REPORT and RECOMMENDATION

KEVIN FOX, Magistrate Judge

I. INTRODUCTION

Plaintiff Patricia Hernandez ("Hernandez") brings this action seeking review of a Social Security Administration ("SSA") decision denying her Supplemental Security Income ("SSI") benefits. The defendant, Commissioner of Social Security, moves to dismiss the complaint pursuant to 42 U.S.C. § 405(g) and Fed.R.Civ.P. 12(b)(6) or, alternatively, for summary judgment pursuant to Fed.R.Civ.P. 56, on the ground that the complaint was not timely filed. Plaintiff opposes the motion. She contends that she is entitled to equitable tolling of the deadline for filing her complaint in federal district court because her mental impairment hindered her from commencing this action timely.

II. BACKGROUND

In June 1989, the SSA determined that plaintiff was disabled and, thus, eligible for SSI benefits. Thereafter, in January 1998, the SSA determined that plaintiff's disability had ceased. Consequently, in March 1998, plaintiff stopped receiving SSI benefits.

On January 28, 1999, plaintiff, represented by counsel, appeared before an Administrative Law Judge (ALJ) to contest the termination of her SSI benefits. The ALJ held open the hearing record so that a consultative psychiatric examination of plaintiff could be completed. The examination took place in April 1999. Thereafter, on July 27, 1999, having reviewed the medical evidence presented in the case, the ALJ issued a decision finding that plaintiff's eligibility for SSI benefits had been correctly terminated because her disability was correctly found to have ceased as of January 1998. In his decision, the ALJ noted, inter alia, that plaintiff had a limited education and was illiterate.

In an affidavit submitted in opposition to the instant motion, plaintiff states that, since she could not read the ALJ's decision, her attorney explained to her that her application for SSI benefits had been denied and that he would file an appeal. Accordingly, by letter dated August 2, 1999, and addressed to the Appeals Council of the SSA, plaintiff's attorney requested a review of the ALJ's decision. That request was denied on May 26, 2000. Two copies of the Appeals Council's letter, one in English and one in Spanish, were sent to plaintiff at her home address. A copy of the letter also was sent to plaintiff's attorney.

The Appeals Council's letter notified the plaintiff that she was entitled to seek judicial review of its decision denying her appeal and that she had sixty days from the date of the receipt of the letter in which to commence a civil action. The letter also informed her that the Appeals Council would assume she had received its letter five days after the date on the letter. Additionally, the letter notified plaintiff that, upon a showing of good cause, the Appeals Council could extend the time in which to commence an action in federal district court.

In her complaint, plaintiff states that she received the Appeals Council's letter on May 31, 2000. In her affidavit, plaintiff avers that her attorney explained to her that "this was another denial decision" and that "he was no longer my attorney." Plaintiff states that she "did not know what to do next" and asked a friend to read her the Appeals Council's letter. According to plaintiff, she was told that the letter "mentioned the SSA." Plaintiff then went to her local SSA district office where she filed a new application for benefits.

By law, plaintiff had sixty (60) days to commence a civil action from the date she received the Appeals Council's letter, which was presumed to be five days after the letter was dated. See 42 U.S.C. § 405(g); 20 C.F.R. § 422.210(c). Since the Appeals Council's letter was dated May 26, 2000, plaintiff had until July 31, 2000, to file her complaint within the sixty-five-day time limit.

However, plaintiff, who avers that she did not learn that she might obtain legal assistance until after the filing deadline had passed, did not file her complaint until January 3, 2001. On that date, plaintiff met with an attorney employed by MFY Legal Services ("MFY"). Plaintiff avers that the attorney advised her that her complaint was no longer timely, but that she might have "good cause to file a late appeal." In any case, the MFY attorney assisted plaintiff to prepare a complaint and then directed her to the Pro Se Office for this judicial district. Plaintiff's complaint was filed the same day.

Thereafter, on February 26, 2001, an attorney employed by MFY submitted a letter to the Appeals Council on plaintiff's behalf requesting an extension of the time in which to file her complaint, as well as a finding of good cause for the late filing. Attached to the letter were: (i) a psychiatric report prepared by Dr. Richard Mayer, a psychiatrist employed at YAI Premier Health Care; (ii) a "Checklist of Function Limitations Resulting from a Mental/Intellectual Impairment," also prepared by Dr. Mayer; and (iii) a comprehensive psychosocial evaluation, dated July 25, 2000, prepared by Allison Lindner, a certified social worker employed at the YAI Center for Specialty Therapy.

These documents indicate, inter alia, that plaintiff was determined to be functioning "within the mild to moderate range of mental retardation," and that recommended services included "individual psychotherapy . . . to discuss her anxiety and reduce anxious behavior." The documents also indicate that plaintiff was found to suffer from depressive and anxiety disorders: her mood was found to be "easily anxious/depressed" and her affect "easily changeable, easily frustrated." In addition, plaintiff was found by her medical examiners to have impaired judgment as a result of her anxiety and a marked limitation in activities of daily living and social functioning, and to be unable to travel alone or to read or write. Furthermore, in his report, Dr. Mayer stated that plaintiff's "psychiatric disorder is longstanding and her mental retardation is permanent." Regarding plaintiff's ability to make occupational adjustments, Dr. Mayer stated that "[g]iven her mental retardation . . . she is emotionally and cognitively impaired in this."

On March 20, 2001, Chief Judge Michael Mukasey issued an order directing plaintiff to file an amended complaint explaining why she had not commenced a civil action in federal court within sixty (60) days, as provided in the letter she had received from the Appeals Council. All further proceedings were stayed pending plaintiffs compliance with the order. In April 2001, the Appeals Council denied plaintiff's request for an extension of time in which to file her complaint.

Plaintiff filed an amended complaint on May 16, 2001. The defendant's motion to dismiss the complaint or, in the alternative, for summary judgment, followed. In support of her motion, the defendant has submitted a memorandum of law, the declaration of Yvonne K. Speights, a court case preparation officer of the SSA, and a Southern District of New York Local Civil Rule 56.1 statement. In opposition to the instant motion, plaintiff has submitted a memorandum of law, a Southern District of New York Local Civil Rule 56.1 statement and, as noted earlier, a sworn affidavit. Because the defendant has relied on materials outside the pleadings, the motion will be treated as one for summary judgment rather than as a motion for dismissal under Fed.R.Civ.P. 12(b)(6).

III. DISCUSSION

Standard of Review for Summary Judgment

Summary judgment may be granted in favor of the moving party "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see also D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.),cert. denied, 524 U.S. 911, 118 S.Ct. 2075 (1998). When considering a motion for summary judgment, "[t]he court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his favor." L. B. Foster Co. v. America Piles, Inc., 138 F.3d 81, 87 (2d Cir. 1998) (citing Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356).

The moving party bears the burden of showing that no genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548. 2552 (1986). Once the moving party has satisfied its burden, the non-moving party must come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511 (1986).

In order to defeat a motion for summary judgment, the non-moving party cannot merely rely upon the allegations contained in the pleadings that raise no more than "some metaphysical doubt as to the material facts."Matsushita, 475 U.S. at 586, 106 S.Ct. at 1355. "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment."Anderson, 477 U.S. at 247-48, 106 S.Ct. at 2510. The non-moving party must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Id. at 256, 2514. Summary judgment should be granted only if no rational jury could find in favor of the non-moving party. See Heilweil v. Mount Sinai Hospital, 32 F.3d 718, 721 (2d Cir. 1994).

The limitations period for seeking judicial review of a final decision of the SSA is set forth in 42 U.S.C. § 405(g), which provides, in pertinent part:

Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, 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.

The regulations promulgated by the SSA construing this provision state that the sixty-day limitations period begins upon receipt of notice of decision by the claimant; receipt is presumed to occur five days after the date of the decision, "unless there is a reasonable showing to the contrary." 20 C.F.R. § 422.210(c)

In this case, there is no dispute that plaintiff filed her complaint more than five months after the sixty-five-day limitations period had expired. Therefore, the question to be decided is whether, under the circumstances, there exist any genuine issues of material fact that would justify equitable tolling of that limitations period. Equitable Tolling

The doctrine of equitable tolling permits courts to extend a statute of limitations beyond the time of expiration to prevent inequity. See Warren v. Garvin, 219 F.3d 111, 113 (2d Cir 2000) (citingJohnson v. Nyack Hospital, 86 F.3d 8, 12 [2d Cir. 1996]). However, equitable tolling applies only in "rare and exceptional" circumstances. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). To merit equitable tolling, a party must show that "extraordinary circumstances" prevented her from filing timely and that she acted with "reasonable diligence" during the period she seeks to toll. Id. Furthermore, a party seeking equitable tolling must "demonstrate a causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of [her] filing. . . ."Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir. 2000).

The federal courts are empowered to toll the section 405(g) limitations period in "cases . . . where the equities in favor of tolling the limitations period are so great that deference to the agency's judgment is inappropriate." Rodriguez v. Barnhart, No. 01 Civ. 3411, 2002 WL 31875406, at *3 (S.D.N.Y. Dec. 24, 2002) (quoting Bowen v. City of New York. 476 U.S. 467, 480, 106 S.Ct. 2022, 2030); see also Guinyard v. Apfel, No. 99 Civ. 4242, 2000 WL 297165, at *2 (S.D.N.Y. Mar. 22, 2000). Consequently, "although the sixty-five-day limit is a condition of the agency's waiver of sovereign immunity and such a waiver should ordinarily be strictly construed, tolling of the statute is plainly available in appropriate circumstances." Rodriguez, 2002 WL 31875406, at *3 (citations omitted). Moreover, since the social security statute was designed by Congress to be "unusually protective" of claimants, dismissal of a plaintiff's claim on technical procedural grounds is not consistent with congressional intent and, therefore, is inappropriate in such cases. Id. (quoting Bowen, 476 U.S. at 480, 106 S.Ct. at 2030).

Among the circumstances in which equitable tolling may be warranted in the social security context are those in which a claimant can show that a mental impairment hindered her ability to seek judicial review in a timely manner. See Canales, 936 F.2d at 759. A claimant who alleges incapacity due to mental impairment during the relevant limitations period should be given an opportunity to submit evidence in support of her claim. See id.; Guinyard, 2000 WL 297165, at *4. If the claimant can show that she was incapacitated for any length of time during the relevant limitations period, then this evidence should be weighed to determine whether, all things considered, equitable tolling is warranted. See Canales, 936 F.2d at 759; Guinyard 2000 WL 297165, at *4. "[T]he question of whether a person is sufficiently mentally disabled to justify tolling of a limitation period is, under the law of this Circuit, highly case-specific." Boos v. Runyon, 201 F.3d 178, 184 (2d Cir. 2000).

The defendant argues that: (1) the Appeals Council's April 2001 decision denying plaintiff an extension of the time in which to file her complaint in federal district court is not subject to judicial review, and (2) even if the decision were subject to judicial review, the evidence presented by the plaintiff is insufficient to demonstrate that she is entitled to equitable tolling of the pertinent limitation period.

Judicial Review

In claiming that the April 2001 decision of the Appeals Council is not subject to judicial review, the defendant relies upon Dietsch v. Schweiker, 700 F.2d 865, 867 (2d Cir. 1983) and Rivera v. Apfel, No. 01 Civ. 0752, 2001 WL 699065 (S.D.N.Y. June 21, 2001). However, the defendant's reliance upon these cases is misplaced because each involves factual circumstances materially different from those that exist here. Specifically, in both Dietsch and Rivera, the plaintiff had failed to seek review, in a timely fashion, of a decision by an ALJ. Consequently, the plaintiff in each case was seeking an extension of the time in which to file a request for Appeals Council review of such a decision. See Dietsch, 700 F.2d at 866-67; Rivera, 2001 WL 699065, at *1-2. Regarding the plaintiffs request, the court in Dietsch stated that "[t]he Appeals Council may dismiss an untimely request for review . . . and such a dismissal is not reviewable by the district court because it is not a 'final decision' within the meaning of § 405(g)." 700 F.2d at 867. InDietsch, the court is referring to an "untimely request for review" of a decision by an ALJ. Similarly, in Rivera the court found that "the Appeals Council may dismiss untimely requests for review and . . . such dismissals do not constitute 'final decisions' within the meaning of § 405(g)." 2001 WL 699065, at *2. Here, again, the court is referring to "untimely requests for review" of a decision by an ALJ. The court in Rivera goes on to say: "We find . . . that since another level of administrative review would have been available to plaintiff if she had submitted her request within the 65-day period, the ALJ's decision does not constitute a 'final decision' and, therefore, is not subject to judicial review under § 405(g)." Id. at *3. By "another level of administrative review," the court means a substantive review of an ALJ decision by the Appeals Council. Since the plaintiff in Rivera had not reached that level of administrative review, she had not obtained a final decision and, consequently, had not exhausted her administrative remedies. Therefore, in that case, there could be no judicial review of the Appeals Council's decision.

In this case, the decision for which judicial review is sought is a substantive ruling by the Appeals Council affirming the decision of the ALJ. That substantive ruling is a "final decision" within the meaning of § 405(g) because it represents the final level of administrative review in the social security context. Moreover, because, in this case, the decision for which plaintiff seeks judicial review is a final decision, the plaintiff has exhausted her administrative remedies as prescribed in § 405(g). See Dietsch, 700 F.2d at 867 (finding that § 405(g) has been interpreted to require that, generally speaking, administrative procedures must be exhausted before judicial review is available); Bowen 476 U.S. at 471-72, 106 So. Ct. at 2025-26 (finding that a claimant who has proceeded through the three-stage administrative review process, that is, the state agency's decision on reconsideration, a hearing by an ALJ, and review by the Appeals Council, has exhausted his or her administrative remedies). Accordingly, the Court finds that the Appeals Council's April 2001 decision denying plaintiff an extension of the time in which to file her complaint in federal district court constitutes a final decision within the meaning of § 405(g) and, as such, is subject to judicial review.

The Equities in this Case

In order to meet the first prong of the test for equitable tolling, plaintiff must show that "extraordinary circumstances" prevented her from filing timely. In this case, plaintiffs submissions show that she has significant impairments, including illiteracy and mental retardation. Plaintiff's illiteracy is well-documented; even the decision of the ALJ found, based on the report of the SSA's psychiatric examiner, that plaintiff "cannot read" and suffers from "illiteracy." In addition, a comprehensive psychological evaluation prepared by the YAI Center for Speciality Therapy, dated July 25, 2000, states that plaintiff is "not able to read or write." Moreover, in her affidavit, plaintiff states that she does not know how to read or write in English and that, although she speaks and understands Spanish, she cannot read or write in that language.

Furthermore, on December 8, 2000, plaintiff was diagnosed by a psychiatrist employed by the YAI Premier Health Care center as being within the "mild to moderate range of mental retardation." The psychiatrist found that plaintiff suffered from depressive and anxiety disorders, was easily anxious, changeable and frustrated, and had impaired judgment as a result of these manifestations of her disorders. The psychiatrist also found that plaintiff's "psychiatric disorder is longstanding and her mental retardation is permanent." These submissions show that plaintiff was incapacitated during the relevant limitations period and, consequently, may have been prevented from pursuing the judicial review process. As noted earlier, a plaintiff's incapacity to seek judicial review may constitute "extraordinary circumstances," warranting equitable tolling of the relevant limitations period. However, in order to satisfy the first prong of the equitable tolling test, plaintiff must also show a causal relationship between the extraordinary circumstances on which her claim is based and the lateness of her filing.

Plaintiff asserts that her illiteracy and mental retardation prevented her from reading and understanding the Appeals Council's May 26, 2001 letter. The letter, as noted above, provided information concerning how to seek judicial review of the decision denying her application for SSI benefits. In addition, plaintiff avers, after the attorney who had represented her in the previous administrative actions withdrew from her case, she "did not know what to do next." Plaintiff also avers that she did not learn about the availability of legal assistance from MFY until "[l]ater on." Moreover, according to plaintiff's counsel, attempts to contact her former attorney to ascertain whether he had assisted plaintiff to file a complaint in federal court, or had informed her about the appeals process, met with no response. Thus, it appears that, although plaintiff was represented by counsel for the purpose of pursuing her administrative remedies, the representation ceased as soon as the Appeals Council issued its decision. Therefore, under the circumstances, it appears that plaintiff's mental retardation and illiteracy were the cause of her failure to file her complaint in a timely fashion.

Plaintiff must also show that she exercised "reasonable diligence" during the period she seeks to toll. "In a case involving a litigant who suffers from a significant cognitive disability or a set of psychological conditions that render understanding and action difficult, [the court may] infer that the 'reasonable diligence' standard requires less than it would for a plaintiff who does not suffer from such handicaps."Rodriguez, 2002 WL 31875406, at *5.

Here, although plaintiff did not seek legal assistance for more than five months after the deadline for filing her complaint in federal district court, she has explained that, in the absence of legal assistance, she did not know what to do. In addition, it should be noted that plaintiff acted to reapply for SSI benefits in June 2000, just one month after receiving the Appeals Council's letter. The defendant argues that this undermines plaintiff's contention that her mental impairment kept her from filing her complaint timely. However, the court notes that plaintiff, despite her impairments, is likely to have been able to reapply for SSI benefits, since she had done this before, whereas filing a complaint in federal court may well have been beyond her capabilities. Furthermore, in this context, it should be noted that the written instructions provided by the Appeals Council on how to seek judicial review of its decision in federal court are "rather opaque." Rodriguez, 2002 WL 31875406, at *6 (noting that while the instructions in the Appeals Council's letter make mention of the district court "for the district in which you reside," they give neither addresses nor phone numbers to direct a potential litigant to the appropriate location). Furthermore, plaintiff's efforts to secure new benefits promptly shows a measure of diligence in the circumstances, as does plaintiff's filing of her complaint with the Pro Se Office for this judicial district on the same day that she met with the MFY attorney who helped her to prepare that document. Thus, taking into consideration plaintiff's mental impairment in determining whether she acted with reasonable diligence to preserve her claim, the Court finds that plaintiff has satisfied the second prong of the equitable tolling test.

Therefore, under the circumstances, the Court finds that plaintiff has offered sufficient evidence to establish that there exist genuine issues of material fact that justify equitably tolling the sixty-five-day limitations period in this case. Accordingly, the defendant's motion for summary judgment should be denied.

IV. RECOMMENDATION

For the reasons set forth above, the defendant's motion for summary judgment, made pursuant to Fed.R.Civ.P. 56, should be denied.

V. FILING OF 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 ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman, 40 Foley Square, Room 201, New York, New York, 10007, and to the chambers of the undersigned, 40 Foley Square, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Berman. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).