WILLIS v. COLVIN
Filing
12
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 1/30/2017; that the Commissioner's motion to dismiss (Docket Entry 7 ) be converted to a motion for summary judgment, be GRANTED, and that this action be dismissed. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
MICHAEL RAY ìøILLIS,
)
)
)
Plaintifl
)
V
1:16CV51
)
)
)
)
)
)
)
N,{.NCY BE,RRYHILL,
Acting Commissioner of Social
Secutity,\dminis tration,
Defendant.
MEMORANDUM OPINION AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Plaintiff, Michael Ray \X/illis, brought this action to obtain judicial review of a ftnal
decision of the Commissioner of Social Security denying his claims for a period of disability,
Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles
II
and
XVI of the Social Security ,\ct ("the Act").t Pending before the Court is Defendant's
motion to dismiss Plaintiffs Complaint as time-barred. Q)ocket E.rtty 7.) Plaintiff has not
filed a respoflse. For the reasons stated hetein, the Court recommends that Defendant's
motion to dismiss be converted to
a
motion for summary judgment, and be granted.
1 Nancy Berryhill recently became the Acting Commissioner of Social Security, Putsuant to Rule
25(d) of the Federal Rules of Civil Procedure, Nancy Betryhill should be substituted for Carolyn W.
Colvin as Defendant in this suit. No furthet action need be taken to continue this suit by reason of
the last sentence of section 205(9) of the Act, 42 U.S.C. $ a05G).
1
I.
BACKGROUND
On Februaty 3,201,2, Plaintiff filed applications fot DIB and SSI. (Docket Entry 8-1
at 8.)
Plaintiffs claims were denied initially and upon reconsiderat:on. Qd.) Plaintiff thereafter
tequested aheanngbefore an Administtative LawJudge
('ALJ'). Qd) A hearing was held on
June 18, 201,4. (Id.) The ALJ issued an unfavorable decision on September 15, 2014. (Id. at
8-17.) Plaintiff thereafter sought teview of the decision by the Appeals Council. This decision
became the final administative decision after the Appeals Council declined review on
November 5,201,5. Qd. at23-26.) The Denial Notice from the Appeals Council also informed
Plaintiff of his right to file a civil action for review of the ALJ decision, and the ptoper
procedure to file such action in the judicial district where Plaintiff lives. (Id. at 24-25.)
It
further stated that he had "60 days to file a civil action" and [t]he 60 days start[ed] the day aftet
[Plaintiffl receive[d] [the] letter." (Id. at 25.)
If Plaintiff
needed an extension of time to file
his civil action, he could seek an extension from the Appeals Council. (//.)
On January 20,201.6, Ptaintiff filed an appücation to proceed in þrma paaperis, along
with the Complaint for review of the ALJ's decision denying his disability benefits. Q)ocket
Entries 1,
2.)
The Court thereafter granted Plaintiff IFP status pocket Ettry 4), and
summons was issued for Defendant. (Docket Entry
a
5.) Defendant then filed the pending
motion to dismiss Plaintiffs Complaint as time-batred. Q)ocket Entry 7.)
II.
DISCUSSION
1,. Relevant Standard of Review
Defendant contends that Plaintiffs complaint should be dismissed because Plaintiff
did not institute this civil action until the time to do so expired. (Docket Etttty
2
I
at 2.)
Atthough not specifically refetenced
in
Defendant's motion, "[a] motion
to
dismiss
a
complaint as untimely is generally brought under Rule 12þ)(ó)."). Derosa u. Coluin, No. 5:14CV-41,4-FL,201,4WL 5662771, atxl, (E,.D.N.C. Nov. 4, 2014) (citation omitted). In support
of het motion to dismiss, Defendant relies upon the declaration of I(athie Hartt (and attached
exhibits), an employee of the Office of Disability Adjudication and Review. (Docket Entty 81,
at 1.-4.) This document is not referenced in the Complaint, thus, this motion should be
converted to a motion for summary judgment. Id. at x2 (citation omitted) ("Because these
documents frelating to the date that the Appeals Council Notice was sent] contain information
not referenced in the complaint, the court cannot consider them under the Rule 12þ)(6)
standard.");
see
also ll/oods u. Coluin,
No. 1:15CV763,2016WL
1,328951.,
atx2 $a.D.N.C. Apt.
5,2016) (citing Fed. R. Civ. P. 1,2(d) ("Because these documents contain information not
tefetenced in the Complaint, the Commissionet's Motion to Dismiss should be converted into
a motjon
for summary judgment.")).
"rù(/hen converting a
for summary judgment, [a]ll parties must be given
motion to dismiss into a motion
a reasonable
oppottunity to present all the
matetialthatis pertinent to the fconverted] modon." Il/0nds,201,6WL1,328951.,atx2 (tntenal
quotations and citation omitted). By Order dated January 12,2017, the Courtinformed the
parties
of its consideration to construe Defendant's motion to dismiss as a motion for
summary judgment, and further permitted Plaintiff additional time to respond to Defendant's
motion. Q)ocket Entry 11.) Plaintiff has not fi.led
a response. The undersigned therefore
concludes that Plaintiff "has been affotded a 'reasonable opportunity' to ptesent materials
relevant
to þis] response to the Commissioner's modon," and finds that the Cout should
convert Defendant's motion to dismiss as a motion for summary judgment. Deron,201'4WL
J
5662771",
atx2;
¡ee also
lØoodt,2016
WL
L328951., at
*3 (converting motion to dismiss into
summary judgment motion after Plaintiff was given a teasonable opportunity to respond)'
2.
Summarv ludsment Standard
Summary judgment is apptopriate when thete exists no genuine issue of material fact and
the moving party is entitted to judgment as a matter of law. Fed. R. Civ. P. 56(c); Zahodnicþ'
a.
Int'lBus. Machs. Corþ.,135 F.3d 911,91.3 (4th Cir. 1,997). The party seeking summaly judgment
bears the initial burden
of
of coming forward and demonsuating the absence of a genuine
issue
material fact. Temkin u. Frederick Counlt Comm'rs, g45 F.2d 71.6,71.8 (4th Cir. 1'991) (citing
-
Celotex u. Catrett, 477
U.S. 31,7,322 (1986)). Once the moving party has met its butden, the
non-moving party must then affirmatvely demonsttate thatthete is a genuine issue of matetial
fact which requires
tiaI.
Mat¡u¡hita Elec. Indas. Co. Ltd. a. Zenith Radio Corp., 475 U.S. 574,587
(1986). There is no issue for trial unless thete is sufficient evidence favoring the non-moving
parr¡ for a fact finder to return
a
verdict f.or thatp^rty. Anderson
u.
Libenl Lnbþl lnc.,477 U.S.
242,250 (1986); $luia Deu. Corp. u. Caluert Coanfii, Md.,48 F.3d 810, 81,7 (4th Cir. 1995). Thus,
the moving party can bear his burden eithet by ptesenting affirmative evidence or by
demonstrating that the non-moving parry's evidence is insufficient
Celotex,
477 U.S.
to establish his claim.
at 331 (Brennan, dissenting). \ü/hen making the summary iudgment
determination, the Court must view the evidence, and all justifiable inferences from the
evidence,
in the light most favorable to the non-moving party. Zahodnick,135 F.3d at
Haþerin
Abacas Tech. Corp., 128 F.3d
a.
1,91,, 1,96
91.3;
(4th Cir. 1.997). However, the patty opposing
summary judgment may not fest on mere allegations ot denials, and the court need not consider
4
"unsupported assertiolls" or "self-serving opinions without objective corroboratiofi," EuanÍ
Techs.
a.
Application¡ dy Seru. C0.,80F.3d954,962 (4thCu.1.996);Anderson,477 U.S. at248-49.
3.
Time for Appeal of the Commissioner's Final Decision
Section a05(g) of the Act provides, in relevzlnt
p^rti "[a]ny individual, after any fnal
decision of the Commissioner of Social Security made after. a hearing to which he was
^
pafty,
irespective of the amount in controversy, may obtain a review of such decision by a civil
action
commenced within sixtlt
day after the nailing to him of notiæ of such decision or within such further
time as the Commissioner of Social Security may allow." 42U.5.C. $ a05(g) (emphasis added).
The sixty day requirement is not jurisdictional and is subject to equitable tolling. Bowen
of NewYor,þ,,476 U.S. 467,
a. Cìt1
478-80 (1986). This limitations period has been modified by the
Commissioner's regulations so that it begins only upon receipt of the notice, r:;r},er than upon
its mailing.
See
20 C.F.R. $ 422.21,0(c). Social security regulations pertaining to judicial teview
ptovide:
Any civil action fseeking judicial review of a decision by an [ALJ] if the Appeals
Council has denied the claimant's request for review] must be instituted wrthin
60 days after the Appeals Council's notice of denial of request for review of the
[ALJ"] decision or notice of the decision by the Appeals Council is received by
the indiyidual, institution, ot agency, except that this time may be extended by
the Appeals Council upon a showing of good cause. Fot putposes of this
section, tlte date of reætpt of notice of denial of reqøe$ þr reuiew of tlte presiding ffiærl
deci¡ion or notice of the dedion þt the Appeal¡ Coandl thall be presøned to be 5 day after
the date of søch notice, an/ess there
i¡
area¡onab/e showingto the conlrary.
20 C.F.R $ a22.21,0(c) (emphasis added). Thus, the regulations provide that the date of receipt
of notice is presumed to be five days after the date of such notice and a plainrtf.f. can rebut this
presumption by making a "reasonable showing to the conttary" that he did not receive notice
within five days. Id.
If
the plaintiff successfully rebuts the presumption, the butden shifts to
5
the Commissioner to show that the plaintiff received actual notice of the Commissioner's
decision. Maßibekker
.
u.
Heckler,73ï F.2d79,81' (2nd Cir. 1,984).
The sixty-day time period may be equitably tolled undet certain circumstances.
Bowen,476 U.S.
See
at 480 (rolding that "traditional equitable tolling principle[s]" upply to the
sixty-day requirement). In most cases, the Commissioner detetmines whether to extend the
sixty-day period, but a court may step in and extend the pedod in cases whete the equities in
favor
of tolling the sixty
(60) days show that deference
to the agency's judgment
is
inappropriate. Id, The application of equitable tolling is appropdate only in me or exceptional
circumstances. Id. at 480-81 (upplyt"g equitable tolling where the agency engaged in engaged
in "secretive conduct");
rce also
Hlatt
u. Heckler,807
F.2d 376,381. (4th Cir, 1986) (finding
equitable tolling applicable where the Social Security Administtation had a "clandestine policy"
of not following the law of the circuit where the claim arose). The Fourth Circuit has
cautioned that tolling the limitations period "will tarely be appropriate." H1att,807 F.2dat
378.
Here, the decision of the Appeals Council denying review in Plaintiff s case was dated
November 5,2015. The
Hatt
declatation indicates thata copy of the Appeals Council notice
was sent to Plaintiff at his address
of record on November 5, 2015. (Docket Entry 8-1 at 3.)
Counting the five-day receipt provision, Plaintiff had until Jannary 1.1, 201.6
to file
his
Complaint for judicial review.2 The Complaint was not filed in this Court until January 20,
2 The 65th day to file this civil action was Saturday,Jznuary 9,2016. Thus, the deadline to fi.le the
Complaintwas the followingMonday. Sl,eFed. R, Civ. P. 6(aX1XC) ('[]f the last day lof a computed
time] is a Saturday, Sunday, or legal holiday, the period conlinues to run until the end of the next day
that is not a Saturday, Sunday, or legal holiday,"),
6
2016. Plaintiff has failed to make the necessary showing to rebut the ptesumption that he
received the notice
from the Appeals Council ,r/ithin five days of its mailing. His Complaint
was filed nine (9) days after the January 11.,20L6 deadline. Thus, Plaintiff s Complaint was
not filed in a timely manner. Furthermore, the circumstances in this
equitable
case
do not justi$r
tolling. There is no evidence that Plaintiff asked Defendant to enlarge Plaintiffs
time to file his compiaint,3 nor is there evidence of extraordinary circumstances sufficient to
waffant the application of.equitable tolling. In sum, absent a genuine issue of material fact
as
to the untimeliness of Plaintiffls Complaint, Defendant's motion should be granted.
III.
CONCLUSION
For the reasons stated herein,
Commissioner's motion to dismiss
IT IS HEREBY RECOMMENDED
pocket Entry 7) be converted to a motion fot
that the
summaqr
judgment, be GRANTED, and that this action be dismissed.
L ïftùc¡er
Suær !&gi¡t¡rtÊJudBc
January 30,201.7
Durham, Notth Carcltna
3 In her declaration, Hartt indicates that she is also not aware
this civil action made by Plaintiff. pocket Entry 8-1 at 3.)
7
of
any request f.ot an extension
to file
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?