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Borrero v. Colvin

United States District Court, S.D. New York

February 25, 2015

MIGUEL BORRERO, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION

SARAH NETBURN, Magistrate Judge.

Pro se plaintiff Miguel Borrero brings this action pursuant to Section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking judicial review of the final determination of the Commissioner of Social Security (the "Commissioner") denying his application for Social Security Disability Insurance Benefits ("DIBs"). The Commissioner filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that Borrero's claims are time-barred by Section 205(g), which sets a sixty-day limit for a claimant to file a civil action seeking judicial review of the Commissioner's decision. 42 U.S.C. § 405(g).

It is undisputed that Borrero's claim was not timely filed. Because Borrero may have been pursuing his rights diligently but has not demonstrated that some extraordinary circumstances stood in his way, I recommend that the Commissioner's motion to dismiss be GRANTED, and that Borrero's claim be dismissed with prejudice.

PROCEDURAL BACKGROUND

On October 1, 2002, Borrero filed an application for DIBs. (ECF No. 1-4 (ALJ Decision - Unfavorable).) On August 27, 2004, the administrative law judge ("ALJ") found Borrero disabled under the Act as of September 26, 2002, and disability payments commenced thereafter. Id . In December 2010, the Commissioner initiated a continuing disability review. Id . After numerous hearings and determinations, the ALJ issued a final decision, on July 5, 2013, finding that Borrero's disability had ended pursuant to Section 223(f) of the Act. Id . Borrero sought review of the decision by the Appeals Council, and on April 25, 2014, the Appeals Council sent a notice to Borrero denying his request. (ECF No. 1-5 (Notice of Appeals Council Action).) The notice informed Borrero that he had a right to commence a civil action within 60 days of receipt of the notice, which would make June 30, 2014 the last day to file a timely complaint. (See ECF No. 1-6; infra note 1.) Borrero's complaint was filed with the Court's Pro Se Office on July 9, 2014.

On December 1, 2014, the Commissioner filed a motion to dismiss or, in the alternative, for summary judgment, with supporting memorandum of law, declaration, and Rule 56.1 statement, arguing that Borrero's claims are time-barred by Section 205(g) of the Act. (ECF Nos. 10-13.) On January 8, 2015, the Court issued an Order to Show Cause, directing Borrero to file a declaration providing whatever information he had to support the argument that he had "been pursuing his rights diligently" and that "some extraordinary circumstances stood in his way" such that the Court should toll the time period for filing his complaint. (ECF No. 15 (citing Torres v. Barnhart, 417 F.3d 276, 279 (2d Cir. 2005).) On February 11, 2015, Borrero filed a letter with the Court. (ECF No. 16.) Borrero explained that he had been waiting for the National Association of Disability Representatives ("NADR") to appoint him a lawyer. (Id.) On April 25, 2014, he went to the Social Security Office in Monticello, New York to request an extension and learned that NADR only handles state, not federal, disability claims. (Id.) He was given contact information for the Southern District of New York, contacted the District Court, and thereafter sent his claim to the Pro Se Office. (Id.)

DISCUSSION

I. Standard of Review

Judicial review of cases arising under Title II of the Act is provided for, and expressly limited by, Sections 205(g) and (h) of the Act. 42 U.S.C. §§ 405(g), (h). Under these provisions, a plaintiff must present her claims in the district court within 60 days after the mailing of the notice of a final decision, or within such further time as the Commissioner may allow. 42 U.S.C. § 405(g). "Because the 60-day time limit defines the terms on which the United States waives its sovereign immunity and consents to be sued, it is strictly construed." Davila v. Barnhart, 225 F.Supp.2d 337, 338 (S.D.N.Y. 2002) (citing Bowen v. City of New York, 476 U.S. 467, 479 (1986); Randell v. United States, 64 F.3d 101, 106 (2d Cir. 1995)).

The "60-day requirement is not jurisdictional, but rather constitutes a period of limitations." Bowen, 476 U.S. at 478 (citations omitted). And because the expiration of the statute of limitations is an affirmative defense, it is best asserted under Rule 12(b)(6). Rodriguez ex rel. J.J.T. v. Astrue, 10 Civ. 9644 (PAC)(JLC), 2011 WL 7121291, at *2 (S.D.N.Y. July 25, 2011) ("[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).'" (quoting Nghiem v. U.S. Dep't of Veterans Affairs, 451 F.Supp.2d 599, 603 (S.D.N.Y. 2006), aff'd, 323 F.Appx. 16 (2d Cir. 2009))).

In deciding a 12(b)(6) motion, the Court "must accept all factual allegations in the complaint as true and draw inferences from those allegations in the light most favorable to the plaintiff." Jaghory v. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997) (citing cases).

II. Timeliness of Filing

Section 205(g) of the Act provides 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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