Brandy H. v. Comm'r of Soc. Sec.

• Decision Date: 25 October 2022
• Docket Number: 1:22-CV-00117 EAW
• Parties: BRANDY H., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Western District of New York

BRANDY H., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

No. 1:22-CV-00117 EAW

United States District Court, W.D. New York

October 25, 2022

DECISION AND ORDER

ELIZABETH A. WOLFORD CHIEF JUDGE UNITED STATES DISTRICT COURT

INTRODUCTION

Represented by counsel, Plaintiff Brandy H. (“Plaintiff”) brings this action pursuant to Title XVI of the Social Security Act (the “Act”), seeking review of the final decision of the Commissioner of Social Security (the “Commissioner” or “Defendant”) denying her application for supplemental security income (“SSI”). (Dkt. 1). This Court has jurisdiction over the matter pursuant to 42 U.S.C. §1383(c)(3).

Presently before the Court is the Commissioner's motion to dismiss Plaintiff's complaint as untimely filed pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). (Dkt. 8). For the reasons discussed below, the Commissioner's motion is converted to a motion for summary judgment pursuant to Fed.R.Civ.P 12(d) and granted.

BACKGROUND

On November 7, 2012, Plaintiff applied for SSI, alleging disability beginning September 1, 2009. (Dkt. 1-1 at 6-8). The application was denied at the administrative level, which prompted Plaintiff to seek judicial review. On May 18, 2015 Plaintiff filed her original complaint, which was resolved on November 4, 2015, when, by stipulation of the parties, the matter was remanded to the Commissioner for further proceedings.^[1] (Dkt. 10 at 1-2; Dkt. 10-4 at 1-2). Once the matter was returned to the Commissioner, Plaintiff appeared for another administrative hearing in front of a new administrative law judge (“ALJ”), who issued another unfavorable decision. (Dkt. 10 at 2). Plaintiff subsequently filed her second complaint seeking judicial review, which was resolved by Decision and Order issued on March 27, 2020, pursuant to which the matter was again remanded to the Commissioner.^[2] (Dkt. 10-5 at 3).

On August 24, 2021, Plaintiff appeared before an ALJ at an administrative hearing. (Dkt. 1-1 at 6). The ALJ denied Plaintiff's claim for disability benefits on September 28, 2021. (Id. at 6-20). The notice of unfavorable decision was mailed to Plaintiff the same day with instructions that in the absence of Plaintiff's written exceptions or the Appeals Council's assumption of jurisdiction over the matter, the ALJ's decision would become final on the 61st day following the date of the notice. (Id. at 3). The notice also advised Plaintiff of her right to seek judicial review of the ALJ's decision within 60 days of the date that the ALJ's decision became final.^[3] (Id.). The record before the Court does not demonstrate that Plaintiff submitted written exceptions to challenge the ALJ's decision, or that the Appeals Council assumed jurisdiction over the matter. The parties agree that Plaintiff's deadline to commence the instant action was January 28, 2022. (Dkt. 8-1 at 5; Dkt. 10 at 3). Plaintiff filed her complaint on February 8, 2022, without previously requesting an extension of time to file for judicial review. (Dkt. 1).

On April 11, 2022, the Commissioner moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(1) and 12(b)(6) for failure to commence the action within the 60-day limitation period. (Dkt. 8). Plaintiff opposed the Commissioner's motion on the basis that her untimely filing of the complaint was justified based on equitable tolling. (Dkt. 10).

DISCUSSION

I. Legal Standard

A motion to dismiss on statute of limitations grounds is generally treated as a Rule 12(b)(6) motion to dismiss for failure to state a claim, and not a Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction. See, e.g., Cole-Hill ex rel. T.W. v. Colvin, 110 F.Supp.3d 480, 483 (W.D.N.Y. 2015). “The reason Rule 12(b)(6) provides ‘the most appropriate legal basis' for such a motion is ‘because expiration of the statute of limitations presents an affirmative defense.'” Id. (quoting Courtney v. Colvin, No. 13 Civ. 2884(AJN)(JLC), 2013 WL 5652476, at *2 (S.D.N.Y. Oct. 17, 2013)). When determining the sufficiency of a motion to dismiss under Rule 12(b)(6), the Court's consideration is “limited to the factual allegations in plaintiffs' . . . complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit.” Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).

Here, the parties have relied upon documents outside the pleadings. First, the Commissioner has submitted to the Court copies of the ALJ's decision dated September 28, 2021, and the accompanying notice of hearing decision. (See Dkt. 8-2 at 10-37).^[4]These documents were also appended to the complaint as an exhibit (see Dkt. 1 at ¶ 2; Dkt. 1-1), and are thus properly considered by the Court on the instant motion.

Second, Plaintiff has submitted to the Court an affidavit signed by an employee of Plaintiff's counsel, as well as a screenshot of internal case management software used by Plaintiff's counsel. (Dkt. 10-2; Dkt. 10-3). These documents contain factual material that is not found anywhere in the complaint, and the parties have offered no argument as to why they are properly before the Court. See Hood v. Cath. Health Sys., Inc., No. 1:20-CV-673, 2020 WL 8371205, at *3 (W.D.N.Y. Sept. 28, 2020) (“While Rule 12(b)(6) allows consideration of whether the complaint shows on its face that the limitations period has run, the question of equitable tolling generally depends on matters outside the pleadings.”); see also Marquez-Ortiz v. United States, No. 20-CV-5793 (JPO), 2021 WL 3863005, at *2 (S.D.N.Y. Aug. 30, 2021) (“Whether circumstances are sufficiently extraordinary to justify equitable tolling generally depends on matters outside the pleadings, so it is rarely appropriate to grant a Rule 12(b)(6) motion to dismiss (where review is limited to the complaint) if equitable tolling is at issue.” (quotation omitted)).

The Court nonetheless concludes that under the circumstances here, it is appropriate to convert the motion to one for summary judgment and that no formal notice to the parties is required. Fed. R. Civ. 12(d) provides: “If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Courts have held that no formal notice under Rule 12(d) is required where-as in this case-the moving party invoked both Rule 12(b)(1) and 12(b)(6), both parties submitted materials outside the pleadings, and “neither party objected to the submission of materials outside of the pleadings or argued that they are unreliable.” Palmer-Williams v. United States, No. 14-CV-9260 (CS), 2016 WL 676465, at *3 (S.D.N.Y. Feb. 18, 2016), aff'd, 675 Fed.Appx. 70 (2d Cir. 2017); see also Hood, 2020 WL 8371205, at *3 (“[L]ike in Palmer-Williams, neither party has objected to the submission of materials outside the pleadings or argued that they are unreliable. Both parties have submitted material outside of the pleadings to support their positions on equitable tolling, and they both appear to request that the court consider those materials. The court can accordingly conclude that neither party is prejudiced by the failure to provide express notice.” (citations and quotation omitted)).

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment should be granted if the moving party establishes “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).

The Court should grant summary judgment if, after considering the evidence in the light most favorable to the nonmoving party, the Court finds that no rational jury could find in favor of that party. Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).

II. Plaintiff's Complaint is Untimely and Equitable Tolling Does Not Apply

There are no factual disputes regarding whether Plaintiff's complaint was timely filed. The parties agree that Plaintiff's deadline to commence the instant action was January 28, 2022. (Dkt. 8-1 at 5; Dkt. 10 at 3). Plaintiff concedes that her complaint was untimely as it was filed 10 days after the deadline. (Dkt. 10 at 3). Having recognized Plaintiff's admission on the issue of timeliness, the Court now turns to determine whether Plaintiff's failure to timely file the compliant can be excused based on equitable tolling.

It is well-established that absent a statutory waiver, the United States is immune from suit without its consent. City of Suffolk v. Sebelius, 605 F.3d 135, 140 (2d Cir. 2010). Judicial review of the Commissioner's final decisions on claims arising under Title XVI is governed by Section 205(g) of the Social Security Act, codified at 42 U.S.C. § 405(g), which provides that

[a]ny individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party . . . may obtain a review of such decision by a civil action commenced within sixty 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); see also Bowen v. City of New York, 476 U.S. 467, 472 (1986) (a claimant may seek judicial review in federal court once he has exhausted all administrative remedies, but must do so within 60 days of the Secretary's final decision as required by 42 U.S.C. § 405(g)).

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