United States District Court, D. New Mexico
CORNITA M. APACHITO, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.
MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
STEPHAN M. VIDMAR, UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
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.
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.
motion is styled as a motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6).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)
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.
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.
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. § 422.210(c)). The Commissioner may