United States District Court, E.D. New York
MEMORANDUM & ORDER
M. AZRACK UNITED STATES DISTRICT JUDGE
the Court is the Commissioner of Social Security's motion
to dismiss the instant action filed by pro se
plaintiff Angela Maria Onciu-Floria (“Plaintiff”)
seeking review of the Commissioner's decision denying
Plaintiff disability insurance benefits. For the following
reasons, the Commissioner's motion is GRANTED, and this
action is dismissed as untimely.
March 4, 2015, Plaintiff filed an application for disability
insurance benefits with the Social Security Administration.
(Prelle Decl., ECF No. 20-3, Ex. 1.) Following denial of her
claim, Plaintiff requested, and appeared with her attorney
for, a video administrative hearing before an administrative
law judge (“ALJ”) on November 14, 2017.
(Id.) The ALJ issued a written decision dated
January 23, 2018, finding that Plaintiff was not disabled for
purposes of receiving disability insurance benefits under the
Social Security Act. (Id.) The ALJ's decision
became the final decision of the Commissioner when the
Appeals Council denied Plaintiff's request for review on
May 14, 2018. (Id. ¶ 3(a), Ex. 2.) Both the
January 23, 2018 ALJ decision and the May 14, 2018 Appeals
Council Notice denying review were mailed to Plaintiff at the
same address listed on her complaint in the instant action,
as well as to her attorney in the administrative action.
(Id. ¶ 3(a), Exs. 1, 2.)
complaint, filed pro se on August 7, 2018, Plaintiff
filled in “June 6, 2018” as the date she received
the Appeals Council Notice, and appended a copy of the May
14, 2018 Notice. (Compl., ECF No. 1.) In addition, included
in her opposition papers to the Commissioner's motion is
a letter dated June 7, 2018 from Citizen Disability, LLC, the
organization that represented her in the administrative
action. (Pl.'s Mot., ECF No. 21, at 6.) This letter
informed Plaintiff of the May 14, 2018 Appeals Council Notice
and stated that Citizens Disability, LLC could not represent
her in a Federal District Court appeal of the
Commissioner's decision. (Id.) Notably, the
letter also stated quite clearly, in two different places,
that Plaintiff had until July 13, 2018 (sixty days
from the date of the Appeals Council Notice) to file an
appeal in Federal District Court. (Id.)
plaintiff who seeks review of the Commissioner's final
decision must commence her civil action within a sixty-day
period or “within such further time as the Commissioner
of Social Security may allow.” 42 U.S.C. § 405(g).
The regulations set forth that the sixty-day period begins on
the date the Appeals Council Notice is received, and, absent
a “reasonable showing to the contrary, ” a
plaintiff is presumed to have received the notice five days
after the date of the notice. 20 C.F.R. § 422.210(c);
see Wong v. Bowen, 854 F.2d 630, 631 (2d Cir. 1988);
Borrero v. Colvin, No. 14-CV-5304, 2015 WL 1262276,
at *3 (S.D.N.Y. March 19, 2015) (collecting cases).
this limitation period “defines the terms on which the
United States waives its sovereign immunity and consents to
be sued, it is strictly construed.” Davila v.
Barnhart, 225 F.Supp.2d 337, 338 (S.D.N.Y. 2002) (citing
Bowen v. City of New York, 476 U.S. 467, 479 (1986);
Randell v. United States, 64 F.3d 101, 106 (2d Cir.
1995)). Therefore, “[f]ailure to file a complaint
within the statutory limitation most often requires dismissal
of the case, even where the delay is minor and the plaintiff
is pro se.” Borrero, 2015 WL 1262276,
at *3 (collecting cases).
rebut the presumption that she received the Appeals Council
Notice late, “[P]laintiff must do more than merely
assert that [s]he did not receive the notice within five
days”-she must make a reasonable showing by
“present[ing] some affirmative evidence indicating that
the actual receipt occurred more than five days after
issuance.” Liranzo v. Astrue, 07-CV-5074, 2010
WL 626791, at *2 (E.D.N.Y. Feb. 23, 2010) aff'd
411 Fed.Appx. 390 (2d Cir. 2011) (quoting Guinyard v.
Apfel, 99-CV-4242, 2000 WL 297165, at *3 (S.D.N.Y. Mar.
Plaintiff's complaint represents that she received the
Appeals Council Notice on June 6, 2018. (Compl.) However, in
her opposition papers, Plaintiff asserts that the June 7,
2018 letter from Citizen Disability, LLC was the only one she
received, which led her to file her complaint on August 7,
2018. (ECF No. 21, at 6.) She does not state when she
received the June 7, 2018 letter, or if it contained the
Appeals Council Notice. While it is clear that Plaintiff did
at some point receive the Appeals Council Notice (because she
appended it to her complaint), the Citizen Disability, LLC
letter does not indicate that it includes any enclosures,
such as the Appeals Council Notice. (ECF No. 21, at 6.)
Plaintiff's papers fail to adequately explain when or how
she received the Appeals Council Notice, and nowhere does she
expressly state that she did not receive it from the Social
Security Administration. Accordingly, Plaintiff has not
provided any affirmative evidence that she received the
Appeals Council Notice more than five days after its issuance
on May 14, 2018, including no specific evidence to support
the contention that she received it on either June 6, 2018 or
June 7, 2018. As there is no evidence that Plaintiff
requested that the Appeals Council extend the time which to
file a civil action, (Prelle Decl. ¶ 3(c)),
Plaintiff's complaint is untimely.
the inquiry does not end there because the doctrine of
equitable tolling applies to Social Security cases. See
Torres v. Barnhart, 417 F.3d 276, 279 (2d Cir. 2005). A
litigant is entitled to equitable tolling where she
“can show that ‘[s]he has been pursuing [her]
rights diligently' and that ‘some extraordinary
circumstance stood in [her] way.'” Id.
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418
(2005)). Plaintiff must “demonstrate a causal
relationship between the extraordinary circumstances on which
the claim for equitable tolling rests and the lateness of
[her] filing.” Jenkins v. Greene, 630 F.3d
298, 303 (2d Cir. 2010) (internal quotation omitted); see
also Baker v. Comm'r of Soc. Sec., No. 16-CV-5285,
2019 WL 1994051, at *2 (E.D.N.Y. May 6, 2019) (applying
Jenkins causal relationship standard to a Social
Security case). Plaintiff bears the burden of proving that
equitable tolling applies, and she has failed meet her burden
here. Randolph v. Comm'r of Soc. Sec., 699
Fed.Appx. 36, 37 (2d Cir. 2017) (citing Boos v.
Runyon, 201 F.3d 178, 185 (2d Cir. 2000)).
there is no evidence that Plaintiff was pursuing her rights
diligently. While Plaintiff contends that she
“immediately” attempted to find representation
after receiving the letter from Citizens Disability, LLC, the
identified dates in her correspondence with potential
attorneys took place nearly two months after the letter and
post-date her July 18, 2018 deadline to file an
appeal.(See ECF No. 21, at 12, 14-15.)
This does not demonstrate diligent pursuit of her rights, nor
does searching for representation otherwise prevent the
timely filing of an appeal.
Plaintiff fails to offer any explanation as to why she did
not consider the warning within the Citizens Disability, LLC
letter that she had to file any appeal in Federal District
Court by July 13, 2018. Failing to heed these clear and
unambiguous warnings undermines any claim that Plaintiff was
pursuing her rights diligently.
there was evidence that Plaintiff was pursuing her rights
diligently, she has failed to identify any
“extraordinary circumstance” that stood in her
way and prevented her from timely filing an appeal. The
receipt of the Citizens Disability, LLC letter undercuts any
suggestion that Plaintiff may have been confused or misled
regarding the deadline by which to commence her appeal.
Plaintiff does provide evidence of various doctors'
visits and one outpatient hospital visit after the date of
the Appeals Council Notice and asserts that she has
“been through a lot of excruciating pain.”
(See ECF No. 21, at 18, 19-42.) However, illness and
poor health do not typically rise to the standard of an
extraordinary circumstance in the context of a social
security claim. See, e.g., Wong,
854 F.2d at 631 (noting that allowing equitable tolling
“on grounds of poor health would thoroughly undermine
Section [405(g)'s] sixty-day limitation”). More
critically, Plaintiff does not explain how her health