Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Harrison v. Commissioner of Social Security

United States District Court, S.D. New York

March 27, 2017

RONDA A. HARRISON, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          TO THE HONORABLE VERNON S. BRODERICK, United States District Judge,

          REPORT AND RECOMMENDATION

          HENRY PITMAN UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         By 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.

         II. Facts

         Plaintiff 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").

         Plaintiff 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[1]).[2] 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, [3] she was capable of performing the requirements of an information clerk, telephone solicitor and order filler (Nicoll Decl., Ex. 1, at 10-11).

         Plaintiff 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:

         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). The 65th day after December 24, 2014 was February 27, 2015.

         Plaintiff submitted her complaint to the Court's Pro Se Office on March 4, 2015 (D.I. 2).[4] There is no evidence in the record that plaintiff ever sought an extension of time to file her ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.