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Pressley v. Astrue

United States District Court, Second Circuit

June 12, 2013

KEVIN PRESSLEY, Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

EDGARDO RAMOS, District Judge.

I. INTRODUCTION

Kevin Pressley ("Plaintiff'), through counsel, seeks review pursuant to 42 U.S.C. § 405(g) of a decision by the Commissioner of Social Security ("Defendant") denying his claim for Social Security Disability ("SSD") benefits. Before the court is Defendant's motion to dismiss the action pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure on the ground that Plaintiff failed to commence the action within the sixty-day time period provided by § 405(g). (Dkt. 5.) The matter comes before me pursuant to an Order of Reference dated November 27, 2012. (Dkt. 2.) For the reasons set forth below, I respectfully recommend that Respondent's motion be GRANTED and the case DISMISSED.

II. BACKGROUND

The complaint alleges that after Plaintiffs application for SSD benefits was denied, he requested a hearing and a hearing was held on October 6, 2010. The Administrative Law Judge denied Plaintiff's claim on April 8, 2011. (Compl. ¶ 7 (Dkt. 1).) On June 7, 2011, Plaintiff requested review by the Appeals Council. (j ¶ 8.) The request was denied on September 10, 2012. (Id.) Thereafter, Plaintiff initiated this civil action in the federal district court for the Southern District of New York. Although the complaint is dated November 9, 2012, it was not filed until November 19, 2012.

Defendant filed its motion to dismiss on April 5, 2013. (Dkt. 5.) No response from Plaintiff has been received.[1]

III. DISCUSSION

A. Applicable Law

1. Motion to Dismiss

"A statute of limitations defense, based exclusively on dates contained within the complaint or appended materials, may be properly asserted by a defendant in a Rule 12(b)(6) motion.'" Rodriguez ex rel. J.J.T. v. Astrue, No. 10 Civ. 9644(PAC)(JLC), 2011 WL 7121291, at *2 (S.D.N.Y. July 25, 2011) (Report & Recommendation) (quoting Gelber v. Stryker Corp., No. 09 Civ. 1322(PKC), 2011 WL 1483927, at *5 (S.D.N.Y. Apr. 18, 2011)), adopted by 2012 WL 292382, at *1-2 (S.D.N.Y. Jan. 31, 2012). "Indeed, a motion to dismiss on statute of limitations grounds... generally is treated as a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), as opposed to under Rule 12(b)(1).'" Id . (quoting Nghiem v. U.S. Dep't of Veterans Affairs , 451 F.Supp.2d 599, 603 (S.D.N.Y. 2006)).

"To survive a motion to dismiss [filed pursuant to Rule 12(b)(6)j, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp v. Twombly , 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id . (citing Twombly , 550 U.S. at 556).

2. Social Security Claims

It is well-established that the doctrine of sovereign immunity prevents the federal government from being sued "without its consent." United States v. Navajo Nation , 556 U.S. 287, 289 (2009) (citing FDIC v. Meyer , 510 U.S. 471, 475 (1994)). For purposes of Social Security claims, the United States has consented to be sued under the limited circumstances provided by 42 U.S.C. § 405(g). That statute provides, in relevant part, that:

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 ...

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