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Apachito v. Berryhill

United States District Court, D. New Mexico

January 10, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.



         THIS MATTER is before me on Defendant's Motion to Dismiss, filed on August 23, 2017. [Doc. 12]. Plaintiff responded on September 21, 2017. [Docs. 20, 21]. Defendant did not file a reply, and the time for doing so has passed. The Honorable Judith C. Herrera, United States District Judge, referred this matter to me for analysis and a recommended disposition. [Doc. 19]. Having considered the briefing, record, and relevant authorities, and being otherwise fully advised in the premises, I recommend that the motion be DENIED.


         Plaintiff applied for supplemental security income on November 8, 2012. See [Doc. 12-1] at 5. Her claim was denied initially and on reconsideration. Id. at 14-21. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). Id. at 21. The ALJ issued an unfavorable decision on September 15, 2015. Id. at 25-47. Plaintiff requested review of the ALJ's decision by the Appeals Council, but her request was denied on December 1, 2016. Id. at 48-54. The Appeals Council's notice informed Plaintiff of her right to appeal the ALJ's decision by filing a civil action. Id. at 50. It further explained that she had 60 days, starting the day after receipt of the letter, to file the civil action. Id. The Appeals Council noted that it would assume Plaintiff received the letter five days after the date on it unless Plaintiff affirmatively showed that she did not receive it within the five-day period. Id. It further provided that Plaintiff could request an extension of the 60-day deadline by making a written request to the Appeals Council, showing good cause for the extension. Id. at 51.

         On January 26, 2017, shortly before the 60-day deadline expired, Plaintiff, through counsel, requested a 30-day extension. Id. at 55. On March 20, 2017, the Appeals Council granted Plaintiff's request, extending the time within which she could file a civil action to “30 days from the date you receive this letter.” Id. at 56. Again, the Appeals Council informed Plaintiff that it would assume she received the letter “5 days after the date on it” unless she could show otherwise. Id. Assuming Plaintiff received the letter five days after March 20, 2017, then, she was required to file her civil action by April 24, 2017. Plaintiff initiated this action on April 28, 2017, noting in her complaint that she requested and was granted additional time to file suit, and her complaint was “therefore timely filed.” [Doc. 1] at 2.

         Defendant now moves to dismiss the complaint as untimely. Defendant asserts that, given the Appeals Council's notice of the extension of time, Plaintiff was required to file her suit by April 24, 2017. [Doc. 12] at 2. Instead, she filed it four days later. Defendant points out that the federal courts have “strictly applied” the statute of limitations, dismissing cases filed mere days out of time. Id. at 4-5 (collecting cases). Defendant further argues that Plaintiff is not entitled to equitable tolling of the statute of limitations. Id. at 5-6.

         In response, Plaintiff contends that she “has grounds for equitable tolling of the extension” and her complaint “is not time[-]barred.” [Doc. 20] at 1. Plaintiff contends that she and her counsel never received written notice of the Appeals Council's March 20, 2017 letter granting the extension of time. Id. at 2; [Doc. 21] at 2-3. Beginning in February 2017 and continuing through the week of April 24, 2017, Plaintiff alleges her counsel placed calls to the Appeals Council regarding the status of her request for an extension. [Doc. 20] at 2; [Doc. 21] at 2. On April 26 or April 27, 2017, Plaintiff alleges, her counsel was informed that the extension had been granted in a notice dated March 28, 2017, and she filed her complaint on April 28, 2017. Id. Plaintiff argues that responsibility for her late filing rests exclusively with Defendant, which failed to provide her and her counsel with notice of its decision granting the extension. Id. at 4. Resting on the “good cause” standard set out in the Social Security regulations concerning late filings, Plaintiff argues that there was good cause for the late filing. Id. at 4-5.

         Legal Standard

         Defendant's motion is styled as a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).[1]However, as Plaintiff points out, Defendant's motion relies on evidence outside of the complaint, as does Plaintiff's response. In ruling on a motion to dismiss, the district court is limited to the facts pled in the complaint. Gossett v. Barnhart, 139 F. App'x 24, 25 (10th Cir. 2005). Thus, the motion is more properly construed as a motion for summary judgment pursuant to Fed.R.Civ.P. 56. See id.; Nichols v. United States, 796 F.2d 361, 364 (10th Cir. 1986). Ordinarily, the Court is required to give notice that it will convert a motion to dismiss into one for summary judgment, because “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d); Gossett, 139 F. App'x at 25. However, courts in this District have found that no notice was required in similar circumstances where both parties presented evidence related to the timeliness of the plaintiff's appeal, neither party objected, and the parties would have an opportunity to address any concerns by virtue of the right to object to the PF&RD. E.g., Salter v. Colvin, 2016 WL 10538874, at *2 (D.N.M. May 6, 2016); see also Wiggins v. Colvin, 2014 WL 3870009, at *3 (W.D. Okla. Aug. 6, 2014) (unreported).

         I will consider the evidence the parties have submitted in support of their positions, construing Defendant's motion as a motion for summary judgment. Summary judgment will be granted “if the movant shows 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). In this case, the motion concerns the timeliness of Plaintiff's request for court review of the ALJ's denial of social security benefits. As such, the material facts are those pertaining to the statutes and regulations governing the 60-day time period.


         Pursuant to 42 U.S.C. § 405(g),

[a]n 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.

         Section 405(g) provides a 60-day window within which a claimant may obtain review of a final decision of the Commissioner. A claimant is “presumed to receive the notice of the decision of the Appeals Council five days after the date of mailing of such notice, unless there is a reasonable showing to the contrary.” Gossett, 139 F. App'x at 26 (citing 20 C.F.R. ยง 422.210(c)). The Commissioner may ...

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