Opinion
04 Civ. 3200 (LTS) (AJP)
May 12, 2004
REPORT AND RECOMMENDATION
The pro se plaintiff, Cynthia Bartow, in this Social Security review action received the Notice of Appeals Council Action letter dated January 6, 2004 on January 9, 2004. (Dkt. No. 2: Compl. ¶ 8 attachment.) The letter advised that she had 60 days to file a federal court action. (Compl. Attachment: SSA Letter.) She did not file her complaint in this action, however, until April 8, 2004. (Compl. at p. 3.) In a letter attached to the complaint, Ms. Bartow admitted that her complaint was late: "I know I'm way past the deadline for a review on my case." (Compl., attached 4/8/04 Bartow Letter.) Her only proffered explanation is that she was "depressed" that she had been turned down so many times. (Id.)
The Social Security Act provides that:
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.42 U.S.C. § 405(g) (emphasis added); see also 42 U.S.C. § 1383(c)(3). While this time-limit is not jurisdictional, it does constitute a period of limitations. See Bowen v. City of New York, 476 U.S. 467, 478, 106 S.Ct. 2022, 2029 (1986); accord, e.g., Velez v. Apfel, No. 99-6314, 229 F.3d 1136 (table), 2000 WL 1506193 at *2 (2d Cir. Oct. 6, 2000);State of New York v. Sullivan, 906 F.2d 910, 917 (2d Cir. 1990): Schoon v. Massanari, 01 Civ. 2656, 2001 WL 164241 at *2 (S.D.N.Y. Dec. 21, 2001). Dismissal of such actions brought after the sixty dayperiod thus is appropriate. See, e.g., Posilovich v. Apfel, No. 99-6338, 225 F.3d 646 (table), 2000 WL 964764 at *1 (2d Cir. July 12, 2000) ("The district court properly dismissed the plaintiff's complaint [against the Commissioner of Social Security] because it was not filed within the time period required by law."). Schoon v. Massanari, 2001 WL 1641241 at *2;Guinyard v. Apfel, 99 Civ. 4242, 2000 WL 297165 at *2 (S.D.N.Y. Mar. 22, 2000) ("[C]ourts have not hesitated to enforce the 60-day period as a firm limit.").
Her claimed disabilities are asthma, high blood pressure, arthritis, high cholesterol and menopause (Compl. ¶ 4), not depression or any other psychological problems.
"If a claimant alleges that incapacity due to mental impairment during the 60-day limitations period impeded her ability to seek judicial review in a timely manner, the district court should afford the claimant the opportunity to present evidence buttressing this claim." Guinyard v. Apfel, 2000 WL 297165 at *4 (citing Canales v. Sullivan, 936 F.2d 755, 759 (2d Cir. 1991)). "However, a 'conclusory and vague claim, without a particularized description . . . is manifestly insufficient to justify any further inquiry into tolling.'" Guinyard v. Apfel, 2000 WL 297165 at *4 (quoting Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000)). The sole excuse Bartow offered for filing late — that she was "depressed" (see fn.1 above) — thus does not constitute one of the "rare cases" that warrant equitable tolling. See, e.g., Guinyard v. Apfel, 2000 WL 297165 at *2; Sykes v. Apfel, 97 Civ. 7696, 1998 WL 338104 at *4 (S.D.N.Y. June 24, 1998) ("According this pro se plaintiff's complaint the close and careful reading to which it is entitled, the plaintiff has failed to identify any circumstance that would justify equitable tolling of the statute of limitations in this case. Therefore the complaint must be dismissed because it is time barred under the 60-day statute of limitations in Section 405(g).").
Accordingly, the Court should dismiss this action since plaintiff Bartow did not commence it within 60 days of receipt of the Appeals Council's letter.
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 the Court, with courtesy copies delivered to the chambers of the Honorable Laura Taylor Swain, 40 Centre Street, Room 1205, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Swain. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466 (1985): IUE AFL-CIO Pension Fund v. Hermann, 9 F.3d 1049. 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); 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); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72 6(a), 6(e).