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March 4, 2004.

PATRICIA HERNANDEZ, Plaintiff, -against- JO ANNE BARNHART, Commissioner of Social Security, Defendant

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge



Plaintiff Patricia Hernandez ("Hernandez") brings this action seeking review of a Social Security Administration ("SSA") decision denying her Supplemental Security Income ("SSI") benefits. The defendant, Commissioner of Social Security, moves to dismiss the complaint pursuant to 42 U.S.C. § 405(g) and Fed.R.Civ.P. 12(b)(6) or, alternatively, for summary judgment pursuant to Fed.R.Civ.P. 56, on the ground that the complaint was not timely filed. Plaintiff opposes the motion. She contends that she is entitled to equitable tolling of the deadline for filing her complaint in federal district court because her mental impairment hindered her from commencing this action timely.


  In June 1989, the SSA determined that plaintiff was disabled and, thus, eligible for SSI Page 2 benefits. Thereafter, in January 1998, the SSA determined that plaintiff's disability had ceased. Consequently, in March 1998, plaintiff stopped receiving SSI benefits.

  On January 28, 1999, plaintiff, represented by counsel, appeared before an Administrative Law Judge (ALJ) to contest the termination of her SSI benefits. The ALJ held open the hearing record so that a consultative psychiatric examination of plaintiff could be completed. The examination took place in April 1999. Thereafter, on July 27, 1999, having reviewed the medical evidence presented in the case, the ALJ issued a decision finding that plaintiff's eligibility for SSI benefits had been correctly terminated because her disability was correctly found to have ceased as of January 1998. In his decision, the ALJ noted, inter alia, that plaintiff had a limited education and was illiterate.

  In an affidavit submitted in opposition to the instant motion, plaintiff states that, since she could not read the ALJ's decision, her attorney explained to her that her application for SSI benefits had been denied and that he would file an appeal. Accordingly, by letter dated August 2, 1999, and addressed to the Appeals Council of the SSA, plaintiff's attorney requested a review of the ALJ's decision. That request was denied on May 26, 2000. Two copies of the Appeals Council's letter, one in English and one in Spanish, were sent to plaintiff at her home address. A copy of the letter also was sent to plaintiff's attorney.

  The Appeals Council's letter notified the plaintiff that she was entitled to seek judicial review of its decision denying her appeal and that she had sixty days from the date of the receipt of the letter in which to commence a civil action. The letter also informed her that the Appeals Council would assume she had received its letter five days after the date on the letter. Additionally, the letter notified plaintiff that, upon a showing of good cause, the Appeals Council Page 3 could extend the time in which to commence an action in federal district court.

  In her complaint, plaintiff states that she received the Appeals Council's letter on May 31, 2000. In her affidavit, plaintiff avers that her attorney explained to her that "this was another denial decision" and that "he was no longer my attorney." Plaintiff states that she "did not know what to do next" and asked a friend to read her the Appeals Council's letter. According to plaintiff, she was told that the letter "mentioned the SSA." Plaintiff then went to her local SSA district office where she filed a new application for benefits.*fn1

  By law, plaintiff had sixty (60) days to commence a civil action from the date she received the Appeals Council's letter, which was presumed to be five days after the letter was dated. See 42 U.S.C. § 405(g); 20 C.F.R. § 422.210(c). Since the Appeals Council's letter was dated May 26, 2000, plaintiff had until July 31, 2000, to file her complaint within the sixty-five-day time limit.

  However, plaintiff, who avers that she did not learn that she might obtain legal assistance until after the filing deadline had passed, did not file her complaint until January 3, 2001. On that date, plaintiff met with an attorney employed by MFY Legal Services ("MFY"). Plaintiff avers that the attorney advised her that her complaint was no longer timely, but that she might have "good cause to file a late appeal." In any case, the MFY attorney assisted plaintiff to prepare a complaint and then directed her to the Pro Se Office for this judicial district. Plaintiff's complaint was filed the same day. Page 4

  Thereafter, on February 26, 2001, an attorney employed by MFY submitted a letter to the Appeals Council on plaintiff's behalf requesting an extension of the time in which to file her complaint, as well as a finding of good cause for the late filing. Attached to the letter were: (i) a psychiatric report prepared by Dr. Richard Mayer, a psychiatrist employed at YAI Premier Health Care; (ii) a "Checklist of Function Limitations Resulting from a Mental/Intellectual Impairment," also prepared by Dr. Mayer; and (iii) a comprehensive psychosocial evaluation, dated July 25, 2000, prepared by Allison Lindner, a certified social worker employed at the YAI Center for Specialty Therapy.

  These documents indicate, inter alia, that plaintiff was determined to be functioning "within the mild to moderate range of mental retardation," and that recommended services included "individual psychotherapy . . . to discuss her anxiety and reduce anxious behavior." The documents also indicate that plaintiff was found to suffer from depressive and anxiety disorders: her mood was found to be "easily anxious/depressed" and her affect "easily changeable, easily frustrated." In addition, plaintiff was found by her medical examiners to have impaired judgment as a result of her anxiety and a marked limitation in activities of daily living and social functioning, and to be unable to travel alone or to read or write. Furthermore, in his report, Dr. Mayer stated that plaintiff's "psychiatric disorder is longstanding and her mental retardation is permanent." Regarding plaintiff's ability to make occupational adjustments, Dr. Mayer stated that "[g]iven her mental retardation . . . she is emotionally and cognitively impaired in this."

  On March 20, 2001, Chief Judge Michael Mukasey issued an order directing plaintiff to file an amended complaint explaining why she had not commenced a civil action in federal court within sixty (60) days, as provided in the letter she had received from the Appeals Council. All Page 5 further proceedings were stayed pending plaintiffs compliance with the order. In April 2001, the ...

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