Bower v. Colvin

Filing 12

DECISION AND ORDER. The Commissioner's Motion to Dismiss 9 is DENIED. The parties should refer to Local Rule of Civil Procedure 5.5 to determine the filing deadlines for the transcript and dispositive motions in this matter. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 9/14/2017. (AFM)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AMY BOWER,
Plaintiff,
Case # 16-CV-219-FPG
v.
DECISION AND ORDER
NANCY A. BERRYHILL, 1
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Amy Bower (“Plaintiff”) brings this action pursuant to the Social Security Act seeking
review of the final decision of the Acting Commissioner of Social Security (“the Commissioner”)
that denied her Supplemental Security Income (“SSI”) application under Title XVI. ECF No. 1.
On June 22, 2016, the Commissioner moved to dismiss this action pursuant to Federal
Rules of Civil Procedure 12(b)(1) and 12(b)(6). ECF No. 9. The Commissioner argues that this
case must be dismissed because it is untimely pursuant to 42 U.S.C. § 405(g). Id. In opposition,
Plaintiff argues that she is entitled to equitable tolling of the statute of limitations. ECF No. 11.
For the reasons that follow, the Commissioner’s motion to dismiss is DENIED.
BACKGROUND
On October 23, 2015, the Appeals Council denied Plaintiff’s request for review of the
Administrative Law Judge’s (“ALJ”) denial of her SSI claim. ECF No. 1-5, at 1. The Appeals
Council’s letter informed Plaintiff that she had 60 days to file a civil action seeking federal court
review. Id. at 2-3. On December 9, 2015, Plaintiff’s attorney requested that the Appeals Council
grant her more time to file a federal lawsuit. ECF No. 1, at ¶ 2. On March 14, 2016, Plaintiff

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Nancy A. Berryhill is now the Acting Commissioner of Social Security and is therefore substituted for
Carolyn W. Colvin as the defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d).

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commenced this action even though the statute of limitations had expired and the Appeals Council
had not yet responded to her extension of time request. Id. On April 13, 2016, the Appeals Council
denied Plaintiff’s request for more time to file a civil action. 2 ECF No. 9-3, at 25.
DISCUSSION
I.

Motion to Dismiss Standard
“A motion to dismiss on statute of limitations grounds is generally treated as a Rule

12(b)(6) motion to dismiss for failure to state a claim, not a Rule 12(b)(1) motion to dismiss for
lack of subject matter jurisdiction.” Farrell v. Berryhill, No. 16-CV-509-LJV-MJR, 2017 WL
3142097, at *3 (W.D.N.Y. May 16, 2017), report and recommendation adopted, 2017 WL
3141109 (W.D.N.Y. July 24, 2017). In reviewing a Rule 12(b)(6) motion to dismiss, a court “must
accept as true all of the factual allegations contained in the complaint,” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 572 (2007), and “draw all reasonable inferences in Plaintiff’s favor.” Faber v.
Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011). To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible
on its face.” Twombly, 550 U.S. at 570.
II.

Timeliness
A claimant who wishes to appeal the Commissioner’s denial of Social Security benefits

must do so within 60 days after he or she receives notice of the Commissioner’s final decision or
“within such further time as the Commissioner of Social Security may allow.” 42 U.S.C. § 405(g).

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A court ordinarily may not rely on matters outside the complaint when it decides a Rule 12(b)(6) motion
unless it treats the motion as one for summary judgment under Rule 56 and gives the parties a reasonable opportunity
to present relevant evidence. Fed. R. Civ. P. 12(d). However, “the complaint is deemed to include any written
instrument attached to it as an exhibit or any statements or documents incorporated in it by reference. Even where a
document is not incorporated by reference, the court may nevertheless consider it where the complaint relies heavily
upon its terms and effect, which renders the document ‘integral’ to the complaint.” Chambers v. Time Warner, Inc.,
282 F.3d 147, 152-53 (2d Cir. 2002) (quotation marks and citations omitted). Here, Plaintiff’s Complaint specifically
references her extension of time request to the Appeals Council and therefore the Court will consider the Appeals
Council’s subsequent denial letter.

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The 60-day period begins five days after the date on the Notice of Appeals Council Action letter.
See 20 C.F.R. §§ 404.981, 422.210(c).
The Supreme Court has explained that the 60-day limit 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). “This 60-day statute of limitations, however, cannot be read in isolation; it is
contained in a statute that Congress designed to be ‘unusually protective’ of claimants.”
Aschettino v. Sullivan, 724 F. Supp. 1116, 1117 (W.D.N.Y. 1989) (citing Heckler v. Day, 467 U.S.
104, 106 (1984)). “Moreover, Congress itself has authorized the Secretary to toll the 60-day limit
under certain circumstances, thus expressing its clear intention to allow tolling in some cases.” Id.
(quotation marks and citations omitted).
Here, the Commissioner’s decision became final on October 23, 2015, when the Appeals
Council denied her request for review. The statute of limitations began to run five days later, on
October 28, 2015. Therefore, Plaintiff was required to file her complaint by December 28, 2015.
However, Plaintiff did not commence this action until March 14, 2016, and therefore it is
undisputed that she failed to bring this action within 60 days of the Commissioner’s final decision.
Thus, the issue is whether Plaintiff is entitled to equitable tolling.
Plaintiff argues that she is entitled to equitable tolling because she timely requested an
extension of time to file this action and the Appeals Council did not respond until after the statute
of limitations had expired. 3 ECF No. 11 at 14-20. Counsel also asserts that in other Social Security
matters, the Appeals Council has advised him that it routinely grants timely requests for extensions
of time. Id. at 3-4. The Commissioner argues that neither Plaintiff’s timely extension of time

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Plaintiff advances other arguments that she believes warrant equitable tolling of the statute of limitations.
ECF No. 11 at 4-14. However, the Court will not address those arguments because it denies the Commissioner’s
motion based on the Appeals Council’s delay in responding to Plaintiff’s extension of time request.

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request nor the Appeals Council’s delayed response constitute good cause for tolling the statute of
limitations. ECF No 9-1 at 4-8.
The Supreme Court has explained that although equitable relief is extended “only
sparingly,” it is often allowed in situations “where the complainant has been induced or tricked by
his adversary’s misconduct into allowing the filing deadline to pass.” Irwin v. Dep’t of Veterans
Affairs, 498 U.S. 89, 96 (1990) (citations omitted). Thus, although the Commissioner typically
determines whether to extend the time to commence a federal action, “cases may arise where the
equities in favor of tolling the limitations period are so great that deference to the agency’s
judgment is inappropriate,” like when misleading conduct is involved. Aschettino, 724 F. Supp.
at 1117 (quotation marks and citation omitted); see also Wong v. Bowen, 854 F.2d 630, 631 (2d
Cir. 1988) (“Equitable tolling thus far has been allowed only in those cases where the Government
has hindered a claimant’s attempts to exercise [his] rights by acting in a misleading or clandestine
way.”). In some cases, equitable tolling may be appropriate where the claimant timely requests an
extension of time to file a civil action but does not receive a response from the Appeals Council
until after the statute of limitations has expired. See, e.g., Aschettino, 724 F. Supp. at 1117-18;
Rivera-Gonzalez v. Astrue, No. 8:11-CV-172-T-30EAJ, 2011 WL 2434071, at *1-2 (M.D. Fla.
June 16, 2011); Jorgensen v. Colvin, No. 16-CV-1025 (JRT/SER), 2017 WL 431777, at *5-6 (D.
Minn. Jan. 9, 2017), report and recommendation adopted, No. CV 16-1025 (JRT/SER), 2017 WL
424854 (D. Minn. Jan. 31, 2017).
Courts in this district and other circuits have been presented with similar factual scenarios
and have found for and against equitable tolling. See, e.g., Sahu v. Astrue, 321 F. App’x 529, 529
(8th Cir. 2009) (affirming dismissal by the district court because the plaintiff failed to timely file
a civil action after she received an extension of time from the Appeals Council); Korfe v. Astrue,

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No. 09-3163 (ADM/JJG), 2010 WL 2399694, at *2 (D. Minn. May 25, 2010) (granting the
Commissioner’s motion to dismiss where the plaintiff received an extension of time to file her
civil action but then failed to comply with the extension deadline); Vazquez v. Colvin, No. EDCV
14-00910-DFM, 2014 WL 5761133, at *3 (C.D. Cal. Nov. 5, 2014) (refusing to extend the
limitations period where the plaintiff requested more time from the Appeals Council one day
before the statute of limitations expired); but see Aschettino, 724 F. Supp. at 1117-18 (holding that
equitable tolling was appropriate because the plaintiff timely requested an extension of time but
did not receive a response until after the statutory period expired); Rivera-Gonzalez, 2011 WL
2434071, at *2 (holding that equitable tolling was appropriate because the Appeals Council’s
failure to respond to the plaintiff’s extension request suggested that the Commissioner provided
the plaintiff with “misleading information”); Jorgensen, 2017 WL 431777, at *5-6 (holding that
equitable tolling was appropriate because the plaintiff timely requested an extension of time but
did not receive a response until after the statutory period expired).
This case is distinguishable from Sahu, Korfe, and Vazquez and is more factually analogous
to Aschettino, Rivera-Gonzalez, and Jorgensen. Thus, the Court finds the latter cases more
persuasive for its analysis. In Sahu and Korfe, the plaintiffs requested and were granted more time
from the Appeals Council to file a civil action, but they failed to do so within the extension period.
See Sahu, 321 F. App’x at 529; Korfe, 2010 WL 2399694, at *2. In Vazquez, the plaintiff faxed
his request for an extension of time to the Appeals Council merely one day before the limitations
period expired. Vazquez, 2014 WL 5761133, at *3.
Here, like the plaintiffs in Aschettino, Rivera-Gonzalez, and Jorgensen, Plaintiff timely
requested an extension of time to file her federal action. See Aschettino, 724 F. Supp. at 1117;
Rivera-Gonzalez, 2011 WL 2434071, at *1; Jorgensen, 2017 WL 431777, at *5. Also like the

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plaintiffs in those cases, Plaintiff did not receive a response from the Appeals Council until several
months after the 60-day limitations period had expired. See Aschettino, 724 F. Supp. at 1117-18
(Appeals Council denied extension of time request nearly five months after the statute of
limitations expired); Rivera-Gonzales, 2011 WL 2434071, at *2 (Appeals Council had not
responded to extension of time request as of the date of the court’s decision, which at that time
was about five months after the statute of limitations expired); Jorgensen, 2017 WL 431777, at *2
(Appeals Council denied extension of time request over four months after the statute of limitations
expired).
Moreover, the operative language in the Appeals Council’s letter denying review of the
ALJ’s decision is the same here as it was in Rivera-Gonzalez and Jorgensen. The letters state that
the claimant may ask for more time to file a federal action and that the Appeals Council “will send
you a letter telling you whether your request for more time has been granted.” ECF No. 9-3 at 21;
Rivera-Gonzalez, 2011 WL 2434071, at *1; Jorgensen, 2017 WL 431777, at *5.
The Rivera-Gonzalez court reasoned that this language “suggests that the Appeals Council
will respond to the request and is silent on the issue of whether the appeal should be filed during
the pendency of the request.” Rivera-Gonzalez, 2011 WL 2434071, at *1. The court concluded
that the Appeals Council’s failure to respond to the plaintiff’s extension of time request, especially
given the language in the denial letter which “implies that the Appeals Council will consider the
request and provide notice of its decision,” suggested that the Commissioner provided the plaintiff
with “misleading information.” Id. at *2. Similarly, the Jorgensen court concluded that it is
“reasonable to find this language misleading” and that “one could assume from this language that
the [Appeals Council] would provide a timely response.” Jorgensen, 2017 WL 431777, at *5.

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Accordingly, in light of Plaintiff’s timely extension of time request, the Appeals Council’s
delayed response, the language in the Notice of Appeals Council Action letter, and the cases
discussed above, the Court concludes that Plaintiff is entitled to equitable tolling.
CONCLUSION
For the reasons stated, the Commissioner’s Motion to Dismiss (ECF No. 9) is DENIED.
The parties should refer to Local Rule of Civil Procedure 5.5 to determine the filing deadlines for
the transcript and dispositive motions in this matter.

IT IS SO ORDERED.
Dated: September 14, 2017
Rochester, New York
________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court

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