United States District Court, S.D. New York
RONDA A. HARRISON, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
HONORABLE VERNON S. BRODERICK, United States District Judge,
REPORT AND RECOMMENDATION
PITMAN UNITED STATES MAGISTRATE JUDGE.
notice of motion dated June 23, 2015 and electronically filed
August 17, 2015 (Docket Item ("D.I.") 11),
defendant moves to dismiss, or, in the alternative, for
summary judgment dismissing, plaintiff's complaint on the
ground that it is untimely. For the reasons set forth below,
I respectfully recommend that defendant's motion for
summary judgment be granted and that the complaint be
dismissed as untimely.
commenced this action seeking judicial review of a final
decision of the Commissioner of Social Security (the
"Commissioner") denying her application for
disability insurance benefits ("DIB"); the action
is brought pursuant to Section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g) (the "Act").
submitted her application for DIB on December 19, 2011
(Declaration of Roxie Rasey Nicoll, dated June 14, 2015 (D.I.
14) ("Nicoll Decl."), Ex. 1, at 4). The claim was
initially denied on April 13, 2012 (Nicoll Decl., Ex. 1, at
4). Plaintiff subsequently requested a hearing, and an
Administrative Law Judge (an "ALJ") conducted a
hearing on June 17, 2013 (Nicoll Decl., Ex. 1, at 4).
Plaintiff was represented by an attorney at the hearing
(Nicoll Decl., Ex. 1, at 4). The ALJ concluded that plaintiff
suffered from edema, obesity, asthma, sleep apnea and
degenerative joint disease of the lumbosacral spine (Nicoll
Decl., Ex. 1, at 6). Nevertheless, he concluded that
plaintiff had the residual functional capacity to perform
sedentary work, with a number of limitations (Nicoll Decl.,
Ex. 1, at 7). The ALJ found that although plaintiff was not
capable of performing her past relevant work as a court
officer or lieuten-ant/sergeant,  she was capable of
performing the requirements of an information clerk,
telephone solicitor and order filler (Nicoll Decl., Ex. 1, at
timely requested review of the ALJ's decision, and on
December 24, 2014, the Appeals Council advised plaintiff that
it had denied her request for review (Nicoll Decl. ¶
3(a) & Ex. 2, at 1). 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:
to File a Civil Action
have 60 days to file a civil action (ask for court review).
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
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.
Decl., Ex. 2, at 2). The 65th day after December 24, 2014 was
February 27, 2015.
submitted her complaint to the Court's Pro Se
Office on March 4, 2015 (D.I. 2). There is no evidence in the
record that plaintiff ever sought an extension of time to
file her ...