United States District Court, S.D. New York
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
REPORT and RECOMMENDATION
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
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
could extend the time in which to commence an action in federal
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.
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
further proceedings were stayed pending plaintiffs compliance with
the order. In April 2001, the Appeals Council denied plaintiff's request
for an extension of time in which to file her complaint.
Plaintiff filed an amended complaint on May 16, 2001. The defendant's
motion to dismiss the complaint or, in the alternative, for summary
judgment, followed. In support of her motion, the defendant has submitted
a memorandum of law, the declaration of Yvonne K. Speights, a court case
preparation officer of the SSA, and a Southern District of New York Local
Civil Rule 56.1 statement. In opposition to the instant motion, plaintiff
has submitted a memorandum of law, a Southern District of New York Local
Civil Rule 56.1 statement and, as noted earlier, a sworn affidavit.
Because the defendant has relied on materials outside the pleadings, the
motion will be treated as one for summary judgment rather than as a
motion for dismissal under Fed.R.Civ.P. 12(b)(6).
Standard of Review for Summary Judgment
Summary judgment may be granted in favor of the moving party "if the
pleadings, depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(c); see also
D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.),
cert. denied, 524 U.S. 911, 118 S.Ct. 2075 (1998).
When considering a motion for summary judgment, "[t]he court must view
the evidence in the light most favorable to the party against whom
summary judgment is sought and must draw all reasonable inferences in his
favor." L. B. Foster Co. v. America Piles, Inc., 138 F.3d 81,
(2d Cir. 1998) (citing Matsushita Electric Industrial Co. v. Zenith
Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 ).
The moving party bears the burden of showing that no genuine issue of
material fact exists. See Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548. 2552 (1986). Once the moving party has
satisfied its burden, the non-moving party must come forward with
"specific facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e); see also Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986).
In order to defeat a motion for summary judgment, the non-moving party
cannot merely rely upon the allegations contained in the pleadings that
raise no more than "some metaphysical doubt as to the material facts."
Matsushita, 475 U.S. at 586, 106 S.Ct. at 1355. "[T]he mere
existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment."
Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2510. The
non-moving party must offer "concrete evidence from which a reasonable
juror could return a verdict in his favor." Id. at 256, 2514.
Summary judgment should be granted only if no rational jury could find in
favor of the non-moving party. See Heilweil v. Mount Sinai
Hospital, 32 F.3d 718, 721 (2d Cir. 1994).
The limitations period for seeking judicial review of a final decision
of the SSA is set forth in 42 U.S.C. § 405(g), which provides, in
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 regulations promulgated by the SSA construing this provision state
that the sixty-day
limitations period begins upon receipt of notice of decision by the
claimant; receipt is presumed to occur five days after the date of the
decision, "unless there is a reasonable showing to the contrary."
20 C.F.R. § 422.210(c)
In this case, there is no dispute that plaintiff filed her complaint
more than five months after the sixty-five-day limitations period had
expired. Therefore, the question to be decided is whether, under the
circumstances, there exist any genuine issues of material fact that would
justify equitable tolling of that limitations period. Equitable
The doctrine of equitable tolling permits courts to extend a statute of
limitations beyond the time of expiration to prevent inequity. See
Warren v. Garvin, 219 F.3d 111, 113 (2d Cir 2000)(citing
Johnson v. Nyack Hospital, 86 F.3d 8, 12 [2d Cir. 1996]).
However, equitable tolling applies only in "rare and exceptional"
circumstances. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.
2000). To merit equitable tolling, a party must show that "extraordinary
circumstances" prevented her from filing timely and that she acted with
"reasonable diligence" during the period she seeks to toll. Id.
Furthermore, a party seeking equitable tolling must "demonstrate a causal
relationship between the extraordinary circumstances on which the claim
for equitable tolling rests and the lateness of [her] filing. . . ."
Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000).
The federal courts are empowered to toll the section 405(g) limitations
period in "cases . . . where the equities in favor of tolling the
limitations period are so great that deference to the agency's judgment
is inappropriate." Rodriguez v. Barnhart, No. 01 Civ. 3411,
2002 WL 31875406, at *3 (S.D.N.Y. Dec. 24, 2002) (quoting Bowen v. City
of New York. 476 U.S. 467,
480, 106 S.Ct. 2022, 2030 ); see also Guinyard v.
Apfel, No. 99 Civ. 4242, 2000 WL 297165, at *2 (S.D.N.Y. Mar. 22,
2000). Consequently, "although the sixty-five-day limit is a condition of
the agency's waiver of sovereign immunity and such a waiver should
ordinarily be strictly construed, tolling of the statute is plainly
available in appropriate circumstances." Rodriguez, 2002 WL
31875406, at *3 (citations omitted). Moreover, since the social security
statute was designed by Congress to be "unusually protective" of
claimants, dismissal of a plaintiff's claim on technical procedural
grounds is not consistent with congressional intent and, therefore, is
inappropriate in such cases. Id. (quoting Bowen, 476
U.S. at 480, 106 S.Ct. at 2030).
Among the circumstances in which equitable tolling may be warranted in
the social security context are those in which a claimant can show that a
mental impairment hindered her ability to seek judicial review in a
timely manner. See Canales, 936 F.2d at 759. A claimant who
alleges incapacity due to mental impairment during the relevant
limitations period should be given an opportunity to submit evidence in
support of her claim. See id.; Guinyard,
2000 WL 297165, at *4. If the claimant can show that she was
incapacitated for any length of time during the relevant limitations
period, then this evidence should be weighed to determine whether, all
things considered, equitable tolling is warranted. See Canales,
936 F.2d at 759; Guinyard 2000 WL 297165, at *4. "[T]he
question of whether a person is sufficiently mentally disabled to justify
tolling of a limitation period is, under the law of this Circuit, highly
case-specific." Boos v. Runyon, 201 F.3d 178, 184 (2d Cir.
The defendant argues that: (1) the Appeals Council's April 2001
decision denying plaintiff an extension of the time in which to file her
complaint in federal district court is not
subject to judicial review, and (2) even if the decision were
subject to judicial review, the evidence presented by the plaintiff is
insufficient to demonstrate that she is entitled to equitable tolling of
the pertinent limitation period.
In claiming that the April 2001 decision of the Appeals Council is not
subject to judicial review, the defendant relies upon Dietsch v.
Schweiker, 700 F.2d 865, 867 (2d Cir. 1983) and Rivera v.
Apfel, No. 01 Civ. 0752, 2001 WL 699065 (S.D.N.Y. June 21, 2001).
However, the defendant's reliance upon these cases is misplaced because
each involves factual circumstances materially different from those that
exist here. Specifically, in both Dietsch and Rivera,
the plaintiff had failed to seek review, in a timely fashion, of a
decision by an ALJ. Consequently, the plaintiff in each case was
seeking an extension of the time in which to file a request for Appeals
Council review of such a decision. See Dietsch, 700 F.2d at
866-67; Rivera, 2001 WL 699065, at *1-2. Regarding the
plaintiffs request, the court in Dietsch stated that "[t]he
Appeals Council may dismiss an untimely request for review . . . and such
a dismissal is not reviewable by the district court because it is not a
`final decision' within the meaning of § 405(g)." 700 F.2d at 867. In
Dietsch, the court is referring to an "untimely request for
review" of a decision by an ALJ. Similarly, in Rivera the court
found that "the Appeals Council may dismiss untimely requests for review
and . . . such dismissals do not constitute `final decisions' within the
meaning of § 405(g)." 2001 WL 699065, at *2. Here, again, the court
is referring to "untimely requests for review" of a decision by an ALJ.
The court in Rivera goes on to say: "We find . . . that since
another level of administrative review would have been available to
plaintiff if she had submitted her request within the 65-day period, the
ALJ's decision does not constitute a `final decision'
and, therefore, is not subject to judicial review under §
405(g)." Id. at *3. By "another level of administrative
review," the court means a substantive review of an ALJ decision by the
Appeals Council. Since the plaintiff in Rivera had not reached
that level of administrative review, she had not obtained a final
decision and, consequently, had not exhausted her administrative
remedies. Therefore, in that case, there could be no judicial review of
the Appeals Council's decision.
In this case, the decision for which judicial review is sought is a
substantive ruling by the Appeals Council affirming the decision of the
ALJ. That substantive ruling is a "final decision" within the meaning of
§ 405(g) because it represents the final level of administrative
review in the social security context. Moreover, because, in this case,
the decision for which plaintiff seeks judicial review is a final
decision, the plaintiff has exhausted her administrative remedies as
prescribed in § 405(g). See Dietsch, 700 F.2d at 867
(finding that § 405(g) has been interpreted to require that,
generally speaking, administrative procedures must be exhausted before
judicial review is available); Bowen 476 U.S. at 471-72, 106 So.
Ct. at 2025-26 (finding that a claimant who has proceeded through the
three-stage administrative review process, that is, the state agency's
decision on reconsideration, a hearing by an ALJ, and review by the
Appeals Council, has exhausted his or her administrative remedies).
Accordingly, the Court finds that the Appeals Council's April 2001
decision denying plaintiff an extension of the time in which to file her
complaint in federal district court constitutes a final decision within
the meaning of § 405(g) and, as such, is subject to judicial review.
The Equities in this Case
In order to meet the first prong of the test for equitable tolling,
plaintiff must show that
"extraordinary circumstances" prevented her from filing timely. In
this case, plaintiffs submissions show that she has significant
impairments, including illiteracy and mental retardation. Plaintiff's
illiteracy is well-documented; even the decision of the ALJ found, based
on the report of the SSA's psychiatric examiner, that plaintiff "cannot
read" and suffers from "illiteracy." In addition, a comprehensive
psychological evaluation prepared by the YAI Center for Speciality
Therapy, dated July 25, 2000, states that plaintiff is "not able to read
or write." Moreover, in her affidavit, plaintiff states that she does not
know how to read or write in English and that, although she speaks and
understands Spanish, she cannot read or write in that language.
Furthermore, on December 8, 2000, plaintiff was diagnosed by a
psychiatrist employed by the YAI Premier Health Care center as being
within the "mild to moderate range of mental retardation." The
psychiatrist found that plaintiff suffered from depressive and anxiety
disorders, was easily anxious, changeable and frustrated, and had
impaired judgment as a result of these manifestations of her disorders.
The psychiatrist also found that plaintiff's "psychiatric disorder is
longstanding and her mental retardation is permanent." These submissions
show that plaintiff was incapacitated during the relevant limitations
period and, consequently, may have been prevented from pursuing the
judicial review process. As noted earlier, a plaintiff's incapacity to
seek judicial review may constitute "extraordinary circumstances,"
warranting equitable tolling of the relevant limitations period. However,
in order to satisfy the first prong of the equitable tolling test,
plaintiff must also show a causal relationship between the extraordinary
circumstances on which her claim is based and the lateness of her filing.
Plaintiff asserts that her illiteracy and mental retardation prevented
her from reading and understanding the Appeals Council's May 26, 2001
letter. The letter, as noted above, provided
information concerning how to seek judicial review of the decision
denying her application for SSI benefits. In addition, plaintiff avers,
after the attorney who had represented her in the previous administrative
actions withdrew from her case, she "did not know what to do next."
Plaintiff also avers that she did not learn about the availability of
legal assistance from MFY until "[l]ater on." Moreover, according to
plaintiff's counsel, attempts to contact her former attorney to ascertain
whether he had assisted plaintiff to file a complaint in federal court,
or had informed her about the appeals process, met with no response.
Thus, it appears that, although plaintiff was represented by counsel for
the purpose of pursuing her administrative remedies, the representation
ceased as soon as the Appeals Council issued its decision. Therefore,
under the circumstances, it appears that plaintiff's mental retardation
and illiteracy were the cause of her failure to file her complaint in a
Plaintiff must also show that she exercised "reasonable diligence"
during the period she seeks to toll. "In a case involving a litigant who
suffers from a significant cognitive disability or a set of psychological
conditions that render understanding and action difficult, [the court
may] infer that the `reasonable diligence' standard requires less than it
would for a plaintiff who does not suffer from such handicaps."
Rodriguez, 2002 WL 31875406, at *5.
Here, although plaintiff did not seek legal assistance for more than
five months after the deadline for filing her complaint in federal
district court, she has explained that, in the absence of legal
assistance, she did not know what to do. In addition, it should be noted
that plaintiff acted to reapply for SSI benefits in June 2000, just one
month after receiving the Appeals Council's letter. The defendant argues
that this undermines plaintiff's contention that her mental impairment
kept her from filing her complaint timely. However, the court notes that
despite her impairments, is likely to have been able to reapply for
SSI benefits, since she had done this before, whereas filing a complaint
in federal court may well have been beyond her capabilities. Furthermore,
in this context, it should be noted that the written instructions
provided by the Appeals Council on how to seek judicial review of its
decision in federal court are "rather opaque." Rodriguez, 2002
WL 31875406, at *6 (noting that while the instructions in the Appeals
Council's letter make mention of the district court "for the district in
which you reside," they give neither addresses nor phone numbers to
direct a potential litigant to the appropriate location). Furthermore,
plaintiff's efforts to secure new benefits promptly shows a measure of
diligence in the circumstances, as does plaintiff's filing of her
complaint with the Pro Se Office for this judicial district on the same
day that she met with the MFY attorney who helped her to prepare that
document. Thus, taking into consideration plaintiff's mental impairment
in determining whether she acted with reasonable diligence to preserve
her claim, the Court finds that plaintiff has satisfied the second prong
of the equitable tolling test.
Therefore, under the circumstances, the Court finds that plaintiff has
offered sufficient evidence to establish that there exist genuine issues
of material fact that justify equitably tolling the sixty-five-day
limitations period in this case. Accordingly, the defendant's motion for
summary judgment should be denied.
For the reasons set forth above, the defendant's motion for summary
judgment, made pursuant to Fed.R.Civ.P. 56, should be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure,
the parties shall have ten (10) days from service of this Report to
file written objections. See also Fed.R.Civ.P. 6. Such
objections, and any responses to objections, shall be filed with the
Clerk of Court, with courtesy copies delivered to the chambers of the
Honorable Richard M. Berman, 40 Foley Square, Room 201, New York, New
York, 10007, and to the chambers of the undersigned, 40 Foley Square,
Room 540, New York, New York, 10007. Any requests for an extension of
time for filing objections must be directed to Judge Berman. FAILURE TO
FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF
OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v.
Arn, 474 U.S. 140
(1985); IUE AFL-CIO Pension Fund v.
Herrmann, 9 F.3d 1049
, 1054 (2d Cir. 1993); Frank v.
Johnson, 968 F.2d 298
, 300 (2d Cir. 1992); Wesolek v. Canadair
Ltd., 838 F.2d 55
, 57-59 (2d Cir. 1988); McCarthy v.
Manson, 714 F.2d 234
, 237-38 (2d Cir. 1983).