United States District Court, N.D. New York
OF PETER M. MARGOLIUS, Attorney for Plaintiff.
SECURITY ADMINISTRATION OFFICE OF REGIONAL GENERAL COUNSEL,
Attorney for Defendant.
M. MARGOLIUS, ESQ., FERGUS J. KAISER, ESQ.
DECISION AND ORDER
D'Agostino, U.S. District Judge.
18, 2014, Plaintiff filed this action, pursuant to 42 U.S.C.
§ 405(g), seeking judicial review of the Commissioner of
Social Security's ("Commissioner") final
decision denying his claim for supplemental security income
("SSI") benefits, filed on behalf of his minor
daughter, M.A.R.C. See Dkt. No. 1. Defendant filed a
motion to dismiss the complaint as untimely on November 18,
2014, which Plaintiff opposed. See Dkt. No. 8; Dkt.
No. 9. By Report and Recommendation dated October 19, 2016,
Magistrate Judge Thérèse Wiley Dancks
recommended that the Court dismiss the complaint as untimely.
See Dkt. No. 12 at 8. No objections to the Report
and Recommendation were filed.
November 21, 2011, Plaintiff protectively filed a Title XVI
application for SSI benefits on behalf of his minor daughter,
M.A.R.C.. See Dkt. No. 8-3 at 21. The claim was
initially denied on February 22, 2012. Id. Plaintiff
requested a hearing in front of an administrative law judge
("ALJ"), which occurred on January 17, 2013.
Id. On February 21, 2013, the ALJ issued an
unfavorable decision, determining that M.A.R.C. was not
disabled as defined under the Act. See id. at 36.
Plaintiff sought review of the ALJ's determination by the
Appeals Council, which was denied on May 7, 2014.
See Dkt. No. 1 at 5. In its Order, the Appeals
Council informed Plaintiff that if he disagreed with its
decision, he had sixty-days from the day he received the
denial in which to file a civil action seeking judicial
review of the Commissioner's decision. Id. at 3;
Dkt. No. 8-2 at 2. Pursuant to the regulations, the date of
receipt is presumed to be five days after the date of the
notice, absent a reasonable showing to the contrary. 20
C.F.R. § 416.1401. Plaintiff filed the current action on
July 18, 2014. Dkt. No. 1.
moved to dismiss Plaintiff's complaint as untimely,
alleging that the sixty-day time period to file this action
started running on May 7, 2014, the day the Appeals Council
sent notice of its action to Plaintiff. See Dkt. No.
8-3 at 3-4. In opposition, Plaintiff alleges that although
the notice itself is dated May 7, 2014, the envelope it was
received in was postmarked May 12, 2014. See Dkt.
No. 9 at 1-2. Therefore, Plaintiff contends, the date of
presumed receipt would be five days after that date, on May
17, 2014. See id.; 20 C.F.R. § 416.1401.
Further, Plaintiff asserts that because May 17, 2014 fell on
a weekend, notice was not actually received until May 19,
2014. See Dkt. No. 9 at 2. Under Plaintiff's
calculation, "[t]his civil action was electronically
filed on July 18, 2014, 60 days from the assumed receipt
date, thus making it timely." Id.
Report and Recommendation dated October 19, 2016, Magistrate
Judge Thérèse Wiley Dancks recommended that the
Court grant the Commissioner's motion and dismiss the
complaint as untimely. See Dkt. No. 12 at 8.
Specifically, Magistrate Judge Dancks stated that "[t]he
sixty-day limit has been found by the Supreme Court to be a
statute of limitations, and since the limit 'is a
condition on the waiver of sovereign immunity, ' it must
be strictly construed." Dkt. No. 12 at 4 (quoting
Bowen v. City of New York, 476 U.S. 467, 479
(1986)). Further, Magistrate Judge Dancks determined that,
even if it is accepted that the envelop was post-marked May
12, 2014, thus extending the date of presumed receipt to May
17, 2014, the complaint is nevertheless untimely. As noted by
Magistrate Judge Dancks, there is no authority in either the
statute or the regulations interpreting the statute for
Plaintiff's contention that in the event the presumptive
fifth day falls on a weekend or holiday, the sixty-day
statute of limitations period begins to run the next business
day. Dkt. No. 12 at 7; 42 U.S.C. § 405(g); 20 C.F.R.
§ 422.210(c). Finally, Magistrate Judge Dancks found
that although the statute of limitations in § 405(g) is
subject to equitable tolling, "Plaintiff has neither
sought equitable tolling nor presented evidence of due
diligence and extraordinary circumstances in this case."
Dkt. No. 12 at 8.
party files specific objections to a magistrate judge's
report, the district court engages in a de novo
review of "those portions of the report or specified
proposed findings or recommendations to which objection is
made." 28 U.S.C. § 636(b)(1). When a party files
"[g]eneral or conclusory objections or objections which
merely recite the same arguments [that he presented] to the
magistrate judge, " the court reviews those
recommendations for clear error. Chime v. Peak Sec. Plus,
Inc., 137 F.Supp.3d 183, 187 (E.D.N.Y. 2015) (quotation
omitted). After the appropriate review, "the court may
accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge." 28
U.S.C. § 636(b)(1). However, failure to object timely to
any portion of a magistrate's report operates as a waiver
of further judicial review of those matters. Roland v.
Racette, 984 F.2d 85, 89 (2d Cir. 1993) (quoting
Small v. Sec'y of Health & Human Servs., 892
F.2d 15, 16 (2d Cir. 1989)).
carefully reviewed the entire record in this matter and the
applicable law, the Court finds that Magistrate Judge Dancks
correctly determined that Plaintiff's complaint is
untimely and that nothing in the record supports the
application of equitable tolling. In Myer v. Colvin,
No. 1:14-cv-883, 2015 WL 224749 (N.D.N.Y. Jan. 15, 2015), a
factually identical case, the plaintiff raised the same
arguments as those presently before the Court, which Judge
Hurd rejected. By regulation, section 405(g) has been
interpreted to require that judicial review "be
instituted within 60 days after the Appeals Council's
notice of denial of request for review of the administrative
law judge's decision or notice of the decision by the
Appeals Council is received by the individual [.]" 20
C.F.R. § 422.210(c). Accordingly, "[r]ather than
commencing on the date notice of decision is [issued or]
mailed to the claimant, the sixty day period starts from the
time notice is received by the claimant."
Matsibekker v. Heckler, 738 F.2d 79, 81 (2d Cir.
1984) (emphasis omitted). "[T]he date of receipt ... is
presumed to be 5 days after the date of such notice, unless
there is a reasonable showing to the contrary." 20
C.F.R. § 422.210(c); Matsibekker, 738 F.2d at
purposes of the pending motion, the Court will accept
Plaintiff's assertion that the Appeals Council notice was
not mailed until May 12, 2014, despite Plaintiff's
failure to submit any relevant evidence in support of this
assertion. See Myer, 2015 WL 224749, at *3 (finding
that the plaintiff failed to rebut the presumption of receipt
where her complaint was unverified, and she submitted no
affidavits, declarations or other evidence showing that she
did not receive the notice). Even assuming the notice was
mailed on May 12, 2014, and received by Plaintiff's
counsel on Saturday, May 17, 2014, Plaintiff's appeal was
not filed until July 18, 2014, sixty-two days after receipt
of the notice. As correctly noted by Magistrate Judge Dancks,
Plaintiff has failed to provide any support for his argument
that, since the notice was received on a weekend, the date of
receipt for purposes of the filing requirement was Monday,
May 19, 2014. As the court held in Myer, neither 42