United States District Court, S.D. New York
MICHELLE L. NATALE, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER
KATHARINE H. PARKER, United States Magistrate Judge
Michelle L. Natale, proceeding pro se, filed this action
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3)
seeking judicial review of a decision of the Commissioner of
Social Security (the “Defendant” or
“Commissioner”) denying her application for
disability insurance benefits (“DIB”) under Title
II of the Social Security Act (the “Act”). For
the following reasons, the Commissioner's motion to
dismiss is GRANTED.
filed an application for DIB on September 11, 2015 for
obesity, irritable bowel syndrome, Crohn's disease,
syncope, psychiatric issues, and a left shoulder impairment.
(Declaration of Cristina Prelle, dated March 29, 2017
(“Prelle Decl.”) Exhibit (“Ex.”)
An administrative law judge issued an unfavorable decision on
July 6, 2016 denying Plaintiff's application for DIB.
(Id.) Plaintiff then requested review of the
decision by the Appeals Council, which denied Plaintiff's
request on December 1, 2016. (Prelle Decl. Ex. 2.) The
Appeals Council mailed Plaintiff a notice of its decision on
December 1, 2016, advising Plaintiff that she had the right
to commence a civil action within sixty days of receipt of
the notice, which would be presumed to be five days after the
date of the notice. (Prelle Decl. ¶ 3(a); id.
Ex. 2.) The notice also informed Plaintiff that if she could
not file a civil action within sixty days, she could ask the
Appeals Council to extend her time to file if she had a good
reason for needing more time. (Prelle Decl. Ex. 2.)
then filed her Complaint using a Southern District form and
dated the Complaint February 7, 2017. (Compl. at 3.) The pro
se Clerk's Office received and processed the Complaint
that same day. (Id. at 1.) In her Complaint,
Plaintiff asserts that she received the Appeals Council's
notice on December 8, 2016. (Id. at 2.) Plaintiff
did not request an extension of time to file her civil action
from the Appeals Council. (Prelle Decl. ¶ 3(b).) On May
22, 2017, the Commissioner moved to dismiss the Complaint as
untimely pursuant to Federal Rule of Civil Procedure
12(b)(6), or in the alternative Federal Rule 56. (Doc. No.
10.) On June 26, 2017, the Court issued an order directing
Plaintiff to file an opposition to the motion by July 21,
2017. (Doc. No. 15.) Plaintiff did not oppose the motion to
exclusive remedy for a plaintiff who seeks judicial review of
the Commissioner's final decision is provided for by
Sections 205(g) and (h) of the Social Security Act. 42 U.S.C.
§§ 405(g), (h); see also Wong v. Bowen,
854 F.2d 630, 631 (2d Cir. 1988). The provisions set forth a
sixty-day period in which a plaintiff must commence his or
her civil suit, “or within such further time as the
Commissioner of Social Security may allow.” 42 U.S.C.
§ 405(g). The sixty-day period begins on the date the
Appeals Council notice is received, and a Plaintiff is
presumed to have received the notice five days after it is
dated. 20 C.F.R. 422.210(c); see also Wong, 854 F.2d
at 631. Further, the Clerk's Office must receive the
Plaintiff's complaint within the sixty-day period.
See Zerilli-Edelglass v. New York City Transit
Auth., 333 F.3d 74, 78 (2d Cir. 2003).
the limitations period “defines the terms on which the
United States waives its sovereign immunity and consents to
be sued, it is strictly construed” even where the delay
is minor and the plaintiff is pro se. Davila v.
Barnhart, 225 F.Supp.2d 337, 338 (S.D.N.Y. 2002)
(citations omitted); Randell v. United. States, 64
F.3d 101, 106 (2d Cir. 1995); Borrero v. Colvin, No.
14CV5304-LTS-SN, 2015 WL 1262276, at *3 (S.D.N.Y. Mar. 19,
2015) (collecting cases). Therefore, “[f]ailure to file
a complaint within the statutory limitation most often
requires dismissal of the case . . . .”
Borrero, 2015 WL 1262276, at *3. There are, however,
cases where the equities in favor of tolling the limitations
period are “so great that deference to the agency's
judgment is inappropriate.” Bowen v. City of
N.Y., 476 U.S. 467, 480 (1986) (quoting Mathews v.
Eldridge, 424 U.S. 319, 330 (1976)). To qualify for
equitable tolling, a plaintiff must “show that
‘he has been pursuing his rights diligently' and
that ‘some extraordinary circumstance stood in his
way.'” Torres v. Barnhart, 417 F.3d 276,
279 (2d Cir. 2005) (quoting Pace v. DiGuglielmo, 544
U.S. 408, 418 (2005)). Plaintiff bears the burden of
establishing the exceptional circumstances warranting
equitable tolling, Davila, 225 F.Supp.2d at 339, and
it should only be applied in the “rare case, ”
Bowen, 476 U.S. at 481.
statute of limitations defense based exclusively on dates
contained in the complaint or appended materials may be
properly asserted by a defendant in a Rule 12(b)(6) motion.
Rodriguez ex rel. J.J.T. v. Astrue, No. 10-cv-9644
(PAC) (JLC), 2011 WL 7121291, at *2 (S.D.N.Y. July 25, 2011),
adopted by, 2012 WL 292382, at *1-2 (S.D.N.Y. Jan.
31, 2012). Indeed, a motion to dismiss on statute of
limitations grounds generally is treated as a motion to
dismiss for failure to state a claim upon which relief can be
granted pursuant to Rule 12(b)(6). Id. (quotations
omitted). Accordingly the Court “must accept all
factual allegations in the complaint as true and draw
inferences from those allegations in the light most favorable
to the plaintiff.” Jaghory v. N.Y.State Dep't
of Educ., 131 F.3d 326, 329 (2d Cir. 1997) (citations
Application Of Legal Standard
Commissioner argues that Plaintiff's action is barred by
the time limitation specified in Section 205(g) of the Act
because it was not commenced within sixty days after the
final decision of the Commissioner. The Appeals Council
issued its decision denying Plaintiff's request for
review on December 1, 2016, and expressly notified Plaintiff
that she had sixty days from the date of receipt of the
notice to file a complaint. There is no dispute that
Plaintiff received the notice and that the notice was dated
December 1, 2016, but Plaintiff alleges in her Complaint that
she did not receive the notice until December 8, 2016.
Plaintiff is presumed, however, to have received the Appeals
Council's notice five days after the date on the notice,
“unless there is a reasonable showing to the
contrary.” 20 C.F.R. § 422.210(c). Plaintiff has
produced no such evidence to support her statement that she
received the notice on December 8, 2016. However, whether
Plaintiff received the notice on December 8, 2016, the date
she alleged, or December 6, 2016, five days after the notice
was dated, Plaintiff's Complaint is untimely. Plaintiff
was required to file her Complaint by February 6, 2017 at the
latest, which is sixty days after December 8, 2016. But
Plaintiff's Complaint was not filed until February 7,
2017, one day after her time expired. (Prelle Decl. ¶
3(c); Compl. at 1.)
reviewing the Complaint in the light most favorable to
Plaintiff, there is nothing to indicate that she is entitled
to equitable tolling. Although Plaintiff's delay was
slight, her Complaint was nonetheless untimely, and she does
not point to any extraordinary circumstances to excuse the
delay. Plaintiff also was advised that she had an opportunity
to seek an extension of time to file her Complaint with the
Appeals Council, but Plaintiff did not request an extension
of time. (Prelle Decl. ¶ 3(b).) Additionally, Plaintiff
failed to oppose the Commissioner's motion to dismiss and
thus she did not explain why she was late in filing her
Complaint or provide any diligent steps that she took to
attempt to meet the sixty-day deadline.
Plaintiff is not entitled to equitable tolling of the statute
of limitations and Defendant's motion to dismiss the
Complaint as time-barred is granted. See Galage v.
Colvin, No. 15-cv-3305 (GBD) (RLE), 2015 WL 9684602, at
*3 (S.D.N.Y. Oct. 23, 2015), adopted by, 2016 WL
94253 (S.D.N.Y. Jan. 7, 2016) (denying plaintiff's
request for equitable tolling where plaintiff neither
demonstrated reasonable diligence nor pled facts constituting
extraordinary circumstances for equitable tolling);
Davila, 225 F.Supp.2d at 340 (acknowledging that
“the strict application of the traditional principles
of equitable tolling seems particularly harsh” where
plaintiff “filed her complaint only one day late,