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DeJesus v. Commissioner of Social Security

United States District Court, S.D. New York

March 3, 2017

NANCY M. DEJESUS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY Defendant.

          Ms. Nancy M. DeJesus Susan D. Baird, Esq. Assistant United States Attorney Southern District of New York U.S. Attorney's

          REPORT AND RECOMMENDATION

          HENRY PITMAN United States Magistrate Judge.

         TO THE HONORABLE ANALISA TORRES, United States District Judge, I. Introduction

         By 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 untimely.

         II. Facts

         Plaintiff 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").

         Plaintiff submitted her applications for DIB and SSI on February 29, 2012 (Complaint, filed May 26, 2015 (D.I. 2), attachment at 7[1]). 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 at 16).

         Plaintiff 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.")[2] ¶ 3(a) & Ex. 2, at 1[3]). 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 state:

         Time to File a Civil Action

• You have 60 days to file a civil action (ask for court review).
• 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.

         Plaintiff 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).[4] 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 ...


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