Parker v. Colvin

Filing 19

ORDER, entered and filed 2/14/17 OVERRULING Plaintiff's objections to the Magistrate Judge's 16 Report and Recommendation (R&R); ADOPTING the R&R in its entirety. The Court GRANTS Defendant's 4 Motion to Dismiss for Lack of Jurisdiction, and this case is DISMISSED WITH PREJUDICE, as outlined. (See Order and Foot Notes for Specifics) (Signed by District Judge Henry C. Morgan, Jr. on 2/14/17). Copies provided as directed 2/15/17. (ecav, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
Norfolk Division

RICHARD PARKER,
Plaintiff,
V.

Civil Action No. 2:15cv533

CAROLYN W. COLVIN

ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.

OPINION & ORDER

This matter is before the Court on Plaintiff Richard Parker's ("Plaintiff) Objections to

the Report and Recommendation ("R&R") of the Magistrate Judge, Doc. 17, and on Defendant
Carolyn W. Colvin's ("Defendant") Motion to Dismiss for Lack of Jurisdiction, Doc. 4. For the

reasons below, the Court OVERRULES Plaintiff's objections to the R&R and ADOPTS the

R&R, Doc. 16, in its entirety. The Court GRANTS Defendant's Motion to Dismiss for Lack of
Jurisdiction, Doc. 4, and this case is DISMISSED WITH PREJUDICE.
I.

BACKGROUND

Plaintiff does not object to the recitation of the procedural and factual background of this

case contained in the R&R, which sets forth, inter alia, the following facts. ^

Doc. 17 at 1. On

August 19, 2011, Plaintiff filed an application for disability insurance benefits ("DIB") with the

Social Security Administration ("SSA").

R&R at 2.

On December 14, 2011, Plaintiffs

application was denied. Id On April 25, 2012, Plaintiff filed a request for a hearing before an
Administrative Law Judge ("ALJ").

]d

On April 17, 2013, the ALJ denied Plaintiffs

application. Id On April 30, 2013, Plaintiffappealed the ALJ's decision to the Appeals Council
1

for the Office ofDisability Adjudication and Review ("Appeals Council"). R. 182.' On May 10,
2014, the Appeals Council notified Plaintiffthat it remanded Plaintiff's case to the ALJ. R. 11720. On July 16, 2014, the ALJ conducted a rehearing of Plaintiffs case. R. 14. On August 27,

2014, the ALJ again found that Plaintiff was not entitled to DIB. R. 11-24. On September 8,
2014, Plaintiffagain appealed the ALJ's decision to the Appeals Council. R. 10. On September
30, 2015, the Appeals Council issued a Notice of Appeals Council Action ("Notice") denying
Plaintiffs appeal. R. 1-5.

The Notice, dated September 30, 2015, was addressed to Plaintiff and "copied" to his

counsel. R. 1,3. The Appeals Council mailed the Notice to Plaintiffand his counsel. PL's Aff.
UK 2-3; Carr Aff 12. Plaintiffs home address is Norfolk, Virginia (23502), R. 1, and his
counsel's work address is Norfolk, Virginia (23510), R. 3. The Notice informed Plaintiff of the
Appeals Council's denial of his appeal and the sixty-day time period for filing a civil action. R.
2-3. The Notice specified, "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." R. 2. Furthermore, the Notice advised Plaintiff that he could file a

written request for an extension of time to file a civil case. R. 3} Plaintiff has not alleged that
he or his attorney sent such a request. ^

Doc. 5 at 5; PL's Aff.

2-3. Five (5) days after

September 30, 2015 was October 5, 2015. Sixty (60) days after October 5, 2015 was December
4,2015. Plaintiff filed the Complaint in this Court on December 7,2015. Doc. 1.
On March 8, 2016, Defendant filed a Motion to Dismiss for Lack of Jurisdiction alleging

' "R" refers to the Certified Administrative Record.

^TheNotice said.
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.
R.3.

that this Court lacks subject matter jurisdiction over Plaintiffs untimely Complaint. Doc. 4 at 1.
Plaintiffopposed the Motion to Dismiss, claiming that he has made a "reasonable showing" that
his receipt of the Notice extended the time for filing this action or, in the alternative, that
equitable tolling should apply. Doc. 11 at 3, 5-6.

On July 26, 2016, the Magistrate Judge entered his R&R RECOMMENDING that the
Court GRANT the Motion to Dismiss. Doc. 16. Plaintiff filed his objections to the R&R on

August 4, 2016, Doc. 17, Defendant responded on August 12, 2016, Doc. 18, and this matter is
now ripe for the Court's consideration.
II.
A.

STANDARD OF REVIEW

Review of the R&R

The Court reviews ^ novo any part of a Magistrate Judge's R&R to which a party has

properly objected. Fed. R. Civ. P. 72(b)(3). The Court may "accept, reject, or modify the
recommended disposition; receive fiirther evidence; or return the matter to the magistrate judge
with instructions." Id As to the unchallenged portions of the R&R, the Court "must 'only
satisfy itself that there is no clear error on the face of the record in order to accept the
recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co.. 416 F.3d 310, 315 (4th Cir.

2005) (quoting Fed. R. Civ. P. 72 advisory committee's note). The R&R has no presumptive
weight, and the Court remains responsible for making a final determination. See Mathews v.
Weber. 423 U.S. 261, 269 (1976).

Objections to an R&R must be "specific and particularized" to "train[ ] the attention of

both the district court and the court of appeals upon only those issues that remain in dispute after
the magistrate judge has made findings and recommendations." United States v. Mideette. 478
F.3d 616, 621 (4th Cir. 2007). If a party makes an argument in his pleadings but does not object

to the R«S:R on those grounds, the party has waived his right to appeal that issue. ^

jd at 622.

("[T]o preserve for appeal an issue in a magistrate judge's report, a party must object to the
finding or recommendation on that issue with sufficient specificity so as reasonably to alert the
district court of the true ground for the objection.").
B.

Time for Filing a Civil Action

Under Section 405(g) of Title 42 of the United States Code,

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 ftirther time as the Commissioner of Social Security may allow.

42 U.S.C. § 405(g). The Commissioner has authority to "make rules and regulations" based on
this statute. § 405(a). The corresponding regulation dictates that a civil action must be filed
"within 60 days after the Appeals Council's notice of denial of request for review... or notice of
the decision by the Appeals Council is received by the individual..., except that this time may
be extended by the Appeals Council upon a showing of good cause." 20 C.F.R. § 422.210(c).
Without such an extension, "[e]ven one day's delay in filing the action is fatal." Davidson v.
Sec, of HEW. 53 F.R.D. 270,271 (N.D. Okl. 1971).

Receipt of an Appeals Council denial notice is presumed five (5) days after the date of
the decision. 20 C.F.R. § 422.210(c); Cook v. Comm'r of Soc. Sec.. 480 F.3d 432, 436 (6th Cir.
2007) (holding that "the 60-day period begins five days after the date of the denial notice," not
after the notice is mailed).
/.

Rebuttal ofPresumption ofReceipt

a. Sufficiency of Rebuttal Evidence

A claimant can rebut the presumption of receipt within five (5) days of the Appeals
Council's decision if he makes a "reasonable showing to the contrary." Id "[T]he plaintiff's

burden is not to make an impregnable showing but only a reasonable one." Pettwav v. Bamhart.
233 F. Supp. 2d 1354, 1358 (S.D. Ala. 2002).

The Court must conduct a fact-specific inquiry.

"[A] plaintiff must present some

affirmative evidence indicating that actual receipt occurred more than five days after issuance."
Marte v. Aofel. 1998 WL 292358, at *1 (S.D.N.Y. June 3, 1998). The affirmative evidence need

not be a specific date of receipt of the denial notice, but "[cjourts have repeatedly concluded that
a bald denial of timely receipt by the plaintiff and/or her attomey, even if made under oath, is
insufficient

" Pettwav. 233 F. Supp. 2d at 1356. "[I]t is fairly well-accepted that affidavits

that merely state a date of receipt more than five days after the Appeals Council's notice, or

allege non-receipt within the five days, are not sufficient, standing alone, to rebut the
presumption." McLaughlin v. Astrue. 443 F. App'x 571, 574 (1st Cir. 2011); McCall v. Bowen.

832 F.2d 862, 864 (5th Cir. 1987). Claimants must support their contentions with facts or
extrinsic evidence. Pettwav. 233 F. Supp. 2d at 1356. In general, "[c]ases ruling a claimant
satisfied the 'reasonable showing' requirement of § 422.210(c) have required evidence

demonstrating the plaintiffs lack of receipt." Ashcraft v. Astrue. No. 5:llcvl44, 2012 WL
1231789, at *3 (W.D. Ky. Apr. 12,2012) (citing Pettwav. 233 F. Supp. 2d at 1357 n.5).

If a claimant shows that the Appeals Council's denial notice was not mailed until five (5)

days after the notice date or it was mailed to the wrong address, the claimant can rebut the
presumption. McLaughlin. 443 F. App'x. at 574; s^ Matsibekker v. Heckler. 738 F.2d 79, 81
(2d Cir. 1984). Even if a claimant shows that a denial notice was not mailed until after the date

printed on the notice, he does not automatically rebut the presumption.

Williams v. Colvin.

No. I:14cv218, 2015 WL 5120790, at * (N.D. Fla. Aug. 27, 2015); Davila v. Bamhart. No. 02

CIV. 194 (DLC), 2002 WL 484678, at *1 (S.D.N.Y. Apr. 1, 2002). If, however, the claimant
shows that the denial notice was not mailed until more than five (5) days after the date stamp, he
can rebut the presumption. See Matsibekker. 738 F.2d at 81; McCall. 832 F.2d at 864.

Courts have considered cases in which various lengths of time passed between the notice

date and alleged receipt. In Cook, the Sixth Circuit held that a claimant who averred receipt of
the denial notice "sometime 'in August of 2005'" had not rebutted the presumption that he had
received it within five (5) days of its date of August 1, 2005. 480 F.3d at 436-37. In McCall.
the Fifth Circuit held that the claimant's and attorney's affidavits denying receipt of notice until

seventy-five (75) days after the presumptive period of receipt were insufficient to rebut the
presumption of receipt within five (5) days. 832 F.2d at 864. The affidavits needed support

from a "more concrete showing that the plaintiff or her attorney actually did not receive the
[denial] notice within five days of the date of mailing." Id,

A claimant's knowledge or recollection of his receipt of notice can also impact the
presumption of receipt within five (5) days of the notice date. In McLaughlin, the First Circuit
found that the claimant had "provided an explanation for why she was sure that receipt had
occurred after [the presumptive receipt period] and submitted evidence in support." 443 F.
App'x. at 574. She averred in her affidavit that

although she could not remember the exact date that she had received the Appeals
Council's notice, she nonetheless was sure that receipt had not occurred until after
April 21. As for why she was sure, claimant essentially explained that she had
spoken with counsel on either Monday or Tuesday, May 3 or May 4, regarding a
possible appeal... and would not have waited more than a "few days" after
receipt to speak with counsel.
Id. at 572-73. Her attorney also submitted a copy of the denial notice her office had date-

stamped upon receipt. Id at 572. Also finding a rebuttal of the applicable presumption, the

Pettwav court examined and discounted the claimant's affidavit, which simply stated "how she

[was] able to remember" the day she received the denial notice eleven (11) months before: she
alleged it was Halloween. 233 F. Supp. 2d at 1356-57. The court instead relied on counsel's

affidavit and representations "as to [counsel's] mail clerk's responsibility and training," which
made counsel's date-stamped copy of the denial notice reliable and claimant's showing
"reasonable." Id at 1359 (noting that "the failure to show an office practice of date-stamping
materials on the day received might suggest an increased chance of delayed stamping"). In
Salter. the district court held that the claimant rebutted the applicable presumption because she

submitted both "evidence that her attorneys received notice after the five-day window" and a
notice "partially incorrectly addressed" to her. Salter v. Colvin. No. 4:12cv888, 2014 WL
1280269, at *7 (N.D. Ohio Mar. 27,2014). Without this evidence, the claimant's statement "that

she ha[d] no knowledge when or if she received" the notice, despite her admission of
infrequently checking her mail, would have been insufficient. Id at *6.

The Brown court considered whether the claimant's attorney's evidence could rebut the
presumption for the claimant. ^

Brown v. Comm'r of Soc. Sec.. No. 14-12525, 2015 WL

5655870, at *3 (E.D. Mich. Sept, 25, 2015). As in the instant case, the issue was "whether a
date-received stamp, stamped on the Notice by Plaintiffs attorney's legal assistant upon receipt,
is 'actual evidence' that Plaintiff received the Notice after the five days, thus rebutting the
presumption." Id The claimant stated that he "ha[d] no records, whatsoever, indicating the date

the denial was received by him[,]" and the district court held that he failed to rebut the applicable
presumption because he "failed to set forth any evidence, affidavit or otherwise, that indicated if

or when he, himself, received the Notice[,]" much less that he received it af^er the presumptive
date. Id.

b. Whose Receipt Matters

The Circuits are split on whether a claimant's attorney's late receipt of an Appeals
Council Notice can extend the time for filing a complaint. ^

Chamberlain v. Colvin. No.

4:15cv31, 2016 WL 2609578, at *2-3 (N.D. Ind. May 5, 2016). The First, Fifth, and Sixth

Circuits have highlighted the statutory language's reference to "you," meaning the claimant, not
his attorney. S^ Cook. 480 F.3d at 436; Franks v. Apfel. 185 F.3d 866, No. 98-15948, 1999

WL 362901, at *1 (9th Cir. May 20, 1999); Flores v. Sullivan. 945 F.2d 109, 111-12 (5th Cir.
1991); Ashcraft> 2012 WL 1231789, at *3 (noting the "near unanimity among the various circuit
and district courts that 'individual' [in the Social Security Act] does not mean a claimant's

attorney"). By contrast, the Eighth and Ninth Circuits have held that "notice received by either
the individual or the individual's attorney, whichever occurs first, triggers the sixty-day

limitations period." Bess v. Bamhart. 337 F.3d 988, 990 (8th Cir. 2003); see Fista v. Comm'r of
Soc. Sec.. 141 F.3d 1175, at *1 (9th Cir. 1998) (unpublished decision); see also Leetch v.

Sullivan. No. C90-1027J, 1991 WL 259261 (D. Wyo. Aug. 1, 1991). Still other courts have held
that the date counsel receives the Appeals Council Notice is the date from which the limitations
period runs. Allen v. Colvin. No. 2:13cvl366, 2015 WL 3902832, at *3 (E.D. Cal, June 24,
2015) (collecting cases).

//.

Equitable Tolling

The sixty-day time limit for filing "is not jurisdictional, but rather constitutes a period of

limitations." Bowen v. City of N.Y.. 476 U.S. 467, 478 (1986). "[I]t is a condition on the
waiver of sovereign inmiunity and thus must be strictly construed." Id at 479. Equitable tolling

is appropriate when "exceptional circumstances" exist, Gibbs v. Bamhart. No. 2;04cv0056, 2005
WL 283205, at *2 (W.D. Va. Feb. 7, 2005), but this situation is rare, Hvatt v. Heckler. 807 F.2d

8

376, 378 (4th Cir. 1986). "[A] litigant seeking equitable tolling bears the burden of establishing

two elements: (1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way." Pace v. DiGuelielmo. 544 U.S. 408,418 (2005).

Equitable tolling generally applies "only where a plaintiff has actively pursued her

judicial remedies by filing a defective pleading during the statutory period, or was tricked into
allowing the sixty-day deadline to pass by some agency misconduct. Equitable tolling does not
extend to 'a garden variety claim of excusable neglect.'" Reeves v. Colvin. No. 6:12cv27, 2014

WL 2573049, at *5 (W.D. Va. June 9, 2014). In addition, "the lack of diligence is clear" when

an attorney has not requested an extension to file a civil action. 443 F. App'x at 574. A lack of
diligence forecloses the application of equitable tolling, but it does not affect whether the receipt
of presumption within five (5) days has been rebutted. Id
HI.
A.

ANALYSIS

Introduction

Plaintiff alleges that the Complaint was timely because he rebutted the presumption that
he received the Notice on October 5, 2015. Doc. 17 at 2. Plaintiff submitted three (3) items in

support of his position on receipt: (1) Plaintiffs affidavit; (2) his attorney's copy of the Notice
date-stamped "Get 08 2015;" and (3) an affidavit from his attorney's secretary, Kala Carr,
concerning her duties to date-stamp incoming mail.

PL's Aff.; Doc. 11, Ex. B; Carr Aff.

According to Plaintiff, the sixty-day time limit did not begin to run until his attorney received the
Notice on October 8, 2015. Doc. 17 at 4. "While Mr. Parker did not aver that he had failed to

receive the Appeals Council's notice prior to October 5, 2015, he provided an explanation for
why he was sure that receipt had occurred after October 5, 2015...." Id Plaintiffs sworn
affidavit states in pertinent part,

I am unable to recall the date of receipt of the Notice of Appeals Council action,
but I have no reason to believe that I received the Notice any earlier than my
attorney did, particularly, since I live in Norfolk, Virginia and my attorney's
office is located in Norfolk, Virginia.
Doc. 11, Ex. A. Ms. Carr further stated, "I would only put that date stamp on the Notice of
Appeals Council Action if it was in fact received on that date." Id. H2.

Defendant counters that Plaintiff has not rebutted the applicable presumption. Doc. 18 at
2. "Plaintiff does not remember when he received the notice, nor does he definitively recall

receiving notice outside the presumptive period." Id at 3-4. "[0]utside Plaintiffs supposition,
the only evidence of receipt of the notice arises solely from his attorney." Id at 2. Defendant
argues that courts have accepted an attorney's positive averment of receipt as sufficient when the

claimant had a mental impairment that prevented him from "recalling when or whether he

received the notice." Id at 6 (citing Phillips v. Astrue. No. cl 1-0503, 2011 WL 6753089, at *3
(W.D. Wash. Nov. 29, 2011)).

Here, however, claimant has not alleged that a mental

impairment affected his receipt of the notice. Id Defendant therefore argues that the Complaint
is untimely because it was filed more than sixty-five (65) days after the date of the Notice. Id at
6-7.

B.

Plaintiffs Complaint Was Untimely

It is undisputed that the Notice is dated September 30, 2015. R. 1. Receipt is thus

presumed to have occurred on October 5, 2015, and the sixty-day limitations period expired on
December 4, 2015. See 20 C.F.R. § 422.210(c). Plaintiffs complaint, filed on December 7,

2015, is late^ unless Plaintiff has rebutted the applicable presumption. S^ id
First, this Court has not adopted the minority position that an attorney's late receipt of a

^IfPlaintiff's deadline had fallen on a Saturday orSunday, Plaintiff could file his Complaint on Monday, December
7, 2015. McLaughlin v. Astrue. 443 F. App'x 571, 573 (1st Cir. 2011). However, December4, 2015 was a Friday.
The Complaint is therefore three (3) days late.
10

denial notice is sufficient to rebut the presumption of the claimant's receipt within five (5) days
of the notice date. See R&R at 8. Therefore, this Court applies the majority principle that "the

non-receipt by the claimant, not the claimant's attorney, controls the five-day presumption."
Ashcraft. 2012 WL 1231789, at *3.

Consequently, Plaintiffs submissions are insufficient to rebut the presumption of receipt
on October 5, 2015. Plaintiff notes that he does not remember when he received the Notice, but

he "ha[s] no reason to believe that [he] received the Notice any earlier than [his] attorney did"
because the Notice was sent to their respective addresses in Norfolk. Doc. 11, Ex. A T| 3. Unlike
the McLaughlin and Pettwav claimants, however, Plaintiff has not offered any specific and
credible information as to how he knows the Notice must have arrived after October 5, 2015.

See 443 F. App'x at 572-73. Further, no evidence exists to demonstrate that Plaintiff suffers
from a mental impairment that inhibits his recollection of receipt, see Phillips. 2011 WL
6753089, at *3, or that Defendant improperly addressed the Notice, see Salter. 2014 WL

1280269, at *7. Plaintiff relies on the proximity of his home and counsel's office in conjunction
with counsel's copy of the Notice date-stamped "Oct 08 2015." Doc. 11, Ex. A 113, Ex. B.

Plaintiff provided no evidence of the distance between the Norfolk locations or the reliability of
mail delivery in the area, and the Magistrate Judge properly characterized Plaintiffs statement as
"conjecture." R&R at 8. Indeed, Plaintiff himself used less than convincing language in stating
that he "ha[s] no reason to believe" that he received the Notice earlier than his attorney. PL's

Aff. H3. Furthermore, though Ms. Carr averred that she would only have stamped the Notice on
the date it arrived, counsel provided no information about her "responsibility and training,"
which the Pettwav court considered important in evaluating an attorney's notice date-stamped by

legal staff. See 233 F. Supp. 2d at 1357. As in Brovyn. where the attorney provided a date-

11

stamped notice and the claimant provided no evidence whatsoever indicating his receipt of the

notice, Plaintiff has provided only his attorney's date-stamped Notice and no convincing
evidence concerning his receipt of the Notice before or after October 5, 2015. Therefore,

Plaintiff has failed to rebut the presumption of receipt of the Notice within five (5) days of
September 30,2015.
C.

Plaintiff Waived His Equitable Tolling Argument

In opposition to Defendant's Motionto Dismiss, Plaintiffappeared to argue that equitable
tolling applies because the Agency misled Plaintiff about his time to file a civil action:
Where it is clear that Plaintiffs attorney received the Notice on October 8, 2015,
that should be the date applicable to the agency which sent the Notice, and to
Plaintiff and his attorney. It would be quite inequitable for the agency to tell
Plaintiff and his attorney one thing in the Notice of Appeals Council Action, but
to then argue something else in this Court.
Doc. 11 at 6; see Reeves. 2014 WL 2573049, at *5. Indeed, the denial notice language in

Plaintiff's Notice somewhat clumsily recites the standard for calculating the time for filing a civil
action: "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." R. 2. The calculation begins the day after presumed—not actual—receipt of the denial
notice, or sixty-five (65) days after the date on the denial notice. 20 C.F.R. § 422.210(c).

Nevertheless, Plaintiff raised no equitable tolling objection to the R&R, see Doc. 17, and
the Court detects no clear error in the Magistrate Judge's relevant portion of the R&R, see R&R
at 9-10; Diamond. 416 F.3d at 315. Therefore, Plaintiff waived his equitable tolling argument,

and the Court need not analyze whether equitable tolling applies.
Mideette. 478 F.3d at 622.
IV.

CONCLUSION

12

Fed. R. Civ. P. 72(b)(3);

For the foregoing reasons, the Court OVERRULES Plaintiffs objections to the R&R,
Doc. 17, and ADOPTS the R&R, Doc. 16, in its entirely. The Court GRANTS Defendant's
Motion to Dismiss for Lack of Jurisdiction, Doc. 4, and this case is DISMISSED WITH
PREJUDICE.

The Clerk is REQUESTED to send a copy of this Opinion and Order to all counsel of
record.
It is so ORDERED.

/s/

Henry Coke Morgan, Jr.
Sciiiur United Stales District Judge _
HENRY COKE MORGAN, JR.

u

SENIOR UNITED STATES DISTRICT JUDGE

Norfolk, Virginia
February

. 2017

13