United States District Court, N.D. New York
PETER A. GORTON, ESQ., for Plaintiff.
AMANDA LOCKSHIN, Special Asst. U.S. Attorney for Defendant.
ANDREW T. BAXTER, Magistrate Judge.
Plaintiff brings this action to challenge a final decision of the Commissioner of Social Security, denying plaintiff's application for Disability Insurance Benefits ("DIB") and Supplemental Insurance Income ("SSI"). These Social Security appeals are handled according to General Order 18 of the Northern District of New York which sets forth the procedures to be followed on an appeal from the denial of Social Security benefits. Presently before the court is the defendant's motion to dismiss the action based on the statute of limitations. The motion was referred to me by Chief Judge Sharpe for Report and Recommendation by order dated November 25, 2014. (Dkt. Nos. 9, 10). Plaintiff has responded in opposition to the motion. (Dkt. No. 11). The court held a telephone conference on March 19, 2015. Defendant filed a status report on April 9, 2015. (Dkt. No. 14). For the following reasons, this court finds that no evidentiary hearing is necessary and will recommend denying the defendant's motion.
I. Timeliness of Filing
A. Legal Standards
Section 405(g) of the Social Security Act permits a claimant who has been denied benefits to obtain judicial review of the Commissioner's denial by bringing a civil action in the judicial district of the claimant's residence within 60 days of the mailing of the Notice of Decision. 42 U.S.C. § 405(g). The regulations provide that the sixty-day period begins to run upon the claimant's receipt of the notice, which is presumed to be five days after the date of the notifying letter. 20 C.F.R. § 422.210(c). See Matsibekker v. Heckler, 738 F.2d 79, 81 (2d Cir. 1984). The sixty-day limitations period must be strictly construed because it is a condition to the government's waiver of sovereign immunity. See Bowen v. City of New York, 476 U.S. 467, 479 (1986). Generally, failure to timely file, even where the delay is minor, will require dismissal of the complaint. Johnson v. Astrue, No. 12-CV-2736, 2014 WL 2624904, at *2 (E.D.N.Y. June 12, 2014) (citing Plaintiff v. Commissioner of Soc. Sec., 519 F.Supp.2d 448, 448 (S.D.N.Y. 2007); Davila v. Barnhart, 225 F.Supp.2d 337, 340 (S.D.N.Y. 2002)).
Notwithstanding the strict application of the statute of limitations, a filing may be deemed timely under the doctrine of equitable tolling "where a litigant can show that he has been pursuing his rights diligently; and that some extraordinary circumstance stood in his way.'" Reape v. Colvin, No. 1:12-CV-1426, 2015 WL 275865, at *3 (N.D.N.Y. Jan. 22, 2015) (quoting Torres v. Barnhart, 417 F.3d 276, 279 (2d Cir. 2005) (internal quotation omitted)). It is the plaintiff's burden to show that equitable tolling is justified. Id. (citing Liranzo v. Astrue, No. 07-CV-5074, 2010 WL 626791, at *3 (E.D.N.Y. Feb. 23, 2010), aff'd, 411 F.Appx. 390 (2d. Cir. 2011)). The application of this doctrine is appropriate only in "rare and exceptional circumstances in which a party is prevented in some extraordinary way from exercising his rights." Zerilli-Edelglass v. N.Y. Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003) (internal citations and quotations omitted). While "equitable tolling is generally warranted only in rare and exceptional circumstances, it is not infrequently appropriate in cases involving social security benefits because Congress intended to be unusually protective of claimants in this area." Liranzo, 2010 WL 626791, at *3 (citations omitted).
The facts regarding plaintiff's applications for DIB and SSI are not disputed. Plaintiff's applications were denied on January 30, 2013, by an Administrative Law Judge ("ALJ"), after an administrative hearing. (Declaration of Roxie Rasey Nicoll, Court Case Preparation and Review - Social Security Admin.) Plaintiff requested review of the ALJ's determination, and on June 30, 2014, the Appeals Council denied plaintiff's request for review, making the ALJ's decision the final determination of the Commissioner. (Nicoll Decl. ¶ 3(a)). A copy of the Appeals Council notice was sent to counsel. The notice informed plaintiff of her right to commence a civil action within sixty days of receipt of that notice. ( Id. & Ex. 2). With five days added for mailing,  the sixty days would have expired on Wednesday, September 3, 2014. Plaintiff's complaint was filed on Friday, September 5, 2014. (Dkt. No. 1). There appears to be no question that based on this information, the statute of limitations has run.
In his response to the motion to dismiss, plaintiff's counsel argues that "we believe that we properly filed [the complaint] on July 25, 2014, " well before the running of the statute of limitations. (Dkt. No. 11). In support of this assertion, counsel has filed the affidavit of counsel's paralegal, Tricia Iacovazzi. (Dkt. No. 11-1). Ms. Iacovazzi avers that on July 25, 2014, she filed "multiple case [sic]" in the Northern District of New York, one of them being this plaintiff's complaint. (Iacovazzi Aff. ¶ 4). Although she received a "receipt" as a result of the electronic filing, the receipt does not indicate the name or the case number of the action. ( Id. ¶ 5). It is Ms. Iacovazzi's practice to place these receipts in the client's file. She has attached a copy of this receipt to her affidavit as Exhibit A.
On September 5, 2014, two days after plaintiff's statute of limitations had run, Ms. Iacovazzi was reviewing several Social Security appeals and noticed that the firm had not received the appropriate documents from the court, including the summonses and the approval for plaintiff to proceed in forma pauperis ("IFP"). ( Id. ¶ 6). Ms. Iacovazzi then telephoned the Northern District Clerk's Office and was told that there was no complaint filed for plaintiff. She was told that she should submit the receipt she initially received, so that the receipt could be given to the "IT" department to determine what could have happened. ( Id. ¶ 7). Ms. Iacovazzi was also told to re-file the action, which was done on September 5, 2014 (the same day that she discovered the complaint had not been filed). ( Id. ¶ 8). Ms. Iacovazzi has also attached the "receipt" that she received on September 5, 2014, which is identical to the July 25, 2014 receipt, except for the filing date. The September 5, 2014 receipt also has no case name or number on it. ( Id. ¶ 9 & Ex. B).
Ms. Iacovazzi states that she subsequently telephoned the court to see if the IT department might have determined whether there was an "error" in the filing system on that particular day, but she never received a response. ( Id. ¶ 10). Ms. Iacovazzi states that she believes she properly filed Ms. Ocasio's case on July 25, 2014.
On April 9, 2015, defense counsel filed a letter, stating that their review of the court's docket shows that plaintiff's counsel filed another Social Security case on July 25, 2014,  and that the receipt submitted as an exhibit in this action might simply be the receipt for the case that was actually filed on July 25, 2014 by Lachman & Gorton. (Dkt. No. 14 at 1). The defendant argues that if plaintiff's counsel filed two cases on July 25, 2014, then there should be two different filing receipts. Defense counsel argues that Ms. Iacovazzi's exhibits do not prove that two separate cases were filed and that one of them was Ms. Ocasio's case. The court's independent review of the docket shows that plaintiff's ...