McIntosh v. Comm'r of Soc. Sec.

• Decision Date: 03 March 2021
• Docket Number: 19-CV-5362 (MKB)
• Parties: ANTHONY McINTOSH, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Eastern District of New York

ANTHONY McINTOSH, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

19-CV-5362 (MKB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Filed: March 4, 2021

March 3, 2021

NOT FOR PUBLICATION

MEMORANDUM & ORDER

MARGO K. BRODIE, United States District Judge:

Plaintiff Anthony McIntosh, proceeding pro se, filed the above-captioned action pursuant to 42 U.S.C. § 405(g) seeking review of the denial of his application for Supplemental Security Income ("SSI") and disability insurance benefits ("DIB"). (Compl., Docket Entry No. 1.) The Commissioner of Social Security (the "Commissioner") moves for judgment on the pleadings, arguing that it did not abuse its discretion in dismissing Plaintiff's untimely request for review of the decision of the Administrative Law Judge ("ALJ") by the Appeals Council. (Comm'r Notice of Mot. for J. on the Pleadings, Docket Entry No. 11; Comm'r Br. in Supp. of Mot. for J. on the Pleadings ("Comm'r Mem."), Docket Entry No. 12.) Plaintiff moves for a hearing on the Complaint. (Pl.'s Mot. for Hr'g ("Pl.'s Mot."), Docket Entry No. 14.) For the reasons set forth below, the Court grants the Commissioner's motion for judgment on the pleadings and denies Plaintiff's motion for a hearing.

I. Background

Plaintiff applied for SSI and DIB on April 3, 2015, (Modified Admin. R. ("R.") 90, Docket Entry No. 9), claiming disability due to Human Immunodeficiency Virus ("HIV") disease, bipolar disorder, posttraumatic stress disorder, a back disorder as well as degenerative disc disease of the lumbar spine, and chronic traumatic encephalopathy, (Compl. 1; R. 169). The Social Security Administration (the "SSA") denied his claim on August 4, 2015, (R. 152, 165), and Plaintiff appealed to the ALJ, (R. 153). After a hearing on January 25, 2018, at which Plaintiff was represented by counsel, (R. 29-63), the ALJ denied Plaintiff's claim in a decision dated February 9, 2018, weighing the available medical evidence and reaching the conclusion that Plaintiff retained the residual functional capacity to do light work with no contact with the public and occasional contact with supervisors and coworkers, (R. 10-24).

On May 16, 2018, Plaintiff, through counsel, appealed the ALJ's decision. (R. 83-84.) In addition to discussing the merits, Plaintiff requested that his appeal be considered timely because "neither [he] nor [his counsel] received a copy of the decision." (R. 83.) Counsel represented that he learned of the decision during "routine follow-up on the case," obtained a facsimile copy of the decision, and filed the appeal on the same day. (Id.)

On September 13, 2019, the Appeals Council dismissed Plaintiff's appeal as untimely. (R. 4.) The Appeals Council determined that notice was presumed to have been received on February 9, 2018, five days after the Commissioner mailed the decision to Plaintiff, and that the appeal was untimely because Plaintiff requested review on May 16, 2018, more than sixty days after receipt was presumed. (R. 4.) The Appeals Council further noted that although Plaintiff's counsel had "indicated that neither he nor the claimant received a copy of the decision until the representative requested it on the date he filed the request for review, . . . . the record [did] not reflect that the [p]ost [o]ffice returned the decision as undeliverable." (R. 4.) The Appeals Council found that Plaintiff had not shown good cause to extend the time for filing his appeal and dismissed Plaintiff's request for review. (R. 4.) On September 19, 2019, Plaintiff timely appealed to the Court. (Compl.)

II. Discussion

a. Standard of review

"In deciding a Rule 12(c) motion [for judgment on the pleadings], [courts] 'employ[] the same . . . standard applicable to dismissals pursuant to [Rule] 12(b)(6). Thus, [courts] will accept all factual allegations in the [c]omplaint as true and draw all reasonable inferences in [the plaintiff's] favor.'" L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 429 (2d Cir. 2011) (third and fourth alterations in original) (quoting Johnson v. Rowley, 569 F.3d 40, 43 (2d Cir. 2009)); see also Lanning v. City of Glens Falls, 908 F.3d 19, 22 (2d Cir. 2018) ("We construe the factual allegations in the light most favorable to . . . the losing party."); Cleveland v. Caplaw Enters., 448 F.3d 518, 521 (2d Cir. 2006) ("The standard for addressing a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim." (citing Karedes v. Ackerley Grp., Inc., 423 F.3d 107, 113 (2d Cir. 2005))). On a Rule 12(c) motion, the court relies "on the complaint, the answer, any written documents attached to them, and any matter which" the court "can take judicial notice for the background of the case." Lanning, 908 F.3d at 22 (quoting Roberts v. Babkiewicz, 582 F.3d 418, 419 (2d Cir. 2009)); see also Meyers v. City of New York, 812 F. App'x 11, 13 (2d Cir. 2020) (same). "To survive a Rule 12(c) motion, the complaint must contain sufficient factual matter to state a claim to relief that is plausible on its face." Oneida Indian Nation v. Phillips, 981 F.3d 157, 165 (2d Cir. 2020) (quoting Kirkendall v. Halliburton, Inc., 707 F.3d 173, 178-79 (2d Cir. 2013)); see also Graziano v. Pataki, 689 F.3d 110, 114 (2d Cir. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). However, the court neednot accord "a legal conclusion couched as a factual allegation" the same presumption of truthfulness. N.J. Carpenters Health Fund v. Royal Bank of Scot. Grp., PLC, 709 F.3d 109, 120 (2d Cir. 2013) (quoting Iqbal, 556 U.S. at 678).

In reviewing a pro se complaint, the court must be mindful that a pro se plaintiff's pleadings should be held "to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)); see also Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (noting that even after Twombly, the court "remain[s] obligated to construe a pro se complaint liberally").

b. The Appeals Council did not abuse its discretion when it determined that Plaintiff's appeal was untimely

The Commissioner contends that the Court should affirm the Appeals Council's dismissal of Plaintiff's request for review, arguing that the Appeals Council did not abuse its discretion by dismissing Plaintiff's request for review on the ground that it was untimely and he had not shown good cause for an extension.¹ (Comm'r's Mem. 3-4 (first citing Velez v. Apfel, 229 F.3d 1136 (2d Cir. 2000); and then citing Liranzo v. Comm'r of Soc. Sec., 411 F. App'x 390, 391 (2d Cir. 2011)).) In support, the Commissioner argues that the ALJ's decision was addressed to the mailing address that Plaintiff's counsel provided on his appointment of representative form. (Id. at 4.) In the alternative, the Commissioner asks that if the Court does not affirm the dismissal, that the Court remand to the Appeals Council to consider the merits of the underlying claim. (Id. at 4-5.)

In support of his application, Plaintiff attaches a letter from his former attorney to the Appeals Council. (Letter dated May 16, 2018, Docket Entry No. 14-1.) In the letter, Plaintiff's counsel asks that the appeal be considered timely because "neither the claimant nor [counsel] received a copy of the decision" and counsel only learned of the decision during "routine follow-up on the case."² (Id. at 1.)

A Social Security claimant may appeal an ALJ's decision to the Appeals Council within sixty days of receipt. 20 C.F.R. §§ 404.968(a)(1), 416.1468; see Coe v. Saul, No. 19-CV-10993, 2020 WL 6729169, at *4 (S.D.N.Y. Nov. 16, 2020) ("A request to the Appeals Council to review an ALJ's decision must generally be filed within [sixty] days from the date of the notice of the ALJ's dismissal." (citing 20 C.F.R. §§ 404.968(a), 416.1468(a))). Under the regulations, notice is presumed received five days after the date of the decision. 20 C.F.R. §§ 404.901 ("Date you receive notice means [five] days after the date on the notice, unless you show us that you did not receive it within the [five]-day period."), 416.1401 (same); Dietsch v. Schweiker, 700 F.2d 865, 867 (2d Cir. 1983) ("When an ALJ's decision is sent to a claimant, an accompanying form notice states that it is 'presumed that this notice is received within five days after the date [of the decision]' . . . ." (alterations in original)), overruled in part by Smith v. Berryhill, 587 U.S. ---, ---, 139 S. Ct. 1765, 1773 (2019); Jacqueline E. v. Saul, No. 17-CV-414, 2020 WL 1234949, at *4 (W.D.N.Y. Mar. 13, 2020) ("A claimant is deemed to have received notice of the ALJ's decision five days after the date on the notice unless the claimant can establish that she did not receive it within the five-day period."); Shari L. v. Saul, No. 19-CV-851, 2020 WL 3971510, at *1 (N.D.N.Y. July 14, 2020) ("The agency considers a claimant to have received notice of theALJ's decision five days after the date on the notice, unless the claimant can show that he or she did not receive it within the five-day period.").

To rebut that presumption, "[a] plaintiff must do more than merely assert that he did not receive the notice within five days . . . . Rather, a plaintiff must present some affirmative evidence indicating that the actual receipt occurred more than five days after issuance." Malavolta v. Comm'r of Soc. Sec., No. 08-CV-6528, 2009 WL 1097275, at *3 (S.D.N.Y. Apr. 23, 2009) (quoting Guinyard v. Apfel, No. 99-CV-4242, 2000 WL 297165, at *3 (S.D.N.Y. Mar. 22, 2000)), report and recommendation adopted, 2009 WL 1468601 (S.D.N.Y. May 22, 2009); see also Liranzo v. Astrue, No. 07-CV-5074, 2010 WL 626791, at *2 (E.D.N.Y. Feb. 23, 2010) (same), aff'd...