social Security Office
(the “Monticello Office”) to seek an extension when he
was concerned about filing within the 60–day deadline.
Other evidence, however, suggests that he was less than
diligent. (See ECF No. 16.) He indicates that he went
to the Monticello Office to seek the extension on April
25, 2014, the same day that the Appeals Council's denial
notice is dated. (Compare ECF No. 1–5 (Notice of Appeals
Council Action) with ECF No. 16 (Borrero letter).)
Because the 60–day clock began to run five days after
April 25, 2014, Borrero would not yet have needed the
extension on that date. Even assuming he went to the
Monticello Office on or about April 25, 2014 and learned
that NADR does not assist with federal disability claims,
he did not file his complaint immediately thereafter but
waited over two months, or until July 9, 2014, to do so
—at which point he had missed the statutory deadline.
Regardless of these discrepancies, however, the Court
need not determine whether he satisfies the diligence prong
for tolling because Borrero's justification falls short of
satisfying the second prong required to warrant tolling:
“extraordinary circumstances.” Torres, 417 F.3d at 278.
Borrero's reliance on NADR to appoint him a lawyer
in a timely fashion does not rise to the level
of misunderstanding that other courts have deemed
extraordinary. (ECF No. 16). See, e.g., Torres, 417 F.3d
at 277–78; Hernandez v. Sullivan, 91 Civ. 1836(LBS),
1991 WL 243451 (S.D.N.Y. Nov. 8, 1991). In Torres
v. Barnhart, for example, the pro se plaintiff presented

communications between himself and an attorney
who had affirmatively, and in writing, agreed to
represent him in his appeal. 417 F.3d at 277–78. The
lawyer sent the plaintiff a letter giving him various
instructions, and enclosing a Social Security Appointment
of Representative and Appointment of Representative
forms, both of which the plaintiff signed and sent back to
the lawyer. Id. Upon learning that the lawyer never filed
his appeal with the district court, the plaintiff immediately
wrote to the Pro Se Office and attached a notarized
statement explaining his failure to file his appeal timely.
Id. Similarly, in Hernandez v. Sullivan, the court held
that equitable tolling was appropriate where the plaintiff
relied on the written legal advice of his attorney, but
that advice informed him of an incorrect filing deadline.
1991 WL 243451. See also Reape v. Colvin, 13 Civ.
1426(GTS)(CFH), 2015 WL 275865, at *4 (N.D.N.Y.
Jan. 22, 2015) (discussing Torres and Hernandez and
holding that the plaintiff's allegations that his attorney
provided “bad advice” and “multiple individuals” at the
Social Security Office told him he was within the time
limits were “conclusory and vague,” and thus, insufficient
to demonstrate extraordinary circumstances to warrant
tolling). In both Torres and Hernandez, “extraordinary
circumstances” were demonstrated where the pro se
plaintiffs were represented and relied on their attorney's
affirmative (mis)advice. Here, Borrero had not engaged an
attorney and did not affirmatively rely on the advice of an
attorney in missing the deadline.
*6 Nor was Borrero mentally, or otherwise,
incapacitated, which could demonstrate “extraordinary
circumstances.” Cf. Canales, 936 F.2d 755. See Boos,
201 F.3d at 185 (“[Plaintiff's] conclusory and vague
claim, without a particularized description of how her
condition adversely affected her capacity to function
generally or in relationship to the pursuit of her rights,
is manifestly insufficient to justify any further inquiry
into tolling.”). Indeed, Borrero's compliance with the
statute of limitations at earlier stages of the appeals
process—namely his request to the Appeals Council
—“indicates that he was accustomed to operating under
time constraints and capable of doing so, even when acting
pro se.” Monje, 1995 WL 540028, at *3. Demonstrating
“extraordinary circumstances” is a difficult standard to
satisfy, and Borrero has not met it. Borrero's failure to
file his complaint within the statutory period warrants
dismissal.

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4

Borrero v. Colvin, Not Reported in F.Supp.3d (2015)

CONCLUSION
Because Borrero has not demonstrated that, regardless
of whether he pursued his rights diligently, some
extraordinary circumstances stood in his way, I
recommend that the Commissioner's motion to dismiss be
GRANTED, and that Borrero's claim be dismissed with
prejudice.

***
NOTICE OF PROCEDURE FOR
FILING OBJECTIONS TO THIS
REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service
of this Report and Recommendation to file written
objections pursuant to 28 U.S.C. § 636(b)(1) and Rule
72(b) of the Federal Rules of Civil Procedure. See also
Fed.R.Civ.P. 6(a), (d) (adding three additional days when

service is made under Fed.R.Civ.P. 5(b)(2) (C), (D), (E),
or (F)). A party may respond to another party's objections
within fourteen days after being served with a copy.
Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with
the Clerk of the Court, with courtesy copies delivered to
the chambers of the Honorable Laura T. Swain at the
United States Courthouse, 500 Pearl Street, New York,
New York 10007, and to any opposing parties. See 28
U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any
requests for an extension of time for filing objections
must be addressed to Judge Swain. The failure to file
these timely objections will result in a waiver of those
objections for purposes of appeal. See 28 U.S.C. § 636(b)
(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S.
140 (1985).

SO ORDERED.
Filed Feb. 25, 2015.
All Citations
Not Reported in F.Supp.3d, 2015 WL 1262276

End of Document

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5

Jones v. Commissioner of Social Security, Slip Copy (2015)

2015 WL 10641784
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Jimmy M. Jones, Plaintiff,
v.
Commissioner of Social Security, Defendant.
13cv7379-RA-FM
|
Signed August 6, 2015

REPORT AND RECOMMENDATION TO
THE HONORABLE RONNIE ABRAMS
FRANK MAAS, United States Magistrate Judge
*1 Pro se plaintiff Jimmy M. Jones (“Jones”) brings
this action pursuant to Section 205(g) of the Social
Security Act (“Act”), as amended, 42 U.S.C. § 405(g),
seeking review of a final decision of the Commissioner
(“Commissioner”) of the Social Security Administration
(“SSA”) denying his application for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income
(“SSI”). The Commissioner has moved to dismiss this
action as untimely pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. (ECF No. 14). That
motion is unopposed. For that reason, as well as
the reasons set forth below, I recommend that the
Commissioner's motion be granted.

I. Background
On August 14, 2007, Jones filed applications for DIB
and SSI, claiming that he was disabled as of June 13,
2007. (See ECF No. 2 (“Complaint” or “Compl.”) at 12).
After the Commissioner denied both applications initially
on January 31, 2008, (Compl. Ex. A at 29–46), Jones
requested a de novo hearing before an Administrative Law
Judge (“ALJ”) on April 18, 2008, (id. at 25–27), which was
held before ALJ Robin Arzt on February 9, 2009, (see id.
at 9). Thereafter, on February 12, 2009, ALJ Arzt issued
a written decision in which she concluded that Jones was
not disabled within the meaning of the Act. (Id. at 9–21).
On April 17, 2009, Jones appealed ALJ Arzt's decision
to the Appeals Council. (Compl. at 53–54). This appeal

was not timely filed within the required sixty-day period,
(see 20 C.F.R. §§ 404.968(a)(1), 416.1468(a)), because
Jones had encountered difficulty retrieving the notice
of the ALJ's adverse decision from the location where
it was mailed, (Compl. at 51–52). Finding good cause
for the delay, the Appeals Council reached the merits
of Jones' appeal, and remanded the case for further
administrative proceedings with respect to Jones' alleged
mental impairments. (Id. at 4950).
On October 6, 2011, a new hearing was held before ALJ
Gitel Reich. On December, 19, 2011, after considering
Jones' alleged mental impairments, ALJ Reich issued a
written decision which also concluded that Jones was not
disabled within the meaning of the Act. (Id. at 40–47). On
February 23, 2012, Jones again filed an untimely appeal
of the ALJ's decision. (Id. at 32–33, 34–37). On August
24, 2012, the Appeals Council again found good cause for
Jones' delay and remanded his case for further findings
“regarding the extent to which [his] limitations erode[d]
the occupational base for light work.” (Id. at 32).
After yet another hearing, during which a vocational
expert testified, ALJ Reich issued a written decision, dated
March 13, 2013, finding that Jones was not disabled.
(Id. at 12–21). This time, the Appeals Council denied
Jones' request for review. (Id. at 4–6). Jones alleges that
he received notice of the Appeals Council's decision on
August 13, 2013. (Id. at 2).
On October 17, 2013, Jones commenced this action
challenging the Commissioner's determination that he was
not disabled within the meaning of the Act. (ECF No. 2).
On October 22, 2013, Your Honor issued a Scheduling
Order and referred this matter to me for a Report and
Recommendation. (ECF No. 9). On June 30, 2014, the
Commissioner filed and served a motion to dismiss Jones'
complaint as untimely pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure. (ECF No. 14). Pursuant
to the Scheduling Order, Jones' opposition papers were
due by July 30, 2014. (ECF No. 9) (“Opposition to any
motion shall be filed within thirty days from service of the
motion.”). On September 10, 2014, more than one month
after his opposition was due, Jones requested more time
to respond to the Commissioner's motion (referred to in
his letter as the “opposition”). (ECF No. 16). In light of
Jones' pro se status, I extended the deadline for Jones to
file opposition papers to October 8, 2014. (ECF No. 17).
In doing so, however, I noted that Jones had not “provide

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1

Jones v. Commissioner of Social Security, Slip Copy (2015)

[d an] explanation or excuse for his delay,” and cautioned
that no further extensions would be granted. (Id.). To
date, the Court has not received any further paperwork
from Jones. The Commissioner's motion consequently is
unopposed. 1
1

I should note that my Chambers received a call
from a Legal Aid Society attorney on October 6,
2014. The attorney inquired whether the deadline for
Jones to file papers could be extended since he was
hospitalized. My law clerk responded that I would
grant an extension of the October 8 deadline if counsel
entered an appearance on Jones behalf. No such
appearance took place.

II. Discussion
A. Applicable Law
1. Standard of Review
*2 A Rule 12(b)(6) motion to dismiss for failure to state
a claim “tests the legal sufficiency of [a] plaintiff's claim
for relief.” Krasner v. HSH Nordbank AG, 680 F.Supp.2d
502, 511 (S.D.N.Y.2010). In deciding the motion, the
Court must accept as true all factual allegations made in
a complaint and draw all reasonable inferences in favor
of the plaintiff. Allaire Corp. v. Okumus, 433 F.3d 248,
249–50 (2d Cir.2006). “Where the dates in a complaint
show that an action is barred by a statute of limitations,
a defendant may raise the affirmative defense in a preanswer motion to dismiss.” Ghartey v. St. John's Queens
Hosp., 869 F.2d 160, 162 (2d Cir.1989); see Nghiem v.
U.S. Dep't of Veterans Affairs, 451 F.Supp.2d 599, 602
(S.D.N.Y.2006), aff'd, 323 F. App'x 16 (2d Cir. Mar. 31,
2009) (collecting cases).

2. Statute of Limitations and Equitable Tolling
Section 205(g) of the Act provides that an individual may
obtain review of a final decision of the Commisioner
“by a civil action commenced within sixty days after
the mailing to him of notice of such decision or within
such further time as the Commissioner of Social Security
may allow.” 42 U.S.C. § 405(g). Under the applicable
regulation, a claimant is presumed to have received such
notice within “[five] days after the date of such notice,
unless there is a reasonable showing to the contrary.”

20 C.F.R. § 422.210(c). Accordingly, absent an extension
by the Appeals Council predicated “upon a showing of
good cause,” id., a claimant has sixty-five days from the
date of the Commissioner's final decision to commence a
timely action for review of that decision. See Matsibekker
v. Heckler, 738 F.2d 79, 80–81 (2d Cir.1984); Smith v.
Comm'r of Soc. Sec., No. 08–CV–1547 (NGG), 2010 WL
5441669, at *1 (E.D.N.Y. Dec. 23, 2010).
Notwithstanding this sixty-five day window, in certain
“rare and exceptional circumstances,” Zerilli–Edelglass
v. New York City Transit Auth., 333 F.3d 74, 80 (2d
Cir.2003) (quoting Smith v. McGinnis, 208 F.3d 13, 17
(2d Cir.2000)) (alterations omitted), equitable tolling of
the statute of limitations is appropriate upon a litigant's
showing “that he has been pursuing his rights diligently”
and “that some extraordinary circumstance” prevented
him from timely filing his lawsuit. Pace v. DiGuglielmo,
544 U.S. 408, 418 (2005). Although equitable tolling may
be appropriate when a claimant's medical condition or
mental impairment prevents him from initiating suit in
a timely manner, Zerilli–Edelglass, 333 F.3d at 80, the
claimant must proffer a “particularized description of
how h[is] condition adversely affected h[is] capacity to
function generally or in relationship to the pursuit of h[is]
rights.” Boos v. Runyon, 201 F.3d 178, 185 (2d Cir.2000);
see Johnson v. Astrue, No. 12–CV–2736 (SLT), 2014 WL
2624904, at *2 (E.D.N.Y. June 12, 2014) (“Illness and
poor health do not typically rise to the standard of an
extraordinary circumstance in the context of a social
security claim.”) (collecting cases).

3. Application of Law to Facts
Jones' Complaint is clearly untimely. On August 8, 2013,
the Appeals Council denied Jones' request to review ALJ
Reich's determination that he was not disabled. (Compl.
at 2, 4–6). The Appeals Council advised Jones of his right
to seek judicial review of the adverse decision in federal
court and the appropriate time frame in which to do so.
(Id. at 5). Specifically, the notice from the Appeals Council
instructed:
You have 60 days to file a civil action (ask for court
review).
*3 The 60 days start the day after you receive this
letter. We assume you received this letter 5 days after the

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2

Jones v. Commissioner of Social Security, Slip Copy (2015)

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.
(Id. at 5).
Given the five-day grace period for mailed notices, the 65–
day period during which Jones had to file his suit expired
on October 13, 2013. 2 Jones, however, first commenced
this action on October 17, 2013 – five days after the
deadline. (ECF No. 2). Accordingly, absent evidence that
Jones obtained an extension of time from the Appeals
Council – and there is none – his lawsuit is untimely.
Indeed, even if the Court were to assume that Jones
first received notice of the Appeals Council's decision on
August 15, 2013, as alleged in his Complaint, (see Compl.
at 2), this lawsuit still would be untimely because it then
would have had to have been filed by October 15, 2013 –
two days before the actual filing date. 3
2
3

Because October 13, 2013, was a Sunday, Jones had
until the following day to file his complaint.
In that circumstance, of course, the five-day extension
of time to allow for a claimant's receipt of the decision
would be inapplicable. See 20 C.F.R. § 422.210(c).

Notwithstanding the short statute of limitations set forth
in the Act, there are circumstances in which a claimant
may be entitled to equitable tolling. See Bowen v. City of
New York, 476 U.S. 467, 480–82 (1986). For this reason,
I also have considered whether the doctrine is applicable
here. See Rodriquez v. Barnhart, No. 01 Cv. 3411, 2002
WL 31875406, at *3 (S.D.N.Y. Dec. 24, 2002) (“[E]ven
though [claimant] does not herself raise the equitabletolling issue, we are obliged to consider it for her since it
presents the strongest argument that her pleadings could
be read to suggest.”). Although it appears that Jones has
multiple severe impairments, including HIV, depression,
and anxiety, (Compl. at 14), there is no evidence to suggest
that these impairments impacted his capacity to such
a degree as to render him unable to comply with the
Act's requirements. See DeJesus v. Comm'r of Soc. Sec.,
No. 13–cv–7913 (HBP)(AJN), 2015 WL 3555787, at *1
(S.D.N.Y. June 8, 2015) (quoting Kesoglides v. Comm'r

of Soc. Sec., No. 13–CV–4724 (PKC), 2015 WL 1439862,
at *4 (E.D.N.Y. Mar. 27, 2015)) (“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 [his] condition
adversely affected [his] capacity to function generally or
in relationship to the pursuit of [his] rights.”) (internal
quotation marks omitted); Johnson, 2014 WL 2624904, at
*2 (despite evidence of multiple medical conditions, “there
is nothing in the record ... to suggest an extraordinary
or peculiar circumstance that would have prevented
[claimant] from filing by the [applicable] deadline.”).
Indeed, throughout the administrative process, Jones was
continuously able to advocate effectively for himself,
convincing the Appeals Council on two occasions to
remand his case to the ALJ for further proceedings.
*4 In sum, Jones' complaint is untimely and should
be dismissed. See Johnson, 2014 WL 2624904, at *2
(dismissing complaint filed eight days after deadline);
Johnson v. Comm'r of Soc. Sec., 519 F.Supp.2d 448,
449 (S.D.N.Y.2007) (dismissing complaint filed nine days
after deadline); Davila v. Barnhart, 225 F.Supp.2d 337,
340 (S.D.N.Y.2002) (dismissing complaint filed one day
after deadline); see also Mohasco Corp. v. Silver, 447
U.S. 807, 826 (“[I]n 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.”).

III. Conclusion
For the foregoing reasons, the Commissioner's motion,
(ECF No. 14), should be granted.

IV. Notice of Procedure for Filing Objections to this
Report and Recommendation
The parties shall have fourteen (14) days from the service
of this Report and Recommendation to file written
objections pursuant to 28 U.S.C. § 636(b)(1) and Rule
72(b) of the Federal Rules of Civil Procedure. See also
Fed.R.Civ.P. 6(a) and (d). Any such objections shall be
filed with the Clerk of the Court, with courtesy copies
delivered to the chambers of the Honorable Ronnie
Abrams and to my chambers at the United States
Courthouse, 500 Pearl Street, New York, N.Y. 10007,
and to any opposing parties. See 28 U.S.C. § 636(b)
(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an
extension of time for filing objections must be directed to

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3

Jones v. Commissioner of Social Security, Slip Copy (2015)

Judge Abrams. The failure to file these timely objections
will result in a waiver of those objections for purposes of
appeal. See Thomas v. Arn, 474 U.S. 140 (1985); 28 U.S.C.
§ 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b).
End of Document

All Citations
Slip Copy, 2015 WL 10641784
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4

Jones v. Commissioner of Social Security, Slip Copy (2016)

2016 WL 1446223
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Jimmy M. Jones, Plaintiff,
v.
Commissioner of Social Security, Defendant.
No. 13-CV-7379(RA)
|
Signed 04/11/2016

ORDER
RONNIE ABRAMS, United States District Judge

the magistrate judge.” 28 U.S.C. § 636(b)(1). Parties
may object to a magistrate judge's recommended findings
“[w]ithin 14 days after being served with a copy of
the recommended disposition.” Fed. R. Civ. P. 72(b)(2).
“When the parties make no objections to the Report,
the Court may adopt the Report if 'there is no clear
error on the face of the record.”' Smith v. Corizon Health
Services, No. 14-CV-8839 (GBD), 2015 WL 6123563, at
*1 (S.D.N.Y. Oct. 16, 2015) (quoting Adee Motor Cars,
LLC v. Amato, 388 F. Supp. 2d 250, 253 (S.D.N.Y. 2005)).
“Furthermore, if as here ... the magistrate judge's report
states that failure to object will preclude appellate review
and no objection is made within the allotted time, then
the failure to object generally operates as a waiver of the
right to appellate review. As long as adequate notice is
provided, the rule also applies to pro se parties.” Hamilton
v. Mount Sinai Hosp., 331 F. App'x 874. 875 (2d Cir. 2009)
(internal citations omitted).

*1 On October 17, 2013, Plaintiff Jimmy M. Jones,
who is proceeding pro se, filed a complaint appealing
the decision of the Commissioner of Social Security to
deny her application for a period of disability insurance
and supplemental security income benefits. The case was
referred to Magistrate Judge Frank Maas for a report
and recommendation. On August 6, 2015, Judge Maas
issued a report and recommendation (the “Report”)
recommending that the Commissioner's motion to dismiss
be granted. Neither party filed objections to the Report.

As no objections to the Report were filed, the Court has
reviewed Judge Maas's well-reasoned Report for clear
error. After careful review of the record, the Court finds
none and thus adopts the Report in its entirety. It is
therefore ordered that the Commissioner's motion to
dismiss is granted. The Clerk of Court is respectfully
directed to close this case.

A district court “may accept, reject, or modify, in whole
or in part, the findings or recommendations made by

All Citations

End of Document

SO ORDERED.

Slip Copy, 2016 WL 1446223
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1

Roberts v. Commissioner of Social Security, Slip Copy (2016)

2016 WL 303896
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Shaquanna Roberts, Plaintiff,
v.
Commissioner of Social Security, Defendant.
15 Civ. 6216 (CM)(AJP)
|
Signed January 26, 2016
Attorneys and Law Firms
Shaquanna Roberts, Bronx, NY, pro se.
Jeffrey Stuart Oestericher, Joseph Anthony Pantoja, New
York, NY, for Defendant.

REPORT & RECOMMENDATION
ANDREW J. PECK, United States Magistrate Judge
*1 Pro Se plaintiff Roberts filed her complaint on August
6, 2015, seeking review of the Commissioner of Social
Security's denial of benefits. (Dkt. No. 2: Compl.) The
complaint alleges that Roberts has learning problems
and schizoaffective bipolar disorder. (Compl. ¶ 4 & p. 7:
Dr. Vando letter.) Attached to Roberts' complaint is the
May 21, 2015 Appeals Council letter denying her claim.
(Compl. at pp. 4–6: 5/21/15 Appeals Council letter.) The
Appeals Council letter clearly stated that: “You have 60
days to file a civil action (ask for court review).” (Compl.
at p. 5.) On the last page of her complaint, Roberts wrote
that she “was told to count [business] days.” (Compl. at
p. 3.)
Presently before the Court is the Commissioner's Motion
to Dismiss or in the Alternative for Summary Judgment.
(Dkt. No. 13: Notice of Mot.) For the reasons stated
below, Roberts' filing is untimely, and the Court should
dismiss her case.

ANALYSIS

Any individual, after any final
decision of the Commissioner of
Social Security made after a hearing
to which he was a party, irrespective
of the amount in controversy, may
obtain a review of such decision
by a civil action commenced within
sixty days after the mailing to
him of notice of such decision or
within such further time as the
Commissioner of Social Security
may allow.
42 U.S.C. § 405(g) (emphasis added); see also 42 U.S.C.
§ 1383(c)(3). While this time-limit is not jurisdictional, it
does constitute a period of limitations. E.g., Bowen v. City
of N.Y., 476 U.S. 467, 478, 106 S.Ct. 2022, 2029 (1986);
Liranzo v. Comm'r of Soc. Sec., 411 F. App'x 390, 391
(2d Cir.2011); Velez v. Apfel, No. 99–6314, 229 F.3d 1136
(table), 2000 WL 1506193 at *2 (2d Cir. Oct. 6, 2000);
State of N.Y. v. Sullivan, 906 F.2d 910, 917 (2d Cir.1990);
Bartow v. Comm'r of Soc. Sec., 04 Civ. 3200, 2004 WL
1057783 at *1 (S.D.N.Y. May 12, 2004)(Peck, M.J.);
Schoon v. Massanari, 01 Civ. 2656, 2001 WL 1641241 at
*2 (S.D.N.Y. Dec. 21, 2001). Dismissal of such actions
brought after the sixty day period thus is appropriate.
See, e.g., Liranzo v. Comm'r of Soc. Sec., 411 F. App'x
at 391–92; Posilovich v. Apfel, No. 99–6338, 225 F.3d 646
(table), 2000 WL 964764 at *1 (2d Cir. July 12, 2000) (“The
district court properly dismissed the plaintiff's complaint
[against the Commissioner of Social Security] because it
was not filed within the time period required by law.”);
Kesoglides v. Comm'r of Soc. Sec., 13 Civ. 4724, 2015 WL
1439862 at *1 (E.D.N.Y. Mar. 27, 2015); Twumwaa v.
Colvin, 13 Civ. 5858, 2014 WL 1928381 at *3 (S.D.N.Y.
May 14, 2014)(citing cases); Courtney v. Colvin, 13 Civ.
2884, 2014 WL 129051 at *2 (S.D.N.Y. Jan. 14, 2014);
Pressley v. Astrue, 12 Civ. 8461, 2013 WL 3974094 at
*2–3, *5 (S.D.N.Y. Aug. 2, 2013); Davila v. Barnhart,
225 F.Supp.2d 337, 338, 340 (S.D.N.Y.2002); Schoon v.
Massanari, 2001 WL 1641241 at *2; Guinyard v. Apfel,
99 Civ. 4242, 2000 WL 297165 at *2 (S.D.N.Y. Mar. 22,
2000) (“[C]ourts have not hesitated to enforce the 60–day
period as a firm limit.”).
*2 In response to the Commissioner's motion, Roberts
stated that:

The Social Security Act provides that:

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1

Roberts v. Commissioner of Social Security, Slip Copy (2016)

I needed time to get a new doctor
and I read paper wrong[.] I ask[ed]
someone to help an[d] they told me
to [count] business days.
(Dkt. No. 19: Roberts letter at 1.) It appears from
her submission that the person who told her to count
business days was her sister. (Id. at 2: “my sis read the
paper.”) Roberts also attached an updated letter from
clinician Miguel Aviles of Dr. Vando's office, stating that
“Due to Ms. Roberts' mental instability and difficulty
comprehending she was unable to meet the deadline to
request an extension for the court review.” (Dkt. No. 19
at p. 3: Aviles 12/10/15 letter.)
“If a claimant alleges that incapacity due to mental
impairment during the 60–day limitations period impeded
her ability to seek judicial review in a timely manner, the
district court should afford the claimant the opportunity
to present evidence buttressing this claim.” Guinyard v.
Apfel, 2000 WL 297165 at *4 (citing Canales v. Sullivan,
936 F.3d 755, 759 (2d Cir.1991)). “However, a ‘conclusory
and vague claim, without a particularized description ...
is manifestly insufficient to justify any further inquiry
into tolling.’ ” Guinyard v. Apfel, 2000 WL 297165 at *4
(quoting Boos v. Runyon, 201 F.3d 178, 185 (2d Cir.2000)).
The excuses Roberts offered for filing late – that she
thought the 60 day deadline meant business days and that
she has mental problems (see above) – do not constitute
one of the “rare cases” that warrant equitable tolling. See,
e.g., DeJesus v. Comm'r of Soc. Sec., 13 Civ. 7913, 2015
WL 3555787 at *4 (S.D.N.Y. June 8, 2015) (“Plaintiff
alleges in her complaint that she suffers from an abscess in
her brain and depression. Plaintiff has attached a number
of medical records to her complaint, and although one of
the records mentions anxiety, none refer to a brain abscess
or depression. These vague references in the complaint
are simply insufficient to establish that plaintiff suffered
from any condition that was so disabling that it could
form the basis for an equitable toll.”); Chalasani v. Fran,
13 Civ. 06535, 2015 WL 2129773 at *8 (S.D.N.Y. Feb.
13, 2015) (“Although Chalsani claims she was unable to
read or understand court documents, she was nonetheless
able to file an EEOC complaint and three federal court
complaints, move for reconsideration and appeal that
denial to the Court of Appeals, and send multiple letters
to this Court, including objections to my previous Report
and Recommendation to dismiss her claims. While such

activity does not rise to the level of 'reasonable diligence,'
it is too much to suggest that she was completely unable
to act on her own behalf.”), R. & R. adopted, 2015 WL
2137707 (S.D.N.Y. May 6, 2015); Guinyard v. Apfel, 2000
WL 297165 at *2; Sykes v. Apfel, 97 Civ. 7696, 1998 WL
338104 at *4 (S.D.N.Y. June 24, 1998) (“According this
pro se plaintiff's complaint the close and careful reading to
which it is entitled, the plaintiff has failed to identify any
circumstance that would justify equitable tolling of the
statute of limitations in this case. Therefore the complaint
must be dismissed because it is time barred under the 60–
day statute of limitations in Section 405(g).”). Roberts
was able to timely seek a hearing before the ALJ, and
to timely file a request for Appeals Counsel review. (See
Dkt. No. 14: Nicoll Aff. ¶ 3(a)-(b) & exs. 1–4.) See, e.g.,
Borrero v. Colvin, No. 14 Civ. 5304, 2015 WL 1262276 at
*6 (S.D.N.Y. Mar. 19, 2015) (claimant's “compliance with
the statute of limitations at earlier stages of the appeals
process–namely his request to the Appeals Council–'
indicates that he was accustomed to operating under
time constraints and capable of doing so, even when
acting pro se.' ”), appeal dismissed, No. 15–1096 (May
22, 2015). The vague assertion in the letter from Roberts'
doctor that Roberts' manic mood “leads to distraction and
poor judgments” (Aviles 12/10/15 letter), is insufficient to
establish that Roberts' condition was so disabling as to
warrant an equitable toll. As the Court stated in Twumwaa
v. Colvin:
*3 The Second Circuit has made clear that illness
cannot serve as a basis to toll the statue of limitations,
observing that to “[a]llow disability claimants who have
been denied benefits to toll the sixty-day period on
grounds of poor health would thoroughly undermine
[the Social Security Act's] sixty-day limitation period.”
Wong v. Bowen, 854 F.2d 630, 631 (2d Cir.1988).
See also Courtney, 2014 WL 129051 at *2 (illness
insufficient basis for equitable tolling); Bender v. Astrue,
No. 09 Civ. 5738(KAM), 2010 WL 3394264, at *4
(E.D.N.Y. Aug. 23, 2010) (alleged medical ailments did
not constitute extraordinary circumstances justifying
equitable tolling). The record before the Court does not
support equitable tolling on this basis.
Twumwaa v. Colvin, 2014 WL 1928381 at *4. Rather, it
appears the real reason Roberts missed the deadline was
her sister telling her that she had sixty business days to file.
(See page 3 above.) There is no basis for equitable tolling.

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2

Roberts v. Commissioner of Social Security, Slip Copy (2016)

CONCLUSION
For the reasons set forth above, Roberts' claim should be
dismissed as time barred. (This does not preclude Roberts
from filing a new claim for SSI or DIB benefits for the
period after the ALJ's decision.)

FILING OF OBJECTIONS TO THIS
REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of
the Federal Rules of Civil Procedure, the parties shall
have fourteen (14) days from service of this Report to
file written objections. See also Fed.R.Civ.P. 6. Such
objections (and any responses to objections) shall be filed
with the Clerk of the Court, with courtesy copies delivered
to the chambers of the Honorable Colleen McMahon, 500
Pearl Street, Room 1640, and to my chambers, 500 Pearl

Street, Room 1370. Any requests for an extension of time
for filing objections must be directed to Judge McMahon
(with a courtesy copy to my chambers). Failure to file
objections will result in a waiver of those objections for
purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct.
466 (1985); Ingram v. Herrick, 475 F. App'x 793, 793 (2d
Cir.2012); IUE AFL–CIO Pension Fund v. Herrmann, 9
F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822,
115 S.Ct. 86 (1994); Frank v. Johnson, 968 F.2d 298, 300
(2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992);
Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16
(2d Cir.1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57–
59 (2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237–
38 (2d Cir.1983).
SO ORDERED.

All Citations
Slip Copy, 2016 WL 303896

End of Document

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3

DeJesus v. Commissioner of Social Sec., Not Reported in F.Supp.3d (2015)

2015 WL 3555787
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Michelle DeJESUS, Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY, Defendant.
No. 13–cv–7913 (AJN).
|
Signed June 8, 2015.

ORDER
ALISON J. NATHAN, District Judge.
*1 Before the Court is Judge Pitman's report and
recommendation (“R & R”) recommending that the
Court grant the Commissioner of Social Security's (the
“Commissioner”) motion to dismiss or, in the alternative,
for summary judgment, dismissing the case as untimely.
See Dkt. No. 13. When a magistrate judge issues findings
or recommendations, the district court “may accept,
reject, or modify [them] in whole or in part.” 28 U.S.C. §
636(b)(1). Plaintiff was required to submit any objections
to Judge Pitman's R & R by June 1, 2015. See Dkt. No.
18. As of June 8, 2015, Plaintiff has failed to file any
objection to the R & R. When no party has filed objections
to the magistrate's R & R, the Court reviews it only for
clear error. See Gomez v. Brown, 655 F.Supp.2d 332, 341
(S.D.N.Y.2009). “A decision is ‘clearly erroneous' when
the reviewing Court is left with the definite and firm
conviction that a mistake has been committed.” Courtney
v. Colvin, 13–cv–02884 (AJN), 2014 WL 129051, at *1
(S.D.N.Y. Jan. 14, 2014).
Having reviewed Judge Pitman's well-reasoned R & R,
and finding no clear error therein, the Court adopts the R
& R in its entirety. The Commissioner's motion to dismiss
or, in the alternative, for summary judgment is hereby
GRANTED. This resolves Dkt. No. 13 and the Clerk of
Court is instructed to terminate the case.
SO ORDERED.

REPORT AND RECOMMENDATION
PITMAN, United States Magistrate Judge.
TO THE HONORABLE ALISON J. NATHAN, United
States District Judge,

I. Introduction
By notice of motion dated May 7, 2014 (Docket Item
13), 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 applications for
disability insurance 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 October 26, 2010 (Exhibit 1 to the Declaration of
Patrick J. Herbst, dated Nov. 22, 2013 (Docket Item 15)
(“Herbst Decl.”) at 8 1 ). Both claims were initially denied
on February 17, 2011 (Herbst Decl. Ex. 1 at 8). Plaintiff
subseguently reguested a hearing, and an Administrative
Law Judge (“ALJ”) conducted a hearing on November
22, 2011 (Herbst Decl. Ex. 1 at 8). Although plaintiff had
counsel, plaintiff elected to proceed pro se at the hearing
and stated that her attorneys “didn't do anything” for her
(Herbst Decl. Ex. 1 at8). The ALJ concluded that plaintiff
suffered from coronary artery disease, diabetes mellitus,
asthma and high blood pressure and that these conditions
constituted “severe impairments” (Herbst Decl. Ex. 1
at 10). Nevertheless, he concluded that plaintiff had
the residual functional capacity to perform sedentary
work provided she avoided concentrated exposure to
respiratory irritants and that she was also capable of
performing her past work as a receptionist (Herbst Decl.
Ex. 1 at 11, 13). The ALJ's decision was mailed to plaintiff
on February 2, 2012 (Herbst Decl. ¶ 3(a)).

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1

DeJesus v. Commissioner of Social Sec., Not Reported in F.Supp.3d (2015)

1

Because the exhibits attached to the Herbst
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 Plaintiff timely requested review of the ALJ's decision,
and on August 20, 2013, the Appeals Council advised
plaintiff that it had denied her request for review (Herbst
Decl. ¶ 3(a) & Ex. 2 thereto). 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 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.
(Herbst Decl. Ex. 2 at 18). The 65th day after August 20,
2013 was October 24, 2013.
Plaintiff submitted her complaint to the Court's Pro Se
Office on November 6, 2013 (Docket Item 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 Herbst Decl. ¶ 3(b)).
On April 8, 2014, I set a briefing schedule, directing
defendant to make its dispositive motion by May 7,
2014 and directing plaintiff to respond and or cross-move
no later than June 6, 2014 (Docket Item 12). Although
defendant timely filed the present motion, there was no
response of any kind from plaintiff. Accordingly, on
October 14, 2014, I issued an Order mea sponte giving
plaintiff until November 7, 2014 to submit any opposition
she might have (Docket Item 17). 2 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 the Appeals Council's decision until October
30, 2013 “due to state freeze” (Docket Item 2 at 2).
2

My October 7 Order provided:
By notice of motion dated May 7, 2014 (Docket
Item 13), the Commissioner of Social Security
has submitted a motion to dismiss. A briefing
schedule endorsed on April 8, 2014 (Docket Item
12) reguired plaintiff to file any opposition to the
Commissioner's motion by June 6, 2014. To date,
plaintiff has not served or filed any opposition to
the motion, nor has she reguested 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 ... 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 November 14, 2014. In the absence of
a reguest for an extension of time, I shall consider
the motion fully submitted as of that date and
ready for decision

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 him 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:

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2

DeJesus v. Commissioner of Social Sec., Not Reported in F.Supp.3d (2015)

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.
*3 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 ).
Plaintiff's complaint here is clearly untimely, and dismissal
is warranted unless some exception to the general rule
is applicable. See Liranzo v. Comm'r of Soc. Sec., 411
Fed.Appx. 390, 391–92 (2d Cir.2011) (summary order)
(affirming dismissal of action brought under Section 205
of the Act as untimely); Louis v. Comm'r of Soc. Sec.,
349 Fed.Appx. 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. Comm'r of Soc. Sec., 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 a conclusory
statement of nonreceipt.

“[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) (guoting Guinyard v.
Apfel, 99 CV 4242, 2000 WL 297165, at *4 (S.D.N.Y.
Mar.22, 2000 [), aff'd, 411 Fed.Appx. 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” beyond
her conclusory allegation that she never received the
notice).
Kesoglides v. Comm'r of Soc. Sec., 13–CV–4724 (PKC),
2015 WL 1439862 at *3 (E.D.N.Y. Mar. 27, 2015).
Plaintiff offers no details in support of her contention
that she did not receive notice of the Appeals Council's
decision until approximately 70 days after it was mailed
except her cryptic reference to a “state freeze.” If plaintiff
is attempting to refer to the partial shutdown of the
federal government that occurred in October 2013, her
contention is unpersuasive. The partial shutdown did not
commence until October 1, 2013–42 days after the mailing
of the Appeals Council's decision. Until October 1, the
government operated normally. Second, I take judicial
notice of the fact that even after the partial shutdown
went into effect, the United States Postal Service was
unaffected and continued to operate normally (Brad
Plumer, “Absolutely Everything You Need to Know
About How the Government Shutdown Will Work,”

Wonkblog,
The
Washington
Post
(Sept.
30,
2013), http://www.washingtonpost.com/ blogs/wonkblog/
wp/2013/ 09/30/absolutely everything-you-need- toknowabout-how-the -government-shutdown -will-work/).
Thus, the timing and scope of the partial government
shutdown would not have delayed the delivery of the
Appeals Council's notice.
*4 I have also considered whether an eguitable toll
might enable plaintiff to avoid dismissal. A physical or
mental illness may give rise to an eguitable toll. Canales v.
Sullivan, 936 F.2d 755, 758–59 (2d Cir.1991);
SSR 91–5p, 56 FR 29971–01, 1991 WL 295453 (July 1,
1991). Plaintiff, however, again fails to offer any facts that
might give rise to an eguitable toll.

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

3

DeJesus v. Commissioner of Social Sec., Not Reported in F.Supp.3d (2015)

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[.]” Boos,
201 F.3d at 185; see Twumwaa, 2014 WL 1928381, at *4
(claims that plaintiff was “stressed” and “in pain” were
insufficient to invoke tolling); Courtney v. Colvin, 13 CV
02884, 2014 WL 129051, at *2 (S.D.N.Y. Jan.14, 2014)
(alleged illness did not justify equitable tolling without
a connection to plaintiff's ability to meet deadline);
Goff v. Apfel, 99 CV 8062, 2004 WL 1243148, at *3–5
(E.D.N.Y. Mar.30, 2004) (tolling not warranted where
plaintiff did not show a “causal connection between
any mental impairment and the lateness of [plaintiff's]
complaint”).
Kesoglides v. Comm'r of Soc. Sec., supra, 2015 WL
1439862 at *4.
Plaintiff alleges in her complaint that she suffers from an
abscess in her brain and depression. Plaintiff has attached
a number of medical records to her complaint, and
although one of the records mentions anxiety, none refer
to a brain abscess or depression. These vague references
in the complaint are simply insufficient to establish that
plaintiff suffered from any condition that was so disabling
that it could form the basis for 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 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, 100 S.Ct. 2486,
65 L.Ed.2d 532 (1980); accord McNeil v. United States,
508 U.S. 106, 113, 113 S.Ct. 1980, 124 L.Ed.2d 21 (1993);
Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147,
End of Document

152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam )
(“Procedural requirements ... are not to be disregarded by
courts out of a vague sympathy for particular litigants.”).

IV. Conclusion
Accordingly, for all the foregoing reasons, I respectfully
recommend that summary judgment be granted
dismissing plaintiff's complaint on the ground that it is
time-barred.

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 Alison
J. Nathan, United States District Judge, 40 Centre
Street, Room 2102, New York, New York 10007,
and to the Chambers of the undersigned, 500 Pearl
Street, Room 750, New York, New York 10007. Any
requests for an extension of time for filing objections
must be directed to Judge Nathan. 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, 106 S.Ct. 466, 88 L.Ed.2d 435
(1985); United States v. Male Juvenile, 121 F.3d 34, 38 (2d
Cir.1997); IUE AFL–CIO Pension Fund v. Herrmann, 9
F.3d 1049, 1054 (2d Cir.1993); Frank v. Johnson, 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 (2d Cir.1983) (per curiam ).

*5 Dated: May 15, 2015.
All Citations
Not Reported in F.Supp.3d, 2015 WL 3555787

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4

Taylor v. Fresh Direct, Not Reported in F.Supp.2d (2012)

2012 WL 6184033
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Roy TAYLOR, Plaintiff,
v.
FRESH DIRECT, et al., Defendants.
No. 12 Civ.2084(GBD)(AJP).
|
Dec. 12, 2012.

SUPPLEMENTAL REPORT
AND RECOMMENDATION
ANDREW J. PECK, United States Magistrate Judge.
*1 To the Honorable George B. Daniels, United States
District Judge:
By Report & Recommendation dated December 5, 2012,
I recommended dismissal of pro se plaintiff Roy Taylor's
amended complaint as time barred pursuant to 42 U.S.C.
§ 2000e–5(f)(1). Taylor v. Fresh Direct, 12 Civ.2084, 2012
WL 6053712 (S.D.N.Y. Dec. 5, 2012) (Peck, M.J.). The
Pro Se Office received Taylor's opposition papers, which
were due by November 30, 2012, on December 5, 2012,
and docketed the submission on December 6, 2012. (See
Dkt. No. 25: Notice in Opp. to Motion.) Because Taylor
is in prison and his opposition papers are dated November
29, 2012, this Court has considered his belatedly received
submission. See, e.g., Taylor v.. Fresh Direct, 2012 WL
6053712 at *1 n. 2 ( & cases cited therein).
For the reasons set forth below and in my December
5, 2012 Report & Recommendation, defendants' motion
to dismiss Taylor's amended complaint should be
GRANTED.

ANALYSIS
The primary argument advanced in Taylor's opposition
papers is that the limitations period should be equitably
tolled because Taylor is incarcerated and spent twenty
days in punitive segregation. (Dkt. No. 25: Taylor
Opp. Br. at 1, 3, 6, 8.) This argument was addressed

and disposed of in my December 5, 2012 Report &
Recommendation. Taylor v. Fresh Direct, 12 Civ.2084,
2012 WL 6053712 at *5–6 (S.D.N.Y. Dec. 5, 2012)
(Peck, M.J.) (“[E]quitable tolling is not warranted merely
because a plaintiff is in prison. Nor is Taylor's alleged
confinement to ‘punitive seg’ a basis for equitable
tolling.” (citations & fn. omitted)).
The only relevant new contention in Taylor's submission
is an isolated assertion that he was “diagnosed with
‘depression’ “ when he began serving his prison term.
(Taylor Opp. Br. at 6.) In support of this claim, he attaches
a Correction Department Mental Health form indicating
that Taylor “reports being a little depressed.” (Taylor
Opp. Br. Ex. B: 9/11/11 Referral of Inmates to Mental
Health Servs. at 2, emphasis omitted.)
A medical condition or mental impairment may warrant
equitable tolling of the statute of limitations where the
impairment prevented the plaintiff from proceeding in
a timely fashion. See, e.g., Baroor v. N.Y.C. Dep't of
Educ., 362 F. App'x 157, 160 (2d Cir.2010). 1 “However,
a ‘conclusory and vague claim [of a mental impairment],
without a particularized description ... is manifestly
insufficient to justify any further inquiry into tolling.’ “
Guinyard v. Apfel, 99 Civ. 4242, 2000 WL 297165 at *4
(S.D.N.Y. Mar. 22, 2000) (quoting Boos v. Runyon, 201
F.3d 178, 185 (2d Cir.2000)). 2
1

Accord, e.g., Bolarinwa v. Williams, 593 F.3d 226,
232 (2d Cir.2010); Zerilli–Edelglass v. N.Y.C. Transit
Auth., 333 F.3d 74, 80 (2d Cir.2003) (“Equitable
tolling is generally considered appropriate ... where
a plaintiff's medical condition or mental impairment
prevented her from proceeding in a timely fashion.”);
Brown v. Parkchester S. Condos., 287 F.3d 58, 60 (2d
Cir.2002) (Sotomayor, C.J.) (“[E]quitable tolling may
be appropriate where the plaintiff's failure to comply
with the statute of limitations is attributable to the
plaintiff's medical condition.”); Jones v. N.Y. Dep't of
Corr. (DOC) Jail, 11 Civ. 4477, 2011 WL 5865143
at *3 (S.D.N.Y. Nov. 22, 2011) (Peck, M.J.), report
& rec. adopted, 2012 WL 1232963 (S.D.N.Y. Apr. 12,
2012); Joe v. Moe, 10 Civ. 4417, 2011 WL 2416882 at
*4 (S.D.N.Y. June 1, 2011); Apionishev v. Columbia
Univ., 09 Civ. 6471, 2011 WL 1197637 at *4 (S.D.N.Y.
Mar. 25, 2011); Rhodes v. Senkowski, 82 F.Supp.2d
160, 168 (S.D.N.Y.2000) (Buchwald, D.J. & Peck,
M.J.).

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1

Taylor v. Fresh Direct, Not Reported in F.Supp.2d (2012)

2

Accord, e.g., Bolarinwa v. Williams, 593 F.3d at 232
(“The burden of demonstrating the appropriateness
of equitable tolling for mental illness lies with
the plaintiff ... [who] must offer a ‘particularized
description of how her condition adversely affected
her capacity to function generally or in relationship
to the pursuit of her rights.’ Therefore, in order to
justify tolling of the ... statute of limitations due
to mental illness, [plaintiff] must demonstrate that
her particular disability constituted an ‘extraordinary
circumstance’ severely impairing her ability to comply
with the filing deadline, despite her diligent efforts
to do so.” (citation omitted)); Apionishev v. Columbia
Univ., 2011 WL 1197637 at *4 (“[T]he burden
of demonstrating the appropriateness of equitable
tolling lies with the plaintiff. Specifically, a plaintiff
must establish through his pleadings how the
particular disability ‘severely impair[ed][his] ability to
comply with the filing deadline, despite [his] diligent
effort to do so.’ “ (fn.omitted)); Florio v. Cuomo,
10 Civ. 0998, 2010 WL 5222123 at *11 (S.D.N.Y.
Nov. 16, 2010) (Plaintiff “must demonstrate that
his mental illness prevented him from complying
with the filing deadline .”), report & rec. adopted,
2011 WL 223217 (S.D.N.Y. Jan. 24, 2011); Victorial
v. Burge, 477 F.Supp.2d 652, 654 (S.D.N.Y.2007);
Lloyd v. Bear Stearns & Co., 99 Civ. 3323, 2004 WL
2848536 at *10 (S.D.N.Y. Dec. 9, 2004) (Daniels,
D.J.); Bartow v. Commissioner, 04 Civ. 3200, 2004 WL
1057783 at *1 n. 2 (S.D.N.Y. May 12, 2004) (Peck,
M.J.); Rhodes v. Senkowski, 82 F.Supp.2d at 169–
70 (Plaintiff “must show that these medical problems
rendered him unable to pursue his legal rights during
the relevant time period.”); see also Serrano v. USA
United Transit Bus Inc., No. 09–CV–2710, 2009 WL
3698395 at *7 (E.D.N.Y. Nov. 3, 2009) (“[P]laintiffs
do not sufficiently allege circumstances that would
justify equitable tolling based on mental illness.
Though plaintiffs assert that [individual plaintiff] was
‘medically and legally impaired,’ that contention is a
legal conclusion rather than a factual allegation, and
is thus not subject to the principle that the Court must
accept the plaintiffs' factual allegations as true at the
motion-to-dismiss stage.”), aff'd, 402 F. App'x 574 (2d
Cir.2010).

Taylor's bald assertion of depression, therefore, will not
suffice to toll Title VII's statutory limitations period. See,
e.g., Boos v. Runyon, 201 F.3d at 185 (Plaintiff “offers no
more than a statement that she suffers from ‘paranoia,
panic attacks, and depression.’ ... [Plaintiff's] conclusory
and vague claim ... is manifestly insufficient to justify any
further inquiry into tolling.”); Mateo v. Riverbay Corp.,

168 F.Supp.2d 118, 121 (S.D.N.Y.2001) (Daniels, D.J.)
(“[E]quitable tolling is unwarranted. Plaintiff has failed
to show that her alleged depression was of such a nature
as to render her incapable of complying with the timing
requirements.”). 3
3

Accord, e.g., Green v. Sheehan, No. 12–CV–0665,
2012 WL 3561978 at *2 (W.D.N.Y. Aug. 13,
2012) (“The existence of mental illness, alone, does
not justify tolling a filing deadline.”); Apionishev
v. Columbia Univ., 2011 WL 1197637 at *6
(“[D]epression or illness alone are not sufficient
to justify equitable tolling, and [plaintiff] does not
explain how these factors precluded the timely filing
of his claims.” (fn.omitted)); Chmiel v. Potter, No.
09–CV–555, 2010 WL 5904384 at *10 (W.D.N.Y.
Dec. 7, 2010), report & rec. adopted, 2011 WL 810159
(W.D.N.Y. Mar. 2, 2011); Webster v. Potter, 746
F.Supp.2d 635, 641 (S.D.N.Y.2010) (pro se plaintiff's
claim “that he has a ‘history of depression dating back
to the mid 1990's' “ is insufficient to toll Title VII
limitations period); Springs v. Bd. of Educ., 10 Civ.
01243, 2010 WL 4068712 at *3 (S.D.N.Y. Oct. 14,
2010) (“[T]he Second Circuit has found allegations
of depression and anxiety, without particularized
showings of how those conditions prevented a
pursuit of legal rights, too vague to support a
finding of extraordinary circumstances that would
warrant equitable tolling.”); Serrano v. USA United
Transit Bus Inc., 2009 WL 3698395 at *7 (“Plaintiffs'
assertion that [individual plaintiff] suffered from posttraumatic stress disorder and depression does not
provide a sufficient basis for equitable tolling, because
plaintiffs simply do not explain how the illness
stood in the way of [individual plaintiff's] ability
to comply with the limitations period.”); Hakim v.
Hall, 09 Civ. 860, 09 Civ. 861, 2009 WL 5910310
at *4 (S.D.N.Y. Oct. 23, 2009) (medical reports
stating “that Plaintiff DD has ‘Major Depressive
Disorder’ and ‘Posttraumatic Stress Disorder’ ... in
no way indicate that Plaintiff DD was so mentally
incapacitated that she was unable to appreciate or
pursue her legal rights”; equitable tolling of Title
VII limitations period was inappropriate), report &
rec. adopted, 2010 WL 695027 (S.D.N.Y. Feb. 19,
2010); Gannon v. Continuum Health Partners, Inc.,
06 Civ. 5133, 2007 WL 2040579 at *5 (S.D.N.Y.
July 12, 2007); Lloyd v. Bear Stearns & Co., 2004
WL 2848536 at *11; Bartow v. Commissioner, 2004
WL 1057783 at *1 n. 2 (“The sole excuse [plaintiff]
offered for filing late-that she was ‘depressed'-thus
does not constitute one of the ‘rare cases' that warrant

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2

Taylor v. Fresh Direct, Not Reported in F.Supp.2d (2012)

equitable tolling.” (citation omitted)); Rhodes v.
Senkowski, 82 F.Supp.2d at 173 (“[P]etitioner must
allege more than the mere existence of physical or
mental ailments to justify equitable tolling.”).

*2 Moreover, Taylor has submitted numerous
documents evidencing that he indeed was able to pursue
his rights during the period he seeks to toll. (Dkt. No. 11:
Am. Compl. Exs.: 9/5/11 Letter to ALJ, 10/27/ 11 Letter
to Attorney Rosner, 1 / 18/ 12 Letter to Attorney Porretto,
2/4/ 12 Letter to Attorney Marshall; Taylor Opp. Br. Ex.
E: 3/12/12 Letter to ALJ Badner.) These documents belie
any claim that Taylor was prevented from pursuing his
rights due to depression. See, e.g., Chen v. Mukasey, 278 F.
App'x 7, 8 (2d Cir.2008); Turner v. Fed. Aviation Admin.,
169 F. App'x 641, 642 (2d Cir.2006), cert. denied, 549 U.S.
1229, 127 S.Ct. 1301 (2007). 4
4

Accord, e.g., Hills v. Praxair, Inc., No. 11–CV–678,
2012 WL 1935207 at *12 (W.D.N.Y. May 29, 2012)
(pursuit of workers' compensation claim “serves to
undermine Plaintiff's claim that he was unable to
protect his claims ..., because he has conceded to still
having the ability to pursue other legal remedies”);
Apionishev v. Columbia Univ., 2011 WL 1197637 at
*6; Mulkern v.. N.Y. State Police, 08 Civ. 8870,
2010 WL 5584598 at *2 (S.D.N.Y. Dec. 8, 2010) (“
‘[C]ourts have repeatedly refused to apply equitable
tolling where a plaintiff has evidenced an ability to
pursue his or her legal rights during the relevant
period.’ ”), report & rec. adopted, 2011 WL 135001
(S.D.N.Y. Jan. 13, 2011); Serrano v. USA United
Transit Bus Inc., 2009 WL 3698395 at *8 (“These
actions belie plaintiffs' claim that [plaintiff] was
prevented by illness from filing a timely complaint in
federal court .”); Hakim v. Hall, 2009 WL 5910310 at
*4 (“[T]he Court notes that Plaintiff DD pursued a
workers' compensation claim, a corresponding state
court claim, and a claim with the Equal Employment
Opportunity Commission during the time she seeks
to have equitably tolled.”); Stella v. Potter, No. 02–
CV–4940, 2009 WL 792177 at *8 (E.D.N.Y. Mar.
23, 2009) (“Courts have found that plaintiffs' actions
to pursue their legal rights during the period in
which they claim incapacitation undermine claims
that tolling is warranted.”); Victorial v. Burge, 477
F.Supp.2d at 655.

End of Document

CONCLUSION
For the reasons set forth above and in my December 5,
2012 Report & Recommendation, defendants' motion to
dismiss Taylor's amended complaint as time barred (Dkt.
No. 20: Notice of Motion), should be GRANTED.

FILING OF OBJECTIONS TO THIS
REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of
the Federal Rules of Civil Procedure, the parties shall
have fourteen (14) days from service of this Report to
file written objections. See also Fed.R.Civ.P. 6. 5 Such
objections (and any responses to objections) shall be filed
with the Clerk of the Court, with courtesy copies delivered
to the chambers of the Honorable George B. Daniels, 500
Pearl Street, Room 1310, and to my chambers, 500 Pearl
Street, Room 1370. Any requests for an extension of time
for filing objections must be directed to Judge Daniels
(with a courtesy copy to my chambers). Failure to file
objections will result in a waiver of those objections for
purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct.
466 (1985); Ingram v. Herrick, 475 F. App'x 793, 793 (2d
Cir.2012); IUE AFL–CIO Pension Fund v. Herrmann, 9
F.3d 1049, 1054 (2d Cir.1993), cert. denied, 513 U.S. 822,
115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d
Cir.1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.),
cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small
v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d
Cir.1989); Wesolek v.. Canadair Ltd., 838 F.2d 55, 57–59
(2d Cir.1988); McCarthy v. Manson, 714 F.2d 234, 237–38
(2d Cir.1983).
5

If the pro se plaintiff requires copies of any of the cases
reported only in Westlaw, plaintiff should request
copies from the defendants' counsel. See Lebron v.
Sanders, 557 F.3d 76, 79 (2d Cir.2009); SDNY–
EDNY Local Civil Rule 7.2.

All Citations
Not Reported in F.Supp.2d, 2012 WL 6184033
© 2017 Thomson Reuters. No claim to original U.S. Government Works.

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

3

Taylor v. Fresh Direct, Not Reported in F.Supp.2d (2013)
118 Fair Empl.Prac.Cas. (BNA) 489

2013 WL 1897778
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Roy TAYLOR, Plaintiff,
v.
FRESH DIRECT, et al., Defendants.
No. 12 Civ.2084(GBD)(AJP).
|
May 7, 2013.

MEMORANDUM DECISION AND ORDER
GEORGE B. DANIELS, District Judge.
*1 Pro se Plaintiff Roy Taylor brings this action pursuant
to Title VII of the Civil Rights Act of 1964 against
his former employee, Fresh Direct, and various Fresh
Direct employees. Plaintiff, whom Fresh Direct hired
as a “helper” on a grocery delivery team, alleges that
he was treated less favorably than other employees and
ultimately terminated on account of his race. Defendants
moved to dismiss the complaint on the merits and as time
barred pursuant to 42 U.S.C. § 2000e–5(f)(1). This Court
referred the case to Magistrate Judge Andrew J. Peck for
his Report and Recommendation. Magistrate Judge Peck
issued two Reports and Recommendations in which he
recommended dismissal of Plaintiff's complaint because
Plaintiff failed to timely file it within the 90–day statute
of limitations. This Court adopts Magistrate Judge Peck's
Reports and Recommendation. Defendants' motion to
dismiss is GRANTED.
Plaintiff was fired from his job on or about March
9, 2011. Am. Compl., ECF No, 11, at 20. In April
2011, Plaintiff filed a charge with the Equal Employment
Opportunity Commission (“EEOC”) alleging that the
Defendants racially discriminated against him. Id. at 3.
Plaintiff provided the EEOC with his Bronx apartment
address. Id. at 12. Plaintiff was then incarcerated at
Rikers Island on August 24, 2011. Plaintiff mentions
no effort to notify the EEOC of his changed address.
The EEOC mailed a right to sue letter to Plaintiff's
Bronx apartment on September 30, 2011, triggering Title
VII's 90–day statute of limitations period. Am. Compl.,
9. Taylor's girlfriend collected Plaintiff's mail from his

Bronx apartment and forwarded it to Plaintiff sometime
in October, 2011. Id. at 21.
Plaintiff commenced this action on March 8, 2012. Compl.
9. On April 3, 2012, Chief Judge Loretta A. Preska, sua
sponte, ordered Plaintiff to amend his complaint within 60
days because Plaintiff did not “indicate his race” and did
not “allege that he completed the EEOC process, obtained
a right to sue letter and timely filed this complaint.” Order
to Amend, ECF No. 4, at 2. In the course of drafting
his amended complaint, Plaintiff wrote to the EEOC to
obtain another copy of the September 30, 2011 right to sue
letter and received it in June 2012. Pl's Supp. Obj., ECF
No. 32 at 2. Plaintiff then filed an amended complaint on
June 5, 2012.
Defendants' moved to dismiss. On December 5, 2012,
Magistrate Judge Peck issued a Report recommending
dismissal of Plaintiff's amended complaint as time barred.
He reiterated this conclusion in a supplemental Report he
issued on December 12, 2012. 1
1

Magistrate Judge Peck issued his initial Report prior
to receiving Plaintiff's opposition brief, and issued
his supplemental Report in response to one new
argument raised in Plaintiff's opposition.

The Court may accept, reject or modify, in whole or in
part, the findings and recommendations set forth within
the Report. 28 U.S.C. § 636(b)(1)(C). When there are
objections to the Report, the Court must make a de novo
determination of those portions of the Report to which
objections are made. Id.; see also Rivera v. Barnhart,
423 F.Supp.2d 271, 273 (S.D.N.Y.2006). The district
judge may also receive further evidence or recommit the
matter to the magistrate judge with instructions. See
Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1)(C). The Court
need not conduct a de novo hearing on the matter. See
United States v. Raddatz, 447 U.S. 667, 675–76 (1980).
Rather, it is sufficient that the Court “arrive at its own,
independent conclusions” regarding those portions to
which objections were made. Nelson v. Smith, 618 F.Supp.
1186, 1189–90 (S.D.N.Y.1985) (quoting Hernandez v.
Estelle, 711 F.2d 619, 620 (5th Cir.1983)). When no
objections to a Report are made, the Court may adopt the
Report if “there is no clear error on the face of the record.”
Adee Motor Cars, LLC v.. Amato, 388 F.Supp.2d 250, 253
(S.D.N.Y.2005) (citation omitted).

© 2017 Thomson Reuters. No claim to original U.S. Government Works.

1

Taylor v. Fresh Direct, Not Reported in F.Supp.2d (2013)
118 Fair Empl.Prac.Cas. (BNA) 489

*2 In his Reports, Magistrate Judge Peck advised the
parties that pursuant to 28 U.S.C. § 636(b)(1), failure
to file timely objections would result in their waiver
and preclude appellate review. Plaintiff objected to both
Reports. In both sets of objections, he argues that his
complaint is subject to equitable tolling, based on his
newly minted claim that he did not receive the right to
sue letter until May 1, 2012 because he was in prison, and
because he was afflicted with depression that made him

letter in October, 2011. Further, courts have held that
failure to notify the EEOC of an address change (as
required by 29 C.F.R. § 1601.7(b)) is sufficient to
reject the application of equitable tolling and dismiss
the complaint as untimely. See Abraham v. Woods
Hole Oceanographic Inst., 553 F.3d 114, 120 (1st
Cir.2009); Banks v. Metro N. Commuter R.R., No. 97
Civ. 1601, 1998 WL 312237, at *3 (S.D.N.Y. Jun. 12,
1998) (“If the complainant does not receive the rightto-sue letter due to a failure to inform the EEOC of
a change in address and thereafter files an untimely
civil complaint, the complaint must be dismissed.”).

unable to bring his suit in a timely manner. 2
2

Plaintiff also argues that Chief Judge Preska extended
the 90–day statute of limitations by 60 days so that
Plaintiff could amend his complaint. Pl's Supp. Obj.,
ECF No. 32 at 3. Chief Judge Preska, however,
granted Plaintiff 60 additional days in order to
demonstrate compliance with the original 90–day
limitations period; she did not extend it. See Order to
Amend, ECF No. 4.

Magistrate Judge Peck properly determined that Plaintiffs
original complaint was untimely. A plaintiff alleging a
violation of Title VII must bring his complaint within 90
days of receiving a right to sue letter from the EEOC. 42
U.S.C. § 2000e–5(f)(l); Francis v. City of New York, 235
F.3d 763, 768 (2d Cir.2000). Plaintiff conceded that he
received the EEOC right to sue letter when his girlfriend
brought him his mail in jail sometime in October, 2011.
Pl's Opp'n, ECF No. 25, at 9. Although Plaintiff does not
allege the specific date on which he received his right to sue
letter, March 8, 2012 (the date Plaintiff filed his original
complaint) is more than 90 days after any day in October,
2011. 3 Plaintiff's complaint is therefore time barred unless
he can avail himself of one of the limited exceptions to the
statute of limitations.
3

Plaintiff changed his contention considerably after
Magistrate Judge Peck recommended dismissal for
failure to comply with the statute of limitations. In his
objections to the Magistrate Judge's Reports, Plaintiff
contended that the letter he received in October was
not his right to sue letter, but a letter the EEOC
sent him in August in which it asked him to please
sign, date, and notarize his EEOC charge. He claims
that he did not receive the right to sue letter until
June, 2012, when he requested another copy. This
contradicts the version of events that Plaintiff set
forth before being alerted that he had not complied
with the statute of limitations in which he claimed
that his girlfriend gave him notice of the right to sue

Magistrate Judge Peck also correctly concluded that
Plaintiff does not qualify for equitable tolling of the
limitations period. Title VII's statute of limitations is
subject to equitable tolling under certain “rare and
exceptional circumstances” (Zerilli–Edelglass v. New York
City Transit Auth., 333 F.3d 74, 80 (2003)), such as
when the plaintiff's original pleading was defective or
“where the complainant has been induced or tricked by his
adversary's misconduct into allowing the filing deadline to
pass .” Irwin v. Department of Veterans Affairs, 498 U.S. 89
(1990). “A plaintiff's failure to act diligently is not a reason
to invoke equitable tolling.” South v. Saab Cars USA, 28
F.3d 9, 12 (2d Cir.1994).
In his objections, Plaintiff argues that his complaint
should be equitably tolled because he was incarcerated
and because he suffered from mild depression that
prevented him from pursuing his claim. Neither reason
suffices. Confinement in prison, even in punitive
segregation, does not provide a basis for equitable
tolling. Perry v. Sony Music, 462 F.Supp.2d 518, 520
(S.D.N.Y.2006) citing Walker v. Jastremski, 159F.3d 117,
119(1998). Neither does Plaintiff's claim that he was “a
little depressed.” Pl's Opp'n, Ex. B, ECF No. 25 at 17.
A medical or mental impairment only warrants equitable
tolling when such impairment renders the plaintiff
incapable of meeting deadlines. Mateo v. Riverbay Corp.,
168 F.Supp.2d 118, 123 (S.D.N.Y.2001). Plaintiff has
provided no indication that his depression was that
severe. 4 Plaintiff's complaint was untimely and is not
subject to equitable tolling.
4

In fact, Plaintiff attaches several letters to his
amended complaint that indicate that he was fully
capable of sending and receiving correspondence
during this time period. See Compl. at 6 (Feb. 2, 2012
letter to attorney Andrew Marshall); 28 (Sept. 5, 2011

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2

Taylor v. Fresh Direct, Not Reported in F.Supp.2d (2013)
118 Fair Empl.Prac.Cas. (BNA) 489
letter to Admin. L. J.); 33 (Jan. 18, 2012 letter to
Attorney Joseph Porretto).

5

This decision also closes out ECF No. 31 (motion
for a typewriter), ECF No. 32 (which are Plaintiff's
objections, incorrectly styled as a motion), and ECF
No. 45 (motion to add mental health evidence).

Conclusion
*3 Defendants' Motion to Dismiss (ECF No. 20)
plaintiff's complaint as time barred is GRANTED. The
Clerk of the Court is directed to close this case.

End of Document

5

All Citations
Not Reported in F.Supp.2d, 2013 WL 1897778, 118 Fair
Empl.Prac.Cas. (BNA) 489

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3

Bartow v. Commissioner of Social Security, Not Reported in F.Supp.2d (2004)

2004 WL 2368004
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Cynthia BARTOW, Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY, Defendant.
No. 04 Civ.3200 AJP.
|
Oct. 22, 2004.

On August 20, 2004, the government moved to dismiss
or for summary judgment on the ground that Bartow's
complaint was time barred. (Dkt.Nos.12-13.)
Plaintiff Bartow submitted nine pages of medical records
and unsworn letters from friends. (Dkt. No. 15.) The
medical documents indicate treatment for arthritis,
hypertension, back pain and other physical ailments, but
no medical indication of depression or mental illness.
(Id.) 1 Ms. Bartow asked for more time to file additional
papers opposing the government's motion, and he Court
granted her extension request, making her papers due
October 4, 2004. (Dkt. No. 16.) Now, more than two
weeks after that deadline, the Court has not received any
additional submissions from Ms. Bartow.

OPINION AND ORDER
PECK, Chief Magistrate J.
*1 By Report and Recommendation dated May 12, 2004,
I sua sponte recommended dismissal of this action because
plaintiff Bartow did not commence it within 60 days of
receipt of the Social Security Administration (“SSA”)
Appeals Council letter. See Bartow v. Commissioner
of Soc. Sec., 04 Civ. 3200, 2004 WL 1057783 at
*1 (S.D.N.Y. May 12, 2004) (Peck, M.J.). In her
complaint, Bartow acknowledged that she was filing “
‘way past the deadline,” 'but said she was “depressed.”
Id. Ms. Bartow filed an objection to my Report and
Recommendation, stating that she “was depressed, [and
is] on 19 different medications.” (Dkt. No. 6.) In light
of those (vague) representations, Judge Swain re-referred
the case to me “for further inquiries and proceedings as
appropriate.” (Dkt. No. 7.)
The Court directed Bartow to serve the SSA and the Unite
States Attorney's Office (Dkt. No. 8), which she did (see
Dkt. No. 9). The Court held a status conference with
Ms. Bartow and defense counsel on July 16, 2004. (See
Dkt. Nos. 10, 14.) Ms. Bartow reiterated that she “was
depressed” because she “was trying to get on SSI ever
since '96” and she kept getting turned down. (Dkt. No.
14: 7/16/04 Conf. Tr. at 3.) She added that she takes “19
different medications, and there are side effects to all of
these. Sometimes [she] can't even function right.” (Id. at
4.) Ms. Bartow stated that the medications she currently
takes are the same as she was taking and are in the SSA
administrative record. (Id.)

1

An August 2004 “Addendum” stamped with the
name of Dr. Balzora states that “Patient also stated
that around April 2004 she had felt depressed.” (Id.)
Ms. Bartow filed her complaint on April 8, 2004, but
it was due no later than March 11, 2004. Thus, this
“addendum,” even if the Court could consider it, is
insufficient to show that Bartow was medically unable
to file her complaint in a timely manner.

ANALYSIS
The parties have consented to decision of this action by
a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt.
No. 11.)
My original Report and Recommendation, familiarity
with which is assumed, cited the 60 day provision in 42
U.S.C. § 405(g), and concluded:
While this time-limit is not
jurisdictional, it does constitute a
period of limitations. Dismissal of such
actions brought after the sixty day
period thus is appropriate.

Bartow v. Commissioner, 2004 WL 1057783 at *1 (citations
omitted). (See also cases cited in Dkt. No. 13: Govt. Br.
at 4-5 .) My Report and Recommendation also noted the
possibility of “equitable tolling” in “rare cases”:
*2 “If a claimant alleges that incapacity due to mental
impairment during the 60-day limitations period impeded
her ability to seek judicial review in a timely manner, the

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1

Bartow v. Commissioner of Social Security, Not Reported in F.Supp.2d (2004)

district court should afford the claimant the opportunity
to present evidence buttressing this claim.” Guinyard v.
Apfel, 2000 WL 297165 at *4 (citing Canales v. Sullivan,
936 F.3d 755, 759 (2d Cir.1991)). “However, a ‘conclusory
and vague claim, without a particularized description ...
is manifestly insufficient to justify any further inquiry
into tolling.” ’ Guinyard v. Apfel, 2000 WL 297165 at *4
(quoting Boos v. Runyon, 201 F.3d 178, 185 (2d Cir.2000)).
The sole excuse Bartow offered for filing late-that she was
“depressed” (see fn.1 above)-thus does not constitute one
of the “rare cases” that warrant equitable tolling. See,
e.g ., Guinyard v. Apfel, 2000 WL 297165 at *2; Sykes v.
Apfel, 97 Civ. 7696, 1998 WL 338104 at *4 (S.D.N.Y. June
24, 1998) (“According this pro se plaintiff's complaint
the close and careful reading to which it is entitled, the
plaintiff has failed to identify any circumstance that would
justify equitable tolling of the statute of limitations in this
case. Therefore the complaint must be dismissed because
it is time barred under the 60-day statute of limitations in
Section 405(g).”).

There is no indication, however, that Ms. Bartow ever
saw a doctor for “depression.”

A review of plaintiff's medications reveals that they are
commonly prescribed treatments for asthma (Singulair,
Albuterol, Monopril, Flovent, Serevent), hypertension
(Clondine, Norvasc, Doxazosin, Hydrochlorthiaz), joint
pain (acetaminophen, Celebrex), and high cholesterol
(Pravachol, Lipitor). See Declaration of John E. Gura,
Jr. Exhibit B. 2 While the printouts supplied by plaintiff
indicate that her medications may produce certain side
effects, there is no proof that plaintiff actually experienced
any adverse symptoms from her medications. Moreover,
none of the medication printouts supplied by plaintiff
indicates that any of her medications are used for the
treatment of depression or any other mental condition.
Accordingly, there is no basis for equitable tolling of
he statute of limitations, and the complaint should be
dismissed as time-barred.
*3 2 Plaintiff also took MVI (a multivitamin), a calcium
supplement, Premarin (a female hormone), and used LacLotion to treat her dry skin.

Bartow v. Commissioner, 2004 WL 1057783 at *1 n. 2.
The Court has reviewed the ALJ's decision in this case,
which refers only to physical problems including low back
pain, bilateral knee disorders, asthma and hypertension.
(Dkt. No. 13: Herbst Aff. Ex. 1: ALJ Decision at 2-8.)
The ALJ concluded that those ailments permit Bartow to
perform sedentary work. (Id. at 7-8.) The Court is not
reviewing the validity of the ALJ's findings in that regard.
What is significant is that there is no reference in the ALJ's
eight page decision to “depression” or any other mental
or physical problems caused by an interaction of Bartow's
medications.
Ms. Bartow provided the Assistant United States
Attorney with a “handwritten list of her current
medications and copies of printouts concerning
medications from her pharmacy.” (Dkt. No. 13: Gura Aff.
¶ 4 & Ex. B.) Some of the medicines list side effects of
“drowsiness” or “tiredness,” but none identify depression
as a side effect. (Gura Aff. Ex. B.) 2 As the Government's
brief correctly summarizes her medications:
2

The information provided for one of the drugs,
Premarin (generic name: conjugated estrogen) warns
to contact your doctor immediately “if you experience
mental/mood changes (e.g., severe depression ... ).”

(Dkt. No. 13: Govt. Br. at 6-7 & n. 2.) The Court agrees.
The Court also notes that to the extent Ms. Bartow has
asserted that she had some difficulty in figuring out how
to bring her federal complaint, that provides no basis
for equitable tolling: the Appeals Council's letter clearly
explains the process. (See Dkt. No. 13: Herbst Aff. Ex. 2:
Appeals Council Letter at 2-3.)
Ms. Bartow was on many medications, and may have
been “depressed”-in the layman's sense, not the clinical
sense-that she was not being given Social Security SSI
benefits. But she has not established that any medical
or mental issue prevented her from filing her federal
complaint within the 60 days allowed by law, nor any basis
for equitable tolling.

CONCLUSION
Ms. Bartow's action is dismissed since it was not
commenced within 60 days of receipt of the Appeals
Council's letter, and she has not met her burden of proving
any basis for equitable tolling. The Clerk of Court shall
enter judgment dismissing this action and notify Ms.
Bartow of her right to appeal to the Second Circuit.

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2

Bartow v. Commissioner of Social Security, Not Reported in F.Supp.2d (2004)

SO ORDERED.

All Citations
Not Reported in F.Supp.2d, 2004 WL 2368004

End of Document

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3

Guinyard v. Apfel, Not Reported in F.Supp.2d (2000)
67 Soc.Sec.Rep.Serv. 81

KeyCite Yellow Flag - Negative Treatment
Distinguished by Pettway ex rel. Pettway v. Barnhart, S.D.Ala.,

November 12, 2002

2000 WL 297165
United States District Court, S.D. New York.
Kathy GUINYARD, Plaintiff,
v.
Kenneth S. APFEL, Commissioner
of Social Security, Defendant.
No. 99 CIV. 4242 MBM.
|
March 22, 2000.
Attorneys and Law Firms
Kathy Guinyard, for Plaintiff Pro Se.
Mary Jo White, Esq., United States Attorney for the
Southern District of New York, Lorraine S. Novinski,
Esq., Assistant United States Attorney, New York, for
Defendant.

OPINION AND ORDER
MUKASEY, D.J.
*1 Plaintiff Kathy Guinyard brings this pro se action
seeking review of a Social Security Administration
(“SSA”) decision denying her Supplemental Security
Income (“SSI”) benefits. Arguing that Guinyard failed
to file the complaint within the statutory limitations
period, defendant Kenneth S. Apfel, Commissioner of
Social Security, moves to dismiss the complaint pursuant
to 42 U.S.C. § 405(g) (1994) and Fed.R.Civ.P. 12(b)(6),
or, in the alternative, for summary judgment pursuant
to Fed.R.Civ.P. 56(c). For the reasons set forth below,
defendant's motion for summary judgment is granted, and
the complaint is dismissed.

I.
The following relevant facts are either undisputed or

and therefore not entitled to SSI benefits. (Passalacqua
Decl. ¶ 3(a) & Ex. 1) The ALJ sent a copy of the decision
to Guinyard's home address at “1106 Boynton Ave, Apt
5L, Bronx, N.Y. 10472.” (Passalacqua Decl. Ex. 1 at 1)
Guinyard on April 17, 1998 sought review of the ALJ's
decision. (Id. ¶ 3(a) & Ex. 2)
1

Beyond resolving all ambiguities and drawing all
factual inferences in favor of the non-moving party, I
must “read the pleadings of a pro se plaintiff liberally
and interpret them to raise the strongest arguments
that they suggest.” McPherson v. Coombe, 174 F.3d
276, 280 (2d Cir.1999) (internal quotation marks and
citation omitted).

On January 22, 1999, the Appeals Council denied
Guinyard's request for review and that day sent a notice
of its action to Guinyard at that address. (Id. ¶ 3(a) &
Ex. 3; Compl. Ex.) The letter advised Guinyard of her
right to seek review of the decision by instituting a civil
action in federal court within 60 days of her receipt of the
letter. (Passalacqua Decl. ¶ 3(a) & Ex. 3 at 1-2; Compl.
Ex. at 1-2) The letter added that it would be presumed to
have been received within five days of the date shown atop
the letter-January 22, 1999-“unless a reasonable showing
to the contrary [were] made.” (Passalacqua Decl. Ex. 3
at 1; Compl. Ex. at 1) Additionally, the notice advised
Guinyard of her right to petition the Appeals Council
for an extension of the 60-day period for filing a lawsuit
if she were unable to file a complaint within 60 days.
(Passalacqua Decl. Ex. 3 at 2; Compl. Ex. at 2)
Guinyard filed the complaint in the Pro Se Office of this
court on April 8, 1999. (Compl. at 1) She does not allege
that she sought an extension of time from the Appeals
Council, nor is there any evidence in the record suggesting
that she did. (Passalacqua Decl. Ex. ¶ 3(b))
Defendant moves to dismiss pursuant to 42 U.S.C.
§ 405(g) and Fed.R.Civ.P. 12(b)(6) for failure to
state a claim or, alternatively, for summary judgment
pursuant to Fed.R.Civ.P. 56(c). Because both parties have
submitted material outside the pleadings, and I have,
in fact, considered the extrinsic evidence, I have treated
defendant's motion as one for summary judgment. See
Kennedy v. Empire Blue Cross and Blue Shield, 989 F.2d
588, 592 (2d Cir.1993).

presented in the light most favorable to plaintiff. 1 On
March 30, 1998, an administrative law judge (“ALJ”)
issued a decision finding that Guinyard was not disabled

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1

Guinyard v. Apfel, Not Reported in F.Supp.2d (2000)
67 Soc.Sec.Rep.Serv. 81

II.
The SSI Program established by Title XVI of the Social
Security Act, codified at 42 U.S.C. § 1381 et seq. (1994 &
Supp.1999), provides benefits to those who are indigent
and disabled. See Bowen v. City of New York, 476 U.S.
467, 470 (1986). SSA regulations have established a fivestep process through which the SSA determines whether a
claimant is deemed unable “to engage in any substantial
gainful activity” and therefore eligible for benefits. See
id. (quoting and citing regulations). If a claimant wishes
to challenge the SSA's determination, she must exhaust
a series of administrative remedies, including a hearing
presided over by an ALJ, whose decision later can be
appealed to the SSA's Appeals Council. See id. at 472.
If, after exhausting administrative remedies, a claimant
remains unsatisfied, the statutory scheme allows her to
bring an action in federal district court seeking review. See
id. The statute so providing states in pertinent part:
*2 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
him of notice of such decision .... No
findings of fact or decision by the
Commissioner of Social Security shall
be reviewed by any person, tribunal, or
governmental agency except as herein
provided.

42 U.S.C. § 405(g)-(h) (emphasis added). Pursuant to
regulations promulgated by the SSA construing this
provision, the 60-day limitations period within which to
commence an action in federal court begins when the
notice is received by the claimant; the date of receipt is
presumed to be five days following the date of the notice,
“unless there is a reasonable showing to the contrary.” 20
C.F.R. § 422.210(c) (1999).
The “60-day limit is a ... waiver of sovereign immunity
and thus must be strictly construed.” City of New York,
476 U.S. at 479. Consequently, courts have not hesitated
to enforce the 60-day period as a firm limit. See, e.g.,
Burkett v. Apfel, No. 97 Civ. 4019(TPG), 1998 WL 846753
(S.D.N.Y. Dec. 4, 1998) (dismissing complaint as untimely
when filed one day after section 405(g)'s limitations period

expired). Although this rule embodies Congress's desire
“to move cases to speedy resolution in a bureaucracy
that processes millions of claims annually,” City of New
York, 476 U .S. at 481, the rule's impact can be mitigated
in two ways. First, the Commissioner is authorized to
extend the 60-day period when in his judgment such
an extension would be appropriate. See 42 U.S.C. §
405(g); 20 C.F.R. § 404.911 (1999) (delineating factors
considered in determining whether to grant extension)
Second, federal courts remain empowered to toll section
405(g) in “cases ... where the equities in favor of tolling
the limitations period are ‘so great that deference to the
agency's judgment is inappropriate.” ’ City of New York,
476 U.S. at 480 (quoting Mathews v. Eldridge, 424 U.S.
319, 330 (1976)). Among the “rare case[s],” City of New
York, 476 U.S. at 481, that warrant equitable tolling
under the law of this Circuit are instances in which a
claimant's mental impairment hinders her ability to seek
judicial review in a timely manner, or where misleading
or clandestine government action frustrates a claimant's
efforts to exercise her rights. See Canales v. Sullivan,
936 F.2d 755, 758-59 (2d Cir.1991); see also Monje v.
Shalala, No. 93 Civ. 4707(MBM), 1995 WL 540028, at
*2 (S.D.N.Y. Sept. 11, 1995) (outlining types of cases
in which courts have tolled section 405(g)'s limitations
period).
The Commissioner argues that Guinyard's complaint,
having been filed after section 405(g)'s 60-day limit, is
untimely. Giving Guinyard's pro se papers a close and
sympathetic reading, see supra n. 1, her submissions
suggest two potentially relevant responses: first, the
possibility that Guinyard might rebut the presumption
that she received notice of the Appeals Council's decision
five days after it was rendered, and second, the possibility
that Guinyard might demonstrate incapacity due to
mental impairment during the 60-day period. However,
the record here supports neither possibility.
*3 As to the first, Guinyard does not offer evidence
beyond a naked assertion to rebut the presumption that
she received the decision within five days of its date of
mailing. According to the pertinent regulations, Guinyard
is presumed to have received the SSA's denial of her
request for review five days after the date of the Appeals
Council notice. See 20 C.F.R. § 422.210(c). The Appeals
Council denied Guinyard's request for review on January
22, 1999 and that day sent her a notice of the denial.
(Passalacqua Aff. ¶ 3(a) & Ex. 3; Compl. Ex.) Therefore,

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2

Guinyard v. Apfel, Not Reported in F.Supp.2d (2000)
67 Soc.Sec.Rep.Serv. 81

Guinyard is presumed to have received the letter five
days afterward, on January 27, 1999. It follows that the
limitations period would have expired 60 days later, on
March 28, 1999-which, as a Sunday, would have been
extended a day to March 29, 1999. (Def. Mem. at 2, 5)
Guinyard filed her complaint on April 8, 1999, ten days
after the statutory deadline. (Compl. at 1)
Guinyard's complaint alleges that she received the notice
on April 4, 1999, or 72 days after it was sent. (Compl.¶
7) But “a plaintiff must do more than merely assert
that he did not receive the notice within five days....
Rather, a plaintiff must present some affirmative evidence
indicating that the actual receipt occurred more than
five days after issuance.” Marte v. Apfel, No. 96 Civ.
9024(LAP), 1998 WL 292358, at *2 (S.D.N.Y. June
3, 1998) (citations omitted) Guinyard's unsupported
assertion that when she received the letter “the envelope
was rip[ped] and taped all over” (Pl. Rep. at 1) is not the
meaningful showing required by 20 C.F.R. § 422.210(c)
to rebut the presumption of receipt within five days. In
Marte, for instance, the Court held that an unsupported
“affirmation, standing alone, [could] not constitute a
‘reasonable showing to the contrary’ within the meaning
of 20 C.F.R. § 422.210,” 1998 WL 292358, at *2, for
otherwise any claimant missing the filing deadline could
evade the limitations period simply by asserting belated
receipt of the decision without presenting any affirmative
evidence of the tardy arrival. See id.
In contrast, the Court in Chiappa v. Califano, 480 F.Supp.
856 (S.D.N.Y.1979), found that the plaintiff had offered
sufficient evidence to make a “reasonable showing”
overcoming the five-day presumption. See id. at 857.
There, the plaintiff affied that he had sold the house in
which he had lived at the time he filed his administrative
appeal; that he was living temporarily at another address
when the notice of denial was sent out; and that the
notice was forwarded to the second address and had a
confirmatory notation to that effect made by the railroad
clerk who had delivered the letter. See id. In addition, the
railroad clerk himself filed an affidavit stating that he had
delivered the notice to the plaintiff on the date the plaintiff
swore he had received it. See id. On the basis of all of this
evidence, the Court found that the plaintiff had advanced
adequate proof to make a “reasonable showing” that he
had not received the notice within five days of it being sent.

*4 In the present case, Guinyard's bare assertion that
the notice arrived over two months late in a damaged
condition falls well short of the type of showing made in
Chiappa. Furthermore, as the Commissioner points out,
the Appeals Council notice was addressed to Guinyard
at the same address as that used to send her the ALJ's
earlier decision, which she received with no delay in
delivery. (Def. Mem. at 5-6) The summons in this litigation
lists that address as Guinyard's current address, as well.
(Id. at 6; Dkt. No. 2) Therefore, Guinyard falls short
of the “reasonable showing” necessary to overcome the
presumption that she received the letter by January 27,
1999 and, in turn, that the complaint was filed after the
statutory limitations period had run.
Moreover, Guinyard's late filing does not warrant
equitable tolling on account of mental incapacity. If a
claimant alleges that incapacity due to mental impairment
during the 60-day limitations period impeded her ability
to seek judicial review in a timely manner, the district
court should afford the claimant the opportunity to
present evidence buttressing this claim. See Canales, 936
F.2d at 759. Any evidence of the claimant's having been
incapacitated during the filing period should then be
weighed to determine “whether, considering all of the
circumstances of the case, equitable tolling is warranted.”
Id. However, a “conclusory and vague claim, without
a particularized description ... is manifestly insufficient
to justify any further inquiry into tolling.” Boos v.
Runyon, 201 F.3d 178, 185 (2d Cir.2000) (applying Canales
's analysis in SSI context to claim alleging disability
discrimination under the Rehabilitation Act, 29 U.S.C. §
701 et seq. (1994 & Supp.1999)).
Here, Guinyard has not averred incapacity because of
mental impairment during the 60-day period. Thus,
equitable tolling should not be warranted. Cf. Canales,
936 F.2d at 759 (reasoning that “Canales' affidavit
avers that mental impairment prevented her from
comprehending her right to judicial review”). Even so,
I afforded Guinyard the opportunity to “describ[e] facts
known to her, documents and other evidence indicating
why defendant's motion should not be granted.” (Order
of 12/5/99) (Dkt. No. 9) Guinyard's reply describes the
suffering that she says she endures from scoliosis and
manic depression, emphasizing the back pain she feels,
the difficulty she has getting around, and the strong
medication she takes. (Pl. Rep. at 2) She explains that she
was molested as a child, attempted suicide, was placed in

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3

Guinyard v. Apfel, Not Reported in F.Supp.2d (2000)
67 Soc.Sec.Rep.Serv. 81

foster care and special education classes, and has received
therapy. (Id. at 3-6) She does not like to be around people
and hears voices late at night. (Id. at 2-3)
Guinyard's portrayal establishes no causal connection
between her mental state and the lateness of her
complaint. Whatever particularized allegations she has
made go to the merits of her underlying disability claim;
they do not explain why her complaint was delayed. (Id.
at 5) (“I don't know what else to do to prove to you
that I'm disabled”) As the Commissioner's attorney puts
it, “plaintiff's statement simply reiterates her bases for
claiming that she should be found disabled.” (Letter from
Assistant U.S. Attorney Novinski to the court of 12/21/99,
at 1) Guinyard has offered no “particularized description”
of the reasons that she commenced this action after the
limitations period prescribed by statute. The generalized
claims of disability made in Guinyard's reply do not
suffice, and therefore there is no basis for equitable tolling.
As “[t]he burden of demonstrating the appropriateness of
equitable tolling ... lies with the plaintiff,” Boos, 201 F .3d
at 185 (citation omitted), Guinyard cannot prevail on the
basis of mental incapacity.
End of Document

*5 In sum, Guinyard is unable to offer any convincing
explanation for the tardy initiation of this lawsuit. “[T]he
mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported
motion for summary judgment.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247-48 (1986); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). Accordingly,
the Commissioner is entitled to judgment as a matter of
law. See Fed.R.Civ.P. 56(c).
For the foregoing reasons, defendant's motion for
summary judgment is granted and the complaint is
dismissed.
SO ORDERED:

All Citations
Not Reported in F.Supp.2d, 2000 WL 297165, 67
Soc.Sec.Rep.Serv. 81

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4

Monje v. Shalala, Not Reported in F.Supp. (1995)
Unempl.Ins.Rep. (CCH) P 14818B

1995 WL 540028
United States District Court, S.D. New York.
Jorge MONJE, Plaintiff,
v.
Donna SHALALA, Secretary of Health
and Human Services, Defendant.
No. 93 Civ. 4707 (MBM).
|
Sept. 11, 1995.
Attorneys and Law Firms
Guilene Cherenfant, Bronx Legal Services, Bronx, NY,
for plaintiff.
Mary Jo White, U.S. Atty. for the S.D. of N.Y., Sapna V.
Raj, Asst. U.S. Atty., New York City, for defendant.

OPINION AND ORDER
MUKASEY, District Judge.
*1 Plaintiff Jorge Monje challenges a final decision
by defendant Secretary of Health and Human Services,
denying, in part, his request for disability benefits.
Defendant moves to dismiss the complaint pursuant to
Fed.R.Civ.P. 12(b)(1), arguing that plaintiff's failure to
comply with the 60–day statute of limitations prescribed
by 42 U.S.C. § 405(g) (1988) deprives this court of
subject matter jurisdiction. For the reasons stated below,
defendant's motion is granted.

I.
On April 4, 1988, plaintiff filed his first application with
the Department of Health and Human Services (“HHS”)
for disability benefits under Title II of the Social Security
Act, claiming he had been unable to work since January
1988, because of diabetes mellitus, high blood pressure,
asthma, and a back condition. (Monje Aff. ¶ 3; Compl. ¶
4) After two hearings, denials, and appeals filed “within
the sixty days that [he] was given” (Monje Aff. ¶¶ 4–
5), plaintiff received a partially favorable result at the
third hearing. The administrative law judge found that
plaintiff was disabled as of May 1, 1992, but because

plaintiff claimed he was disabled earlier, he requested
reconsideration by the Appeals Council, the final possible
review within the HHS administrative system. (Id. at ¶ 5)
In a letter dated February 24, 1993, the Appeals Council
denied plaintiff's request for a review, and apprised him of
his right to file a civil action in federal court. (Id. at ¶ 6;
Ponton Aff. ¶ 3(a)) The letter explained that the complaint
had to be filed in the United States District Court within
60 days after receipt of the letter, which is presumed to
occur within five days of mailing. (Compl.Ex. A at 1) The
time for filing expired on April 30, 1993.
Plaintiff avers that he received this letter in early March,
and promptly tried to commence a civil suit at the
Social Security district office, where he had filed his three
previous appeals. (Monje Aff. ¶ 6) An HHS employee
explained that he had to file his papers at the federal
courthouse, and gave him an “appeal letter” to present on
his arrival. (Id. at ¶ 7) Despite the information conveyed
in the February 24 letter, plaintiff claims he was not aware
of the 60–day constraint because the HHS employee “did
not tell me that I had to go to the federal court within a
certain period of time.” (Id.) Moreover, plaintiff alleges
that he assumed he had already filed because
I thought that by going to the district
office (which is where I had always
gone each time that I was denied),
that I was already filing the appeal.
I believed this especially because I
was given this “appeal letter” which
I was told to hand in at the federal
court when I got there.
(Id.) Plaintiff did not actually file his complaint in federal
court until May 6, 1993, six days after the time for filing
had expired. (Id. at ¶ 9) Defendant contends that the
complaint is barred by the statute of limitations, and
moves to dismiss for lack of subject matter jurisdiction.
Plaintiff responds that because his failure to file a timely
appeal was due to his mistaken impression that he could
file at the Social Security district office, and because the
HHS representative failed to remind him of the time
constraints, the doctrine of equitable tolling should apply
to preserve his right to a review.

II.

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1

Monje v. Shalala, Not Reported in F.Supp. (1995)
Unempl.Ins.Rep. (CCH) P 14818B

*2 Title II of the Social Security Act, 42 U.S.C. §§
401 et seq., established the Social Security Disability
Program to pay benefits to persons who have contributed
to the program and suffer from a mental or physical
disability. The Social Security Administration uses a fivestep process to determine eligibility for benefits. Bowen v.
City of New York, 476 U.S. 467 (1986). After exhausting
administrative remedies, a disappointed claimant may
seek judicial review in federal district court, pursuant to
42 U.S.C. § 405(g), which provides, in relevant part:
Any individual, after any final
decision by the Secretary made
after a hearing to which he was a
party, irrespective of the amount in
controversy, may obtain a review
of such decision by a civil action
commenced within sixty days after
the mailing to him of notice of such
decision or within such further time
as the Secretary may allow.
Congress intended the 60–day limitation to prevent
repetitive and belated litigation, Califano v. Sanders, 430
U.S. 99, 108 (1977), but curbed the potential for harsh
results by authorizing the Secretary of Health and Human
Services to extend the period in which review may be
sought. To determine whether an extension is warranted,
the Secretary considers whether circumstances prevented
a timely appeal, whether agency actions misled the
claimant, whether the claimant misunderstood the appeal
process because of amendments, other legislation, or
court decisions, or whether physical, mental, educational,
or linguistic limitations caused the delay. 20 C.F.R.
§ 404.911(a) (1995). As an added protection, district
courts may apply the doctrine of equitable tolling to
extend the statute of limitations in “rare case[s]” where
“the equities in favor of tolling the limitations period
are so great that deference to the agency's judgment is
inappropriate.” Bowen, 476 U.S. at 480–81 (quotation
omitted). The equities have tipped in favor of tolling in
cases where the claimant (i) was unaware that there had
been a violation giving rise to a claim, id. at 481–82,
Dixon v. Shalala, 54 F.3d 1019, 1032–33 (2d Cir.1995),
(ii) rebutted the presumption that notice of the Appeals
Council denial was received within five days, Chiappa
v. Califano, 480 F.Supp. 856, 857 (S.D.N.Y.1979), (iii)
received conflicting information about the filing deadline,
Hernandez v. Sullivan, 91 Civ. 1836, 1991 WL 243451,

at *2 (S.D.N.Y. Nov. 8, 1991), or (iv) was unable to
comprehend the appeal process because of an impediment.
Canales v. Sullivan, 936 F.2d 755, 756 (2d Cir.1991)
(mental impairment); Correa v. Bowen, 682 F.Supp. 755,
757 (S.D.N.Y.1988) (language barrier).
None of the extenuating circumstances heretofore
considered by either the Secretary or the courts are present
here. Plaintiff avers that he failed to file a timely appeal
because the HHS employee did not remind him of the
statute of limitations described in his final notice from
the Appeals Council, and because he mistakenly believed
that he could file in the Social Security district office,
even though the HHS employee and the Appeals Council
letter instructed him to file in federal district court.
(Pl.Mem.Opp'n at 2) In essence, he argues that in addition
to written notification, an oral reminder of the time limit
was required, and that the oral explanation of the proper
place to file was inadequate.
*3 HHS employees should not be required to reiterate
information already clearly conveyed in a written notice.
Cf. Jarrett v. US Sprint Communications Co., 22 F.3d
256, 260 (10th Cir.) (“[w]e reject the notion ... that it
triggers equitable tolling if the district court clerk's office
does not advise plaintiff that the filing fee must be paid
within a specified time”), cert. denied, 115 S.Ct. 368
(1994). Moreover, plaintiff demonstrated that he did not
need such explanations. Following a determination at
each stage of the five-step administrative process, plaintiff
was instructed to proceed to the next stage within 60
days of receiving notice of the decision. Bowen, 476 U.S.
at 472. His consistent compliance with the statute of
limitations during these prior appeals indicates that he
was accustomed to operating under time constraints and
capable of doing so, even when acting pro se. (Monje Aff.
¶¶ 3–5) Although he was accustomed also to filing at the
Social Security district office, the Appeals Council letter
and the HHS employee distinguished the civil suit from
his previous administrative appeals, and instructed him to
file in the United States District Court. (Compl.Ex. A at
1; Monje Aff. ¶ 7) Plaintiff argues further that the “appeal
letter” given to him at the Social Security district office
conveyed the impression that he had already filed. This
impression, however, is contradicted by both the written
and oral information plaintiff received, and perhaps by
the “appeal letter” itself, which is not appended to the
complaint.

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2

Monje v. Shalala, Not Reported in F.Supp. (1995)
Unempl.Ins.Rep. (CCH) P 14818B

Although the process for reviewing disability claims is
“unusually protective” of claimants, Heckler v. Day, 467
U.S. 104, 106 (1984), equitable tolling is inappropriate on
the facts presented here. Accordingly, defendant's motion
pursuant to Fed.R.Civ.P. 12(b)(1) is granted, and the
complaint is dismissed as untimely.

End of Document

SO ORDERED.

All Citations
Not Reported in F.Supp., 1995
Unempl.Ins.Rep. (CCH) P 14818B

WL

540028,

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