Reed v. Everett

Filing 14

REPORT AND RECOMMENDATIONS re 8 Motion to Dismiss filed by Nancy Berryhill, 13 Motion for Leave to File Document filed by Cristina Ruiz Reed, GRANTED 13 MOTION for Leave to File Sur-Reply filed by Cristina Ruiz Reed. The United States Dis trict Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a filing user with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Signed by Judge Elizabeth S. Chestney. (wg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
CRISTINA RUIZ REED,
Plaintiff,
vs.
NANCY BERRYHILL, ACTING
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION
Defendant.

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CIVIL NO.
SA-18-CV-00237-XR

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
To the Honorable United States District Judge Xavier Rodriguez:
This Report and Recommendation concerns Defendant’s Motion to Dismiss [#8]. Also
before the Court are Plaintiff’s Response [#10], Defendant’s Reply [#12], and Plaintiff’s Motion
for Leave to File Sur-Reply [#13]. This case was automatically referred to the undersigned upon
filing, and the undersigned has authority to enter this Report and Recommendation under 28
U.S.C. § 636(b)(1)(B).

Plaintiff’s Motion for Leave to File Sur-Reply is GRANTED as

unopposed pursuant to Local Rule CV-7(e). Further, for the reasons set forth below, it is
recommended that Defendant’s Motion to Dismiss be GRANTED.
I. Procedural Background
This case concerns Plaintiff’s request for review of the administrative denial of her
application for disability insurance benefits and disabled widows’ insurance benefits under Title
II of the Social Security Act (“the Act”), 42 U.S.C. §§ 405(g), 421(d). On July 18, 2017,
Administrative Law Judge (ALJ) Charles L. Brower issued a decision denying Plaintiff’s

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application for benefits. (ALJ’s Decision1 [#8-1] at 7.) Thereafter, Plaintiff requested review of
the ALJ’s decision by the Social Security Appeals Council (“the Appeals Council”). The
Appeals Council denied Plaintiff’s request for review of the ALJ’s decision on December 21,
2017, leaving the ALJ’s decision as the final decision of the Commissioner of Social Security
(“the Commissioner”). (Notice of Appeals Council Action2 [#8-1] at 25.) On March 12, 2018,
Plaintiff filed a pro se complaint [#3] in the United States District Court for the Western District
of Texas, seeking judicial review of the Commissioner’s final decision. Defendant now moves
to dismiss Plaintiff’s appeal as untimely.
II. Analysis
In its motion, Defendant argues that this appeal should be dismissed under Rule 12(b)(1)
of the Federal Rules of Civil Procedure for lack of subject-matter jurisdiction. Defendant
originally claimed that this Court lacks subject-matter jurisdiction to hear this case because
Plaintiff did not file her Complaint in federal court within the sixty-day filing period specified in
42 U.S.C. § 405(g) and 20 C.F.R. § 422.210(c). (Def.’s Mot. [#8] at 1.) In its previous Order
requiring Defendant to file a reply, the undersigned explained that the sixty-day filing period is
not jurisdictional. (Order Requiring Reply [#11] at 3–4.) The undersigned incorporates that
explanation by reference, and Defendant concedes that the sixty-day time limit is not
jurisdictional. (Def.’s Reply [#12] at 1.) Thus, this motion to dismiss is governed by Rule
12(b)(6) not Rule 12(b)(1). Defendant’s motion to dismiss should be granted because it is
untimely and equitable tolling is not warranted in this case.

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The ALJ’s decision is attached as Exhibit 1 to Defendant’s Motion to Dismiss [#8].
The Notice of Appeals Council Action is attached as Exhibit 2 to Defendant’s Motion to
Dismiss [#8].
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A.

Plaintiff’s appeal was filed after the sixty-day deadline for seeking judicial review of
the denial of a Social Security claim.
To survive a Rule 12(b)(6) motion to dismiss, a pleading must contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). To
satisfy the Rule 8 pleading standard, “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The
Supreme Court has clarified that “[a] claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. A court considering a motion to dismiss must accept “all wellpleaded facts as true, viewing them in the light most favorable to the plaintiff.” Martin K. Eby
Const. Co. v. Dallas Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004). But while a court
must accept all of the claimant’s well-pleaded facts as true, it is not bound to accept as true
conclusory allegations or allegations that merely restate the legal elements of a claim. See
Chhim v. Univ. of Texas at Austin, 836 F.3d 467, 469 (5th Cir. 2016) (citing Iqbal, 556 U.S. at
678).
In this case, Defendant urges dismissal of Plaintiff’s claim not for failure to plead
sufficient facts, but rather because the claim is barred by the applicable statute of limitations. “A
statute of limitations may support dismissal under Rule 12(b)(6) where it is evident from the
plaintiff’s pleadings that the action is barred and the pleadings fail to raise some basis for tolling
or the like.” Alexander v. Wells Fargo Bank, N.A., 867 F.3d 593, 597 (5th Cir. 2017) (quoting
Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003)).

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The time limit for seeking judicial review of the denial of a Social Security claim is
governed by 42 U.S.C. § 405(g). Section 405(g), which is made applicable to claims arising
under Title II of the Act by 42 U.S.C. § 421(d), states, in pertinent part, 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 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.
The statute indicates that the sixty-day filing deadline begins to run on the date that notice of the
Commissioner’s final decision is mailed to the claimant. However, the Commissioner has
created at least two sets of allowances for additional time. First, the time for obtaining judicial
review of the Commissioner’s final decision may be extended by the Commissioner “upon a
showing of good cause.” 20 C.F.R. § 422.210(c). The Commissioner was not asked for such an
extension in this case. (Def.’s Reply at 4.)
Second, the Commissioner has interpreted “mailing” in 42 U.S.C. § 405(g) as the date on
which the claimant receives notice of the Appeals Council’s action, and this date is presumed to
be five days after the date on the notice, “unless there is a reasonable showing to the contrary.”
20 C.F.R. § 422.210(c). Thus, the Commissioner has in all instances allowed an additional five
days for instituting a civil action from the date the notice of the Appeals Council’s action is
mailed. The effect of this five-day allowance is that an appeal of the final administrative denial
of a claim for Social Security benefits must be initiated no later than sixty-five days (rather than
sixty days) from the date notice of the Appeals Council’s action is sent to the claimant to be
timely. See, e.g., Fletcher v. Apfel, 210 F.3d 510, 512 (5th Cir. 2000).
On December 21, 2017, the Appeals Council denied Plaintiff’s request for review of the
ALJ’s denial of her claim for disability insurance benefits and disabled widows’ insurance

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benefits. This action by the Appeals Council left the ALJ’s decision as the final decision of the
Commissioner, and Plaintiff had sixty days from receipt of the Appeals Council’s notice to file
the present action. Allowing five days for mailing, the complaint was due in this Court on or
before February 26, 2018,3 but was filed on March 12, 2018. Plaintiff did not file her complaint
until sixteen days after the expiration of the sixty-day filing deadline. Defendant, therefore,
argues that this appeal must be dismissed.
Plaintiff concedes that she has failed to comply with the sixty-day statutory time limit for
filing her petition for review of the administrative denial of her Social Security claim. However,
Plaintiff argues that her failure to timely file should be excused based on equitable factors.
Accordingly, the issue before the Court is whether the doctrine of equitable tolling can rescue
Plaintiff from her failure to comply with the statute of limitations.
B.

Because equitable tolling of the sixty-day filing deadline is not warranted in this
case, Plaintiff’s Complaint should be dismissed as untimely.
As mentioned above, a civil action must be brought within sixty days after the Appeals

Council’s notice of denial of request for review of the ALJ’s decision is received by the
claimant. See 20 C.F.R. § 422.210(c). The sixty-day limitation on seeking judicial review of a
final decision of the Commissioner “is a condition on the waiver of sovereign immunity and thus
must be strictly construed.” Bowen, 476 U.S. at 479. The Commissioner is authorized to toll the
sixty-day limitations period “upon a showing of good cause.” 20 C.F.R. § 422.210(c). 20 C.F.R.
§ 404.911 contains numerous factors that the Commissioner is to consider in determining
whether a claimant has shown that she had good cause for missing a deadline to request review.

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Because February 24, 2018, was a Saturday, Plaintiff had until the following Monday to file her
complaint. See Fed. R. Civ. P. 6(a)(1) (stating that if the last day of a time period in a statute is a
Saturday or Sunday, the period continues to run until the end of the next day that is not a
Saturday or Sunday).
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The Commissioner has chosen not to toll the limitations period in this case. In fact, Plaintiff
made no written request to the Appeals Council for an extension of the sixty-day filing deadline.
(Def.’s Reply at 4.)
Because the Commissioner is authorized to extend the sixty-day limitations period, in
most cases the Commissioner “will make the determination whether it is proper to extend the
period within which review must be sought.” Bowen, 475 U.S. at 480. However, “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.’” Id. (quoting Mathews, 424 U.S. at 330). The Supreme
Court has stated that the purpose of the statute of limitations embodied in Section 405(g) is to
“move cases to speedy resolution in a bureaucracy that processes millions of claims annually.”
Bowen, 475 U.S. at 481. The Fifth Circuit has cautioned that the doctrine of equitable tolling
should be applied sparingly, and that the plaintiff bears the burden of showing that there are
circumstances justifying its application. See Marse v. Dep’t of Health & Human Servs., 999 F.2d
1579 (5th Cir. 1993). “Thus, it is only a rare social security case which will present equities
strong enough to toll limitations.” Id.
This case does not present the requisite compelling equities. Plaintiff has not established
that her case falls within the narrow class of cases in which the equities in favor of tolling the
limitations period are so great that deference to the agency’s determination is inappropriate. See
Bowen, 475 U.S. at 380. Plaintiff makes two arguments in support of her equitable estoppel
defense. First, Plaintiff contends that, although the Appeals Council sent notice of its action
denying her request for review of the ALJ’s decision on December 21, 2017, she did not receive
the Appeals Council’s notice until January 19, 2018. For support, Plaintiff attaches a copy of a
receipt showing that she was a passenger on a January 19, 2018, flight from Orlando, Florida to

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Austin, Texas. (Pl.’s Resp. [#10-1] at 4.) Plaintiff claims that she went to Florida because her
youngest son was admitted to a hospital there. (Pl.’s Sur-Reply [#13] at 1.)
Plaintiff’s trip to Florida is not grounds for equitable tolling.

The Social Security

Administration (“the Administration”), of course, has no control over whether a claimant will be
home on any given day to receive the Appeals Council’s notice. The Administration is under no
obligation to constantly monitor whether a claimant is away from her house and, as a result, not
able to receive mail. The Appeals Council is required to notify a claimant of the action it takes
by mailing notice of its decision to the claimant at her last known address. See 20 C.F.R. §
404.967. The Appeals Council did just that, mailing notice of its action denying Plaintiff’s
request for review of the ALJ’s decision on December 21, 2017, to the Plaintiff’s last known
address. (Notice of Appeals Council Action at 25–31.) In addition, the sixty-day filing deadline
did not expire until February 26, 2018. When Plaintiff returned to Texas on January 19, 2018,
she still had over one month to file her complaint.
Second, Plaintiff alleges that in January 2018, she contacted the Social Security Office in
Kerrville, Texas, to inquire about her application for benefits. (Pl.’s Resp. at 4.) Plaintiff further
alleges that she was informed by an unidentified employee that her case was closed, that there
were no other steps that she could take at that time, and that she could not sue the
Administration. (Id.) As the sixty-day filing deadline did not expire until February 26, 2018,
this would have been an incorrect statement of the law. Thus, the crux of Plaintiff’s argument is
that the Administration gave her incorrect information about her right to file a civil suit in federal
district court and this misinformation justifies tolling the limitations period. See 20 C.F.R. §
404.911(b)(6) (noting that being given misinformation about when or how to file a civil suit can
be good cause for missing the deadline to request review).

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The Court should reject this argument for three reasons. First, Plaintiff did not at any
time seek to get an extension of the sixty-day limitations period from the Administration, as the
November 21, 2017, notice to her specifically advised her she could do. (Notice of Appeals
Council Action at 27.) That Plaintiff did not ask the Appeals Council to extend her time to file
certainly counts against equitable tolling. See Flores v. Sullivan, 945 F.2d 109, 113 (5th Cir.
1991).
Second, the Appeals Council’s notice apprised Plaintiff of her right to appeal the ALJ’s
decision by filing a complaint in the United States District Court for the judicial district in which
she lived.

(Notice of Appeals Council Action at 26–27.)

The Appeals Council’s notice

specifically informed Plaintiff that she had sixty days to file a civil action, that the sixty days
started the day after she received the notice, and that the Appeals Council would assume that she
received the notice five days after the date on it, unless she showed the Appeals Council that she
did not receive it within the five-day period. (Id. at 27.) Plaintiff’s failure to timely file should
not be excused in light of the fact that Plaintiff was provided with clear, detailed, written
instructions on how and when to appeal in the Appeals Council’s notice.
Finally, the Fifth Circuit has long held “that the government cannot be bound by
unauthorized or incorrect statements of its agents.” Heckler, 767 F.2d at 213 (quoting United
States v. Thompson, 749 F.2d 189, 193 (5th Cir.1984)). Thus, the fact that an employee of the
Social Security Office in Kerrville, Texas, may have erroneously informed Plaintiff that she
could not sue the Administration does not estop the government from insisting upon compliance
with the sixty-day filing deadline. And Plaintiff has made no showing of affirmative misconduct
or impropriety on the part of the government. Cf. Bowen, 476 U.S. at 475, 481 (indicating that

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the government’s secretive conduct was a factor in determining that the limitations period was
equitably tolled).
IV. Order and Recommendation
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Leave to File Sur-Reply
[#13] is GRANTED.
Having considered Plaintiff’s Complaint in light of the arguments raised in Defendant’s
motion, as well as the response and reply thereto, the governing law, and the entire record in this
case, the undersigned recommends that Defendant’s Motion to Dismiss [#8] be GRANTED.
V. Instructions for Service and Notice of Right to Object/Appeal
The United States District Clerk shall serve a copy of this report and recommendation on
all parties by either (1) electronic transmittal to all parties represented by attorneys registered as
a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified
mail, return receipt requested. Written objections to this report and recommendation must be
filed within fourteen (14) days after being served with a copy of same, unless this time period is
modified by the district court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The party shall file
the objections with the clerk of the court, and serve the objections on all other parties. A party
filing objections must specifically identify those findings, conclusions or recommendations to
which objections are being made and the basis for such objections; the district court need not
consider frivolous, conclusive or general objections. A party’s failure to file written objections
to the proposed findings, conclusions and recommendations contained in this report shall bar the
party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149–52
(1985); Acuña v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to
file timely written objections to the proposed findings, conclusions and recommendations

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contained in this report and recommendation shall bar the aggrieved party, except upon grounds
of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415,
1428–29 (5th Cir. 1996) (en banc).
SIGNED this 23rd day of October, 2018.

ELIZABETH S. ("BETSY") CHESTNEY
UNITED STATES MAGISTRATE JUDGE

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