The opinion of the court was delivered by: James C. Francis IV United States Magistrate Judge
Pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), Jose Rodriguez brings this action against the Commissioner of the Social Security Administration (the "SSA") challenging the denial of his April 11, 2001 application for disability insurance and Supplemental Security Income ("SSI") benefits. The parties previously stipulated to my exercising authority over this case for all purposes pursuant to 28 U.S.C. § 636(c). Arguing that Mr. Rodriguez's claim is time-barred, the government now moves to dismiss his complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, or alternatively, for a order granting summary judgment pursuant to Rule 56(c). For the reasons explained below, the government's motion for summary judgment is granted.
Mr. Rodriguez was born in the Dominican Republic in September 1947. (Affidavit of Jose Rodriguez dated Oct. 21, 2008 ("Rodriguez Aff."), attached as Exh. 7 to Declaration of Patrick J. Herbst dated Dec. 17, 2008 ("Herbst Decl."), ¶ 2). He has not had any substantial formal education and has only a limited ability to read in Spanish, his native language. (Rodriguez Aff., ¶ 2). He understands only a "few words" in English, and cannot read or write in English at all. (Rodriguez Aff., ¶ 2). Mr. Rodriguez is in very poor health, and currently receives SSI benefits as a result of an application filed in November 2002.*fn1 (Rodriguez Aff., ¶ 3).
On April 11, 2001, after filing several previous applications, Mr. Rodriguez submitted a claim for disability insurance and SSI benefits.*fn2 (Rodriguez Aff., ¶ 4; Decision of Administrative Law Judge dated May 29, 2002 ("ALJ Decision"), attached as part of Exh. 1 to Herbst Decl., at 1). Mr. Rodriguez had frequently visited his local SSA office --- located in the Washington Heights neighborhood of Manhattan --- for assistance with his applications and with the SSA review process. (Rodriguez Aff., ¶ 4). Due to his limited education, he relied heavily on the SSA staff for guidance and routinely followed their instructions. (Rodriguez Aff., ¶ 4).
A hearing was held on May 21, 2002 concerning the April 11, 2001 application. Mr. Rodriguez was represented at the hearing by Elena Estrella,*fn3 and he testified before the presiding Administrative Law Judge (the "ALJ") with the aid of a Spanish interpreter. (ALJ Decision at 1). On May 29, 2002, the ALJ issued a decision denying the claim. (ALJ Decision).
On June 15, 2002, Mr. Rodriguez sought review of the ALJ's decision. (Request for Review of Hearing Decision/Order dated June 15, 2002, attached as Exh. 2 to Herbst Decl.). In a letter dated October 12, 2002, the SSA Appeals Council denied this request, thus upholding the ALJ's determination. (Field Letter). After a brief description of the grounds for the denial, the letter explained that if Mr. Rodriguez wished to seek further review he must file a civil action in federal court within sixty days. (Field Letter at 1-2). The letter was written in English, but included a page-long explanation in Spanish of the rights of claimants. (Field Letter at 3).
At some point following receipt of the Appeals Council's decision, in either October or November of 2002, Mr. Rodriguez went to the Washington Heights SSA office with the intent to appeal the Appeal Council's decision.*fn4 (Rodriguez Aff., ¶ 5). There is no record of exactly what happened that day, although Mr. Rodriguez believed that he had filed an appeal.*fn5 (Rodriguez Aff., ¶¶ 5-7; Plaintiff's Memorandum of Law in Opposition to the Commissioner's Motion to Dismiss the Complaint or in the Alternative for Summary Judgment ("Pl. Memo.") at 3). On November 7, 2002, Mr. Rodriguez also filed a new application for benefits because "someone advised [him] that an appeal could take a very long time, and a new application might be approved quickly."*fn6 (Rodriguez Aff., ¶¶ 5-6).
On March 19, 2003, Mr. Rodriguez returned to the SSA office to inquire about the status of his November 2002 "appeal." (Report of Contact dated March 9, 2003 ("SSA Contact Report"), attached as Exh. 4 to Herbst Decl.; Def. Facts, ¶ 7). The SSA staff member who spoke with Mr. Rodriguez that day was apparently unaware that the plaintiff had already exhausted his administrative appeals. (SSA Contact Report; Def. Facts, ¶ 7). Accordingly, the staff member improperly permitted Mr. Rodriguez to file a second request for review of the ALJ's May 29, 2002 decision. (SSA Contact Report; Def. Facts, ¶ 7).
On December 9, 2004, the Appeals Council sent another letter to Mr. Rodriguez, stating that it would take no further action because it had already denied a request for review of the May 2002 decision. (Letter of M. Collins dated Dec. 9, 2004, attached as Exh. 6 to Herbst Decl.). It seems that this letter was written in English only; there is no Spanish version on file.
According to Mr. Rodriguez, from approximately April 2003 until November 2007, he went to the SSA office "every couple of months" to ask about his appeal. (Rodriguez Aff., ¶ 8). He alleges that SSA staff members repeatedly told him that his appeal was still pending and assured him that the appeals process was a lengthy one. (Rodriguez Aff., ¶ 8). Finally, someone told Mr. Rodriguez that he should have filed a complaint in federal court (Rodriguez Aff., ¶ 8), so he did.
Proceeding pro se, Mr. Rodriguez commenced the instant case on November 8, 2007. Subsequently, he retained counsel, and the government filed the instant motion on December 18, 2008.*fn7
The Social Security Act ("the Act") limits the availability of review of final decisions by imposing a 60-day limit for filing ...