Opinion
19-CV-1718 (GBD) (JLC)
01-27-2020
CARMEN RAMOS, Plaintiff, v. ANDREW M. SAUL, Commissioner, Social Security Administration, Defendant.
Honorable George B. Daniels, United States District Judge
REPORT AND RECOMMENDATION
JAMES L. COTT, UNITED STATES MAGISTRATE JUDGE.
Pro se Plaintiff Carmen Ramos brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social Security denying her claim for disability insurance benefits. The Commissioner has moved to dismiss the Complaint on the ground that it was not timely filed. For the reasons that follow, I recommend that the motion be granted.
I. BACKGROUND
Ramos applied for disability insurance benefits on March 16, 2015. See Declaration of Janay Podraza, dated August 21, 2019 (“Podraza Decl.”) (Dkt. No. 18), Exhibit 1, at ECF page number 4. The application was denied, and Ramos requested a hearing, which was held by video on December 8, 2016. Id. Thereafter, the Administrative Law Judge (“ALJ”) denied Ramos's claim for benefits in a decision issued on January 26, 2017 (the “ALJ's Decision”). Podraza Decl. ¶ 3(a), Exhibit 1.
The Commissioner submitted the Podraza Declaration in support of his motion. Podraza is Acting Chief of Court Case Preparation and Review Branch 4 of the Office of Appellate Operations, Office of Disability Adjudication and Review, Social Security Administration. Podraza Decl. at 1.
Ramos then sought review of the ALJ's Decision, and on December 15, 2017, the Appeals Council denied the request for review (“the Council Notice” or “the Notice”). Id., Exhibit 2. The Council Notice denying the request for review was sent to Ramos at PO Box 130, Bronx, New York, 10475, with her attorney copied. Id., Exhibit 2, at 1. The Notice informed Ramos that she had 60 days from receipt of the Notice to file a civil action in federal court. Id., Exhibit 2, at 2. The Council Notice further stated that the date of receipt was assumed to be five days after the date of the letter, unless Ramos could show that she did not receive it within the five-day period. Id.
Ramos, proceeding pro se, filed her Complaint using a Southern District form on February 22, 2019. Dkt. No. 2. She also submitted a Request to Proceed In Forma Pauperis, which was granted by the Court on March 22, 2019. Dkt. Nos. 1, 4. Ramos alleged in her Complaint that she was “not sure o[f the] date” when she received the Council Notice. Compl. ¶ 8.
On October 23, 2019, the Commissioner moved to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure or, in the alternative, for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Commissioner's Memorandum of Law in Support of Motion to Dismiss (“Comm. Mem.”), Dkt. No. 17, at 1. Specifically, the Commissioner contends that Ramos's Complaint should be dismissed as untimely pursuant to 42 U.S.C. § 405(g) because the action was not commenced within 60 days after her presumed receipt of the Council's Notice (that is, the final decision of the Commissioner). Id. at 5.
On December 5, 2019, Ramos filed an affidavit in opposition to the Commissioner's motion. Affidavit in Opposition to Defendant's Motion to Dismiss (“Pl. Aff.”), Dkt. No. 21. In her affidavit, Ramos offered the following explanation for her delay in commencing suit:
I have no recollection of ever receiving a copy of the Notice from the Social Security Administration. I have complained on several occasions, all documented, to the manager of the local post office regarding instances of missing mail.
In March of 2019, after not hearing from my attorney at the time, I called my attorney to check on my appeal and I was advised that I had missed the deadline for an appeal. At that point, my attorney e[-]mailed me a copy of the Notice from the Social Security Appeals Council denying my appeal of the ALJ decision. My attorney also declined to represent me any further. I was never advised that I might have a right to have the statute of limitations equitably tolled because of the unique circumstances that had caused me to miss the deadline.Pl. Aff. ¶¶ 4, 5. Ramos explained that such circumstances began in September 2017 when Hurricane Maria devastated Puerto Rico, where her elderly mother “was living alone in an isolated part of the Island.” Id. ¶ 7. Ramos flew to Puerto Rico in November 2017 “to make arrangements for the security and welfare of [her] mother, who refused to leave the Island” when Ramos returned to the mainland in December 2017. Id. During the early months of 2018, Ramos “was completely focused on trying to monitor and manage [her] mother's situation and care remotely from the United States.” Id. ¶ 8. In April 2018, Ramos learned that her mother had passed away:
The circumstances around her death were incomplete, and the inability to get answers increased my distress and anxiety. I was completely distraught by her death and ridden with guilt. It took several weeks of frustrating efforts to arrange to have her body sent to the U.S. for burial. I then spent several more weeks with my sister trying to settle her affairs. At this point, my chronic illnesses, including severe back pain, diverticulosis, and fibromyalgia flared up and I became severely depressed. I spent the remainder of the year seeing numerous doctors and on a copy of occasions being hospitalized trying to find out what was wrong with me. My physical, psychological and emotional incapacity continued for the rest of 2018.
With assistance, I began to stabilize physically and emotionally at the end of 2018. . . .Id. ¶¶ 9, 10. Accordingly, given these circumstances, Ramos seeks equitable tolling of the statutory period.
On December 19, 2019, the Commissioner filed his reply papers, maintaining that Ramos failed to rebut the presumption that she and her representative received the Council's Notice by December 20, 2017 and contending that the filing deadline should not be equitably tolled. Commissioner's Reply Memorandum of Law in Support of Motion to Dismiss (“Reply”), Dkt. No. 23.
II. DISCUSSION
A. Standard of Review
“A statute of limitations defense, based exclusively on dates contained within the complaint or appended materials, may be properly asserted by a defendant in a Rule 12(b)(6) motion.” Pressley v. Astrue, No. 12-CV-8461 (NSR) (PED), 2013 WL 3974094, at *4 (S.D.N.Y. Aug. 2, 2013) (citing Rodriguez ex rel. J.J.T. v. Astrue, 2011 WL 7121291, at *2). Indeed, Rule 12(b)(6) provides “the most appropriate legal basis” for a motion to dismiss on statute of limitations grounds “because expiration of the statute of limitations presents an affirmative defense.” Twumwaa v. Colvin, No. 13-CV-5858 (AT) (JLC), 2014 WL 1928381, at *2 (S.D.N.Y. May 14, 2014) (quoting Nghiem v. U.S. Dep't of U.S. Veterans Affairs, 451 F.Supp.2d 599, 602 (S.D.N.Y. 2006)), adopted by Order dated July 29, 2014 (Dkt. No. 19). The Court, therefore, will consider the Commissioner's motion to dismiss pursuant to Rule 12(b)(6). Accordingly, in deciding the motion, 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. New York State Dep't of Educ., 131 F.3d 326, 329 (2d Cir. 1997).
In considering the motion under Rule 12(b)(6), the Court treats Ramos's affidavit as the equivalent of a memorandum in opposition to the motion. However, to the extent that her affidavit should be considered as a submission outside the pleadings, then the motion can be adjudicated as one for summary judgment and the Court will view the evidence in the light most favorable to Ramos, as required by law. See Wachovia Bank Nat'l Ass'n v. VCG Special Opportunities Master Fund, Ltd., 661 F.3d 164, 171 (2d Cir. 2011) (court is “required to assess each motion on its own merits and to view the evidence in the light most favorable to the party opposing the motion, drawing all reasonable inferences in favor of that party”). To that end, the Commissioner appropriately provided Ramos with a notice pursuant to Local Rule 56.2. Dkt. No. 16-2.
B. Ramos's Social Security Claim
1. The Complaint Is Untimely
It is well-established that the United States cannot be sued without its consent. See, e.g., United States v. Navajo Nation, 556 U.S. 287, 289 (2009); Cnty. of Suffolk, N.Y. v. Sebelius, 605 F.3d 135, 140 (2d Cir. 2010). Ramos seeks review of the Commissioner's final decision denying her benefits pursuant to the Social Security Act (the “Act”), 42 U.S.C. § 405(g), which provides the requisite consent to be sued:
Any individual, after any final decision of the Commissioner of Social Security . . . may obtain a review of such a decision by a civil action commenced within 60 days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow . . . .42 U.S.C. § 405(g).
The Act provides that the remedy available under Section 205(g), codified at 42 U.S.C. § 405(g), is exclusive. Specifically, “[n]o findings of fact or decision of the Commissioner of Social Security shall be reviewed by any person, tribunal, or governmental agency except as herein provided.” 42 U.S.C. § 405(h).
The Code of Federal Regulations establishes further guidelines regarding the statute of limitations for filing a civil action pursuant to this exclusive remedy provision:
Any civil action . . . must be instituted within 60 days after the Appeals Council's notice of denial of request for review of the presiding officer's decision or notice of the decision by the Appeals Council is received by
the individual. . . . [T]he date of receipt of . . . notice of the decision by the Appeals Council shall be 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). “Because this period defines the terms on which the United States waives its sovereign immunity and consents to be sued, it is strictly construed.” Paniagua v. Comm'r of Soc. Sec., No. 15-CV-2038 (JCM), 2017 WL 699117, at *2 (S.D.N.Y. Feb. 21, 2017) (citing Bowen v. City of New York, 476 U.S. 467, 479 (1986)) (citations omitted). The Supreme Court has stated that “an interpretation that would allow a claimant judicial review simply by filing and being denied a petition to reopen his claim would frustrate the congressional purpose, plainly evidenced in [the Act], to impose a 60-day limitation upon judicial review of the Secretary's final decision.” Califano v. Sanders, 430 U.S. 99, 108 (1977).
Here, the Appeals Council issued its decision denying Ramos's request for review on December 15, 2017, and specifically informed Ramos that she had 60 days after receipt of the Notice to file a civil action. Under the regulation, an applicant is presumed to have received an Appeals Council notice five days after the date of such notice. 20 C.F.R. § 422.210(c). Ramos (and her representative) is therefore presumed to have received the Notice on December 20, 2017. Given that timeline, Ramos was required to file a civil action 60 days after December 20, 2017, or by February 20, 2018. 42 U.S.C. § 405(g); 20 C.F.R. § 422.210(c). However, Ramos did not file her Complaint until February 22, 2019, more than one year later. Nor does Ramos allege-and the record does not reflect-that she sought an extension of time to file her Complaint.
The 60th day fell on Sunday, February 18, 2018, and the following day, February 19, 2018, was Presidents' Day, a federal court holiday. Thus, Ramos had until Tuesday, February 20, 2018, to file her Complaint. See Fed. R. Civ. P. 6(a)(1)(A)-(C) (when last day of period falls on weekend or holiday, deadline moves to court's next business day).
Instead, she alleges, in conclusory fashion, that she never received the Council's Notice and that she was not advised that she had missed the deadline for an appeal until March 2019 when she called her attorney. Pl. Aff. ¶ 5. I agree with the Commissioner that this date must be a typographical error given the chronology of events and that she must have meant March 2018. See Reply at 2 n.1. According to Ramos, “[a]t that point my attorney e[-]mailed me a copy of the Notice . . . . and also declined to represent me any further.” Pl. Aff. ¶ 5. Even if Ramos never, in fact, received the Council's Notice until her attorney provided her with a copy, she does not allege that her attorney also did not receive a copy of the December 15, 2017 notice. Her attorney did, in fact, receive the Council's Notice because she was able to forward a copy to Ramos.
In her Complaint, Ramos alleges only that she is “not sure” of the date on which she received the Notice. Compl. ¶ 8.
It would make no sense for Ramos to file her Complaint pro se in February 2019 before calling her attorney the next month. Rather, she did so only after learning “[her] original attorney resigned . . . .” in March 2018. Pl. Aff. ¶ 10.
Ramos also does not allege that her attorney had only recently received the Council's Notice. Indeed, according to Ramos, her attorney informed her that the time to appeal had elapsed, implying that the attorney had not belatedly received the Notice. Her attorney presumably neglected to timely advise Ramos of the deadline to commence an action in federal court and/or to seek an extension of time to do so. Harsh as it may seem, clients are bound by the action-or, in this case, the inaction-of their attorneys when they act in their representative capacities. See, e.g., Reilly v. Natwest Markets Group Inc., 181 F.3d 253, 271 (2d Cir. 1999) (“civil litigants are bound by the acts and omissions of their freely selected attorneys”). Because Ramos's counsel's failure to file a timely appeal (or seek an extension to do so) is fairly attributed to Ramos herself, and because Ramos has not otherwise rebutted the presumption of timely receipt of the Notice, the Complaint should be deemed untimely.
The Court is cognizant that most, if not all, of the fault in the delay in filing the Complaint may lie with Ramos's counsel, whose conduct will result in detrimental consequences to Ramos herself, such as her inability to pursue her claim, if this Report and Recommendation is adopted. While the Court sees no reason not to hold Ramos to her attorney's inaction in this case, Ramos may have some form of remedy for negligence by her counsel in another forum.
2. Equitable Tolling Is Not Warranted
Although Ramos's Complaint is untimely, the Court can still review it if the doctrine of equitable tolling applies. See Bowen, 476 U.S. at 479. “[C]ases may arise where the equities in favor of tolling the limitations period are ‘so great that deference to the [Social Security Administration's] judgment is inappropriate.'” Id. at 480 (quoting Matthews v. Eldridge, 424 U.S. 319, 329 (1976)). To this end, the Supreme Court has held that the application of the doctrine of equitable tolling to the 60-day requirement of Section 405(g) is “fully ‘consistent with the overall congressional purpose' and is ‘nowhere eschewed by Congress.'” Bowen, 476 U.S. at 480 (quoting Honda v. Clark, 386 U.S. 484, 501 (1967)).
Equitable tolling “permits courts to deem filings timely where a litigant can show that ‘[s]he has been pursuing [her] rights diligently' and that ‘some extraordinary circumstance stood in [her] way.'” Torres v. Barnhart, 417 F.3d 276, 279 (2d Cir. 2005) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)). Application of the doctrine is appropriate, however, only “in rare and exceptional circumstances in which a party is prevented in some extraordinary way from exercising [her] rights.” Zerilli-Edelglass v. N.Y. Transit Auth., 333 F.3d 74, 80 (2d Cir. 2003) (internal citations and quotations omitted); see also, e.g., Bowen, 476 U.S. at 481 (equitable tolling appropriate where “Government's secretive conduct prevent[ed] plaintiffs from knowing of a violation of rights”); Canales v. Sullivan, 936 F.2d 755, 759 (2d Cir. 1991) (equitable tolling may be warranted for untimely complaint where claimant had mental impairment).
In examining the record in the light most favorable to Ramos, I find that there is nothing before the Court to demonstrate that she has been diligently pursuing her rights or that any “extraordinary” circumstances caused her to file her Complaint after the 60-day period had expired. See Torres, 417 F.3d at 279. In her affidavit, Ramos contends that the Commissioner's motion should be denied “[g]iven the extraordinary personal trauma arising out of the catastrophic disaster of Hurricane Maria, and the adverse consequences on her health and the impact on her understanding of her rights and her ability to take actions to preserve her rights in a timely manner . . . .” Pl. Aff. at 3. Ramos undoubtedly experienced a tremendous hardship in attempting to care for her elderly mother in the wake of Hurricane Maria and settling her mother's affairs after she passed away. However, the Court does not see how it could apply equitable tolling when the natural disaster underlying Ramos's equitable tolling claim occurred in September 2017, approximately three months before the time she would have been informed about the Council's Notice issued in December 2017. Moreover, Ramos reports that she returned home in December 2017 following her trip to Puerto Rico and remained on the mainland thereafter. This is thus not a case where a plaintiff alleges that she was out of the country during the period in which she was otherwise required to file her complaint due to exigent circumstances, which might potentially justify tolling. Moreover, even if her lack of actual notice is due to her attorney's conduct rather than her own, there is no indication that Ramos reached out to her attorney before March 2018 regarding the status of her case, thereby waiting more than a year after requesting review by the Appeals Council in January 2017 before following up with counsel. Ramos therefore had not been “reasonably diligent” in pursing her rights. See, e.g., Lago v. Niles, No. 11-CV-2083 (SJF), 2012 WL 373341, at *3 (E.D.N.Y. Feb. 1, 2012) (writing counsel twice during statutory period did not constitute reasonable diligence).
The rest of Ramos's affidavit is presented in paragraph form, but the language cited here is in a concluding, unnumbered paragraph on page three of the affidavit.
Ramos's now pro se status may also not be the basis for equitable tolling. See, e.g., Hans v. Comm'r of Soc. Sec., No. 16-CV-270 (RRM), 2019 WL 1099951, at *2 (E.D.N.Y. Feb. 28, 2019) (dismissing pro se complaint filed seven days late); Monje v. Shalala, No. 93-CV-4707 (MBM), 1995 WL 540028, at *3 (S.D.N.Y. Sept. 4, 1995) (dismissing pro se Social Security complaint filed six days late), aff'd, 112 F.3d 504 (2d Cir. 1996).
Ramos's contention that her illnesses, including depression, prevented her from proceeding in a timely fashion is equally unavailing. To be sure, illness or mental impairment is sufficient in some circumstances to justify the application of equitable tolling. See Canales, 936 F.2d at 758-59. Ramos, however, has not established that this is such a case. To toll the statute of limitations based on illness or mental impairment, a petitioner must make more than a “conclusory and vague claim, ” that includes “a particularized description of how her condition adversely affected her capacity to function generally or in relationship to the pursuit of her rights[.]” Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000); see also Twumwaa, 2014 WL 1928381, at *4 (claims that plaintiff was “stressed” and “in pain” were insufficient to invoke tolling); Courtney v. Colvin, No. 13-CV-02884 (AJN), 2014 WL 129051 (S.D.N.Y. Jan. 14, 2014) (alleged illness did not justify equitable tolling without connection to plaintiff's ability to meet deadline). This is because “[a]llowing disability claimants who have been denied benefits to toll the sixty-day period on grounds of poor health would thoroughly undermine Section 205(g)'s sixty-day limitation period.” Wong v. Bowen, 854 F.2d 630, 631 (2d Cir. 1988) (dismissing complaint filed 30 days late even though plaintiff claimed that serious illness prevented her from filing sooner); see also Bender v. Astrue, No. 09- CV-5738 (KAM), 2010 WL 3394264, at *4 (E.D.N.Y. Aug. 23, 2010) (“poor health is generally not grounds for equitable tolling under 42 U.S.C. § 405(g)”).
Here, although Ramos reports that she was “physical[ly], psychological[ly, ] and emotional[ly] incapacit[ated]” after learning of her mother's passing in April 2018, see Pl. Aff. ¶ 9, she does not aver that she was incapacitated heretofore. Indeed, Ramos's conduct demonstrates that she was not too incapacitated to pursue her legal rights during the 60-day period after she and her representative presumably received the Council's Notice in December 2017. Rather, by her own admission, Ramos had the wherewithal to “make arrangements for the security and welfare of [her] mother” while she was in Puerto Rico at the end of 2017, “monitor and manage [her] mother's situation and care remotely from the United States” upon Ramos's return home thereafter, “get whatever information [she] could about [her] mother's situation, ” and “deal[] with various governmental and non-governmental organizations to understand the availability of basic necessities.” Pl. Aff. ¶¶ 7, 8. Ramos therefore cannot justify equitable tolling on the basis of illness or mental incapacity.
In sum, I find no basis in the record that would entitle Ramos to equitable tolling. The 60-day limit is a statute of limitations that must be strictly construed because it is a condition of a sovereign immunity waiver. While Ramos's personal circumstances are sympathetic, the history, text, and structure of § 405(c) constrain the Court to conclude that equitable tolling does not apply here. Only Congress can amend the statute to provide otherwise. See Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) (“Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants.”).
III. CONCLUSION
For the foregoing reasons, I recommend that the Commissioner's motion to dismiss, or, in the alternative, for summary judgment be granted.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to such objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Daniels.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir.2010) (citing Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003) and Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002)); 28 U.S.C. § 636(b) (1); Fed.R.Civ.P. 72. If Ramos does not have access to cases cited herein that are reported on LexisNexis or Westlaw, she should request copies from the Commissioner. See Lebron v. Sanders, 557 F.3d 76, 79 (2d Cir. 2009).