The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge
MEMORANDUM DECISION and ORDER*fn1
Plaintiff Angela Walrath brings this action challenging the determination of the Commissioner of Social Security Administration that she was not entitled to Social Security Disability Insurance (SSDI) benefits under the Social Security Act. See generally Dkt. No. 1, Compl. Walrath further challenges the Appeals Council's dismissal of her request for review as untimely filed.
The Commissioner moves to dismiss the Complaint, pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(c), and 12(h)(3), asserting that the Court lacks subject matter jurisdiction. Dkt. No. 7. For the reasons set forth below, the Motion is denied and the matter is remanded to the Commissioner for a hearing to determine the timeliness of Plaintiff's request for review.
According to the Complaint, as well as other affidavits submitted either in support of or in opposition to the Commissioner's Motion, the facts are as follows:
On May 6, 2003, Walrath filed an application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). Compl. at ¶ 5; Dkt. No. 7-2, John J. Timlin Decl., dated May 3, 2006, Ex. 1 at p. 8. The application was initially denied on May 22, 2003. Compl. at ¶ 5. On October 30, 2003, Plaintiff filed a timely request for a hearing before an administrative law judge (ALJ). Id. at ¶ 6. Such hearing was held via video teleconference on May 24, 2004, in Utica, New York, before the Honorable Alma S. deLeon; Plaintiff attended that hearing without a representative. Id.; Timlin Decl., Ex. 1 at p. 8. On July 30, 2004, Judge deLeon denied Plaintiff's request for DIB and SSI. Compl. at ¶ 7; Timlin Decl., Ex. 1 at p. 8. Pursuant to the Notice accompanying the ALJ's unfavorable decision, Plaintiff had sixty (60) days to file a request for review. Timlin Decl., Ex. 1 at p. 5. Because the Social Security Administration assumes receipt of such notice five days after the date of the decision, a request for review had to be filed by October 4, 2004.
Plaintiff asserts that on or about September 13, 2004, she mailed a letter to the Appeals Council requesting review of the ALJ's decision. Compl. at ¶ 8; Dkt. No. 1-3, Angela Walrath Aff., dated Jan. 12, 2006, at ¶¶ 4-6. The catalyst for the mailing of that letter was a conversation Walrath had with Attorney Paul F. Iaconis's Office, from whom she sought representation in her appeal to the Appeals Council. Walrath Jan. Aff. at ¶ 4. Walrath was advised that due to Attorney Iaconis's caseload at that time, he would be unable to meet with her until November 2004; she was further advised to submit an appeal to the Appeals Council to preserve her request for review. Id. In November 2004, Walrath met with Iaconis, who directed her to provide him with additional medical records to support the appeal; such records were finally collected at the end of February 2005. Id. at ¶ 7. Having been designated as Walrath's representative, Attorney Iaconis submitted a letter to the Appeals Council explaining his appointment and requesting the tapes of the ALJ hearing and exhibits so that he could submit a brief in support of Walrath's previously submitted request for review. Dkt. No. 14, Paul F. Iaconis, Esq., Affirm., dated Aug. 15, 2006, at ¶ 11; Timlin Decl., Ex. 2. Attorney Iaconis indeed received the requested materials and submitted such brief on July 12, 2005. Iaconis Affirm. at ¶ 12 & Ex. A.
On December 22, 2005, construing Attorney Iaconis's March 1st letter as a request for review, the Appeals Council sent a letter to Walrath informing her that her request for review was filed late. Timlin Decl., Ex. 3. The Appeals Council advised Walrath to provide information showing good cause for the untimely request or evidence regarding receipt of notice of the ALJ's action. Id. In response, Attorney Iaconis submitted a letter, dated January 5, 2006, explaining that his client had submitted a timely request for review on September 13, 2004; a copy of that letter and an Affidavit from Walrath were attached. Iaconis Affirm., Ex. B.
On January 21, 2006, the Appeals Council dismissed Plaintiff's request for review as untimely, asserting it had no record of receipt of Plaintiff's alleged mailing nor was any proof of such mailing submitted. Having no convincing evidence that the request for review was timely filed and finding no basis for good cause for the late filing, the Appeals Council dismissed the request for review. Timlin Decl., Ex. 5 at pp. 23-25. On March 22, 2006, Plaintiff filed her action in federal court. Dkt. No. 1.
"A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing FED. R. CIV. P. 12(b)(1)). Federal courts are "duty bound . . . to address the issue of subject matter jurisdiction at the outset." Filetech S.A. v. France Telecom S.A., 157 F.3d 922, 929 (2d Cir. 1998). "In resolving the question of jurisdiction, the district court can refer to evidence outside the pleadings and the plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that [jurisdiction] exists."
Luckett v. Bure, 290 F.3d 493, 496-97 (2d Cir. 2002) (citations omitted); see also Societe Nationale d'Exploitation Industrielle des Tabacs et Allumettes v. Salomon Bros. Int'l Ltd., 928 F. Supp. 398, 402 (S.D.N.Y. 1996) ("[T]he Court need not accept as true contested jurisdictional allegations and may resolve disputed jurisdictional facts by reference to affidavits and other materials outside the pleadings."). As the party "seeking to invoke the subject matter jurisdiction of the district court," the plaintiff bears the burden of demonstrating that there is subject matter jurisdiction in the case. ...