June 12, 2013
KEVIN PRESSLEY, Plaintiff,
MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
EDGARDO RAMOS, District Judge.
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.
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.
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 or within such further time as the Commissioner of Social Security may allow.
§ 405(g). The Commissioner's Regulations further provide that:
Any civil action... must be instituted within 60 days after the Appeals Council's notice of denial of request for review of the administrative law judge's decision or notice of the decision by the Appeals Council is received by the individual... except that this time may be extended by the Appeals Council upon a showing of good cause. For purposes of this section, the date of receipt of notice of denial of request for review of the presiding officer's decision or notice of the decision by the Appeals Council shall be presumed to be 5 days after the date of such notice, unless there is a reasonable showing to the contrary. 20 C.F.R. § 422.210(c). "The claimant thus has 65 days from the date of a final decision notice to file suit." Velez v. Apfel, 229 F.3d 1136, 1136 (2d Cir. 2000). Because the 60-day limit is a statute of limitations, it is a condition on the waiver of sovereign immunity and thus must be strictly construed." Rodriguez, 2011 WL 7121291, at *3 (quoting Bowen v. City of New York , 476 U.S. 467, 479 (1986)).
1. The Complaint is Untimely
In this case, the Appeals Council denied Plaintiffs request for review on September 10, 2012. The complaint does not plead the date that Plaintiff received notice of this denial. Accordingly, the presumed date of his receipt of the notice is five days thereafter, or September 15, 2012. Plaintiff has not responded to the motion to dismiss and thus has suggested no reason why the five day presumption should not apply here.
Plaintiff then had sixty days, or until November 14, 2012, to commence the instant federal action. His complaint was filed on November 19, 2012-five days after the time for filing had expired. The complaint is therefore untimely and courts within this Circuit routinely dismiss Social Security cases under similar circumstances. See, e.g., Ware v. Astrue, No. 12 Civ. 3381(JGK), 2013 WL 444766, at *1-2 (S.D.N.Y. Feb. 6, 2013) ( pro se plaintiffs nine day late filing dismissed as untimely); Cruz ex rel. C.M.R. v. Astrue, No. 11 Civ. 199(ARR), 2012 WL 314869, at *24 (E.D.N.Y. Feb. 1, 2012) ( pro se plaintiffs three month late filing dismissed as untimely); Rodriguez, 2012 WL 292382, at *1-2 ( pro se plaintiffs three week late filing dismissed as untimely).
2. Equitable Tolling is Not Warranted
The doctrine of equitable tolling applies to Social Security cases. Bowen , 476 U.S. at 480; Torres v. Bamha , 417 F.3d 276, 279 (2d Cir. 2005). A litigant will be entitled to such a toll where he "can show that he has been pursuing his rights diligently' and that some extraordinary circumstance stood in his way." Torres , 417 F.3d at 279 (quoting Pace v. DiGuglielmo , 544 U.S. 408, 418 (2005)). As indicated above, Plaintiff has not responded to the motion to dismiss or demonstrated in any way that he has been pursuing his rights diligently, or that some extraordinary circumstance prevented timely filing.
Accordingly, I conclude-and respectfully recommend that Your Honor should conclude-that Defendant's motion to dismiss should be GRANTED, and the complaint DISMISSED.