United States District Court, S.D. New York
NANCY M. DEJESUS, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY Defendant.
Nancy M. DeJesus Susan D. Baird, Esq. Assistant United States
Attorney Southern District of New York U.S. Attorney's
REPORT AND RECOMMENDATION
PITMAN United States Magistrate Judge.
HONORABLE ANALISA TORRES, United States District Judge, I.
notice of motion dated September 3, 2015 (Docket Item
("D.I.") 6), defendant moves pursuant to
Fed.R.Civ.P. 12(b)(6) to dismiss plaintiff's complaint on
the ground that it is untimely. For the reasons set forth
below, I respectfully recommend that defendant's motion
to dismiss be granted and that the complaint be dismissed as
commenced this action seeking judicial review of a final
decision of the Commissioner of Social Security (the
"Commissioner") denying her applications for
disability income benefits ("DIB") and supplemental
security income ("SSI"); the action is brought
pursuant to Section 205(g) of the Social Security Act, 42
U.S.C. § 405(g) (the "Act").
submitted her applications for DIB and SSI on February 29,
2012 (Complaint, filed May 26, 2015 (D.I. 2), attachment at
Both claims were initially denied on May 8, 2012 (Complaint,
attachment at 7). Plaintiff subsequently requested a hearing,
and an Administrative Law Judge (an "ALJ")
conducted a hearing on October 10, 2013 (Complaint,
attachment at 7). Plaintiff had a non-attorney representative
present at the hearing (Complaint, attachment at 7). The ALJ
concluded that plaintiff suffered from a partial tear of the
cruciate and medial collateral ligaments of the left
shoulder, cervical and lumbar strains, contusions of the left
hip and left knee, a fractured finger, asthma, vertigo and a
depressive disorder and that these conditions constituted
"severe impairments" (Complaint, attachment at 9).
Nevertheless, he concluded that plaintiff had the residual
functional capacity to perform light work, with a number of
limitations (Complaint, attachment at 11). The ALJ found that
although plaintiff was not capable of performing her past
relevant work as a home attendant, she was capable of
performing the requirements of a production assembler,
addressing clerk and messenger/courier (Complaint, attachment
timely requested review of the ALJ's decision, and on
March 6, 2015, the Appeals Council advised plaintiff that it
had denied her request for review (Declaration of Roxie Rasey
Nicoll, dated July 25, 2015 (D.I. 7) ("Nicoll
Decl.") ¶ 3(a) & Ex. 2, at
The Appeals Council's notice advised plaintiff that she
had the right to seek judicial review of the adverse decision
by filing a complaint in federal court. The notice went on to
to File a Civil Action
• You have 60 days to file a civil action (ask for court
• The 60 days start the day after you receive this
letter. We assume you received this letter 5 days after the
date on it unless you show us that you did not receive it
within the 5-day period.
• If you cannot file for court review within 60 days,
you may ask the Appeals Council to extend your time to file.
You must have a good reason for waiting more than 60 days to
ask for court review. You must make the request in writing
and give your reason(s) in the request.
(Nicoll Decl., Ex. 2, at 2-3). The 65th day after March 6,
2015 was May 10, 2015, a Sunday. Pursuant to Fed.R.Civ.P.
6(a)(1)(C), because the 65-day period ended on a Sunday, it
continued to run until the next business day, May 11, 2015.
submitted her complaint to the Court's Pro Se
Office on May 26, 2015 (D.I. 2). There is no evidence in the
record that plaintiff ever sought an extension of time to
file her action from the Appeals Council (see Nicoll
Decl. ¶ 3(b)). After defendant filed its motion to
dismiss, I issued an Order mea sponte on January 27,
2016 giving plaintiff until February 29, 2016 to submit any
opposition she might have (D.I. 10). My staff mailed a copy of
this Order to plaintiff; it has not been returned as
undeliverable. Plaintiff has not submitted any opposition to
the Commissioner's motion nor has she contacted my
chambers in any way. The closest plaintiff has come to
explaining her ...