Opinion
02 CV. 9209 (GBD)
November 21, 2003
MEMORANDUM OPINION AND ORDER
Plaintiff brought this action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), challenging the final determination of the Commissioner of Social Security denying plaintiff's claim for Supplemental Security Income ("SSI") benefits. Defendant is moving to dismiss plaintiff's complaint pursuant to Fed.R, CIV.P. 12(b)(6) on the ground that it is barred by the time limitation specified in 42 U.S.C. § 405(g). Plaintiff concedes that his complaint was untimely, however, he argues that his late filing should be excused under the doctrine of equitable tolling because extraordinary circumstances prevented him from filing on time and he acted with reasonable diligence. For the reasons set forth herein, defendant's motion to dismiss is GRANTED.
BACKGROUND
Plaintiff is a forty — eight year old male who claims eligibility for Social Security disability benefits because he is unable to work as a result of allergies, severe asthma and sinusitis, as well as depression and anxiety. (Torres Dec. ¶ 2). Plaintiff filed an application for SSI benefits on June 7, 2000. (Torres Dec. ¶ 3). On December 21, 2001, an Administrative Law Judge issued a decision denying plaintiff's application for such benefits. (Speights Dec. ¶ 3(a)). Thereafter, plaintiff requested review of the Administrative Law Judge's decision by the Appeals Council. (Speights Dec. ¶ 3(a)). By notice dated May 10, 2002, and addressed to plaintiff at the same address listed by the plaintiff in the summons in this action, the Appeals Council denied plaintiffs appeal. (Speights Dec. ¶ 3(a); Baird Dec. ¶ 6, Exhibit C). Consequently, the Administrative Law Judge's decision became the final decision of the Commissioner. See 20 C.F.R. § 404.981. The Appeals Council advised plaintiff of his right to commence a civil action in the United States District Court within sixty days from the date of plaintiff s receipt of the Appeals Council's letter. (Baird Dec. ¶ 3(a), Exhibit E).
According to 20 C.F.R. § 422.210(c), plaintiff is presumed to have received notice of the Appeals Council's decision within five days of the date of the notice. Thus, plaintiff is presumed to have received notice by May 15, 2002. The time for filing a complaint in the United States District Court expired sixty days later on July 15, 2002. In a letter to the Appeals Council, dated October 15, 2002, plaintiff requested an extension of time to file a late civil action. The Appeals Council denied plaintiff's request to file an untimely civil action by letter dated April 22, 2003, indicating that it was not persuaded that plaintiff had shown good cause for an extension of time in which to commence a civil action.
Plaintiff alleges that the Appeals Council's original decision denying him SSI benefits was not mailed to him until May 21, 2002. (Torres Dec. ¶ 4). In support of this, plaintiff submits an envelope mailed to his address that is postmarked May 21, 2002. (Torres Dec. ¶ 4, Exhibit A). Plaintiff further alleges that he did not receive notice of the Appeals Council's decision until May 29, 2002. (Torres Dec. ¶ 4).
However, this is not the basis upon which plaintiff argues his complaint was filed late. Instead, plaintiff contends that "immediately after receiving the [Appeals Council's] decision," he determined how to file an action in the District Court by calling the Court on May 31, 2002. He then requested that the Court send him the forms that he needed to fill out. Plaintiff claims that he then filled out the forms "right away." (Torres Dec. ¶ 5).
Plaintiff claims that he thereafter "became nervous that [he] might be doing things wrong," so he spoke to a lawyer on the telephone. (Torres Dec. ¶ 6). Plaintiff alleges that he told the attorney that plaintiff "needed to file a case in federal court and asked [the attorney] if he could help [plaintiff]." Plaintiff alleges he told the attorney that he had already obtained and filled out the necessary forms. The attorney then asked the plaintiff to send him the forms and said he "would help [him]." (Torres Dec. ¶ 7). After sending the forms to the attorney, plaintiff alleges that "[he] understood that [he] had a lawyer for [his] case, and that [he] didn't have to do anything further." (Torres Dec. ¶ 10). The attorney spoke with plaintiff "once or twice over the next several months," and assisted him in filing a new application for SSI benefits to the Social Security Administration. (Torres Dec. ¶ 10).
Plaintiff states that he contacted the attorney on October 11, 2002 regarding a decision denying his second claim for benefits he received from the Social Security Administration. (Torres Dec. ¶ 11). In this conversation, plaintiff asked the attorney about the status of his federal case. The attorney stated that he never filed the federal case since the attorney was only handling plaintiff's new application to the Social Security Administration for disability and SSI benefits. (Torres Dec. ¶ 11). After speaking with the attorney on October 11, 2002, plaintiff contends that he "called the federal court house on October 15, 2002, the next business day" to determine if he could still file this action, even though it was untimely. He claims that he was informed that he could. He then filed this action with the Pro Se Office on October 17, 2002. (Torres Dec. ¶ 12).
Plaintiff states that "[he] was sure that [the attorney] had agreed to take [his] case." Otherwise, he would have filed the complaint on his own. Plaintiff further states that "maybe [he] misunderstood something because of [his] poor English." (Torres Dec. ¶ 13).
Plaintiff has presented the Court with no affidavit from his prior attorney to support a reasonable belief on his part that he retained counsel specifically for the purpose of filing a federal lawsuit.
Plaintiff states that his native language is Spanish and that he does not "speak English well." (Torres Dec. ¶ 2).
Up until May 27, 2003, plaintiff was pursuing this action Pro Se. On that date, pursuant to an April 7, 2003 Pro Bono Counsel Order signed by this Court, the Center for Disability Advocacy Rights, Inc. agreed to represent plaintiff and filed a Notice of Appearance.
DISCUSSION
The statutory deadline for filing a civil action after final rejection of a SSI claim is outlined in 42 U.S.C. § 405(g). The statute states 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 sixty day time period begins to run when the claimant receives the notice of decision, which is presumed to be five days after the date of such decision, unless "there is [a] reasonable showing to the contrary." 20 C.F.R. § 422.210(c).
The sixty — day filing requirement is a statute of limitations that is subject to equitable tolling. Bowen v. City of New York, 476 U.S. 467, 480 (1986). Further, the statute containing this limitations period was designed by Congress to be " 'unusually protective' of claimants." Id. See also Dixon v. Shalala, 54 F.3d 1019, 1028 (2d Cir. 1995). Congress has explicitly authorized the Commissioner to toll the 60 — day limit under 42 U.S.C. § 405(g). Due to the protective nature of the statute for claimants, the Second Circuit has observed that equitable tolling of the limitations period is "not infrequently appropriate." State of New York v. Sullivan, 906 F.2d 910, 917 (2d Cir. 1990). "While in most cases the Secretary will make the determination whether it is proper to extend the period within which review must be sought, cases may arise where the equities in favor of tolling the limitations period are so great that deference to the agency's judgment is inappropriate." Bowen, 476 U.S. at 480 , (citation omitted).
Plaintiff bears the burden of establishing that exceptional circumstances existed that warrant equitable tolling. Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000). A party seeking equitable tolling must make two showings. First, the party must show that "extraordinary circumstances" prevented him from filing on time. Smith v. McGinnis, 208 F.3d 13, 17 (2d. Cir. 2000) (citing Johnson v. Nyack Hospital 86 F.3d 8, 12 (2d. Cir. 1996)). Therefore, the party must show both that there existed extraordinary circumstances and that there is a "causal relationship between the extraordinary circumstances on which the claim for equitable tolling rests and the lateness of [the] filing." Valverde v. Stinson, 224 F.3d 129, 134 (2d. Cir. 2000). Second, the party must show that he acted reasonably diligent in pursuing his action during the time period that he is seeking to toll. Johnson, 86 F.3d at 12. He "must demonstrate that he acted with 'reasonable diligence' during the period he wishes to have tolled, but despite his efforts, extraordinary circumstances 'beyond his control' prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).
Equitable tolling has been found to be appropriate in the social security context in several circumstances. Examples of such circumstances include where the Social Security Administration sent a notice in English to a claimant who was accustomed to receiving notices in Spanish. See Correa v. Bowen, 682 F. Supp. 755, 757 (S.D.N.Y. 1988). Equitable tolling was also found to be appropriate where the Social Security Administration failed to give adequate notice of the procedural rules that the claimant was required to follow in order to request an extension of time to file.Laursen v. Massanari, 164 F. Supp.2d 317, 321 (E.D.N.Y. 2001). A circumstance warranting equitable tolling also exists where the claimant was able to demonstrate that her mental impairment materially hindered her ability to file a timely appeal. Canales v. Sullivan, 936 F.2d 755, 759 (2d Cir. 1991): See also Stieberger v. Apfel. 134 F.3d 37, 40 (2d Cir. 1997). However, none of these examples are relevant to plaintiff's case.
Plaintiff argues that his late filing should be excused under the doctrine of equitable tolling because extraordinary circumstances prevented him from filing on time, and he acted diligently. He mistakenly believed an attorney was representing him for the purpose of filing a complaint on his behalf in the District Court. Plaintiff contends that this misunderstanding is an extraordinary circumstance that warrants equitable tolling.
However, where a plaintiff is represented by an attorney during the time period that his complaint had to be filed and that attorney failed to file such complaint, courts have found that attorney error or neglect does not constitute an extraordinary circumstance that justifies equitable tolling. Smaldone, 273 F.3d at 138.: See also Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990); Geraci v. Senkowski, 211 F.3d 6, 9 (2d Cir. 2000); Davila v. Barnhart, 225 F. Supp.2d 337, 339 (S.D.N.Y. 2002).
Cases that have allowed equitable tolling where plaintiff has the advice and representation of counsel involve circumstances different from the one that plaintiff presents here. In Hernandez v. Sullivan, 1991 WL 243451 (S.D.N.Y. 1991), the plaintiff received conflicting information from the court and from an attorney as to the deadline on which to file her complaint. Following the incorrect information provided by the attorney, the plaintiff filed her complaint on the date that the attorney advised. Because the plaintiff in Hernandez was acting on legal advice from an attorney, and since she filed her complaint on the date the attorney told her was the deadline, the district court found that the plaintiff was not sleeping on her rights and that equitable tolling was justified. Id. at 3.
In Baldavaque v. United States of America, 338 F.3d 145 (2d. Cir. 2003), the Second Circuit found that while attorney error does not normally constitute the extraordinary circumstance that warrants equitable tolling, an attorney's actions can at times be so "outrageous or so incompetent" that they are extraordinary. Id at 152. In that case, the plaintiff's attorney assured the plaintiff's representatives that he was handling the plaintiff's case. Id. at 149. However, the attorney failed to conduct any legal research on the plaintiff's case, never spoke to or met with the plaintiff, did not keep the plaintiff reasonably informed about the case, did not explain the case to the plaintiff to the extent necessary that the plaintiff could make informed decisions, and failed to file a petition on behalf of the plaintiff though he was "specifically directed by his client's representatives" to do so. Id Therefore, the court found that the attorney's behavior was "far enough outside the range of behavior that reasonably could be expected by a client that they may be considered 'extraordinary,'" and that equitable tolling was warranted. Id. at 152.
In the present case, plaintiff has failed to show that there were extraordinary circumstances that prevented him from filing his complaint on time. Despite the fact that normal attorney error or neglect has been found not rise to the level of an extraordinary circumstance warranting equitable tolling, plaintiff falls short of even demonstrating that there was attorney error or neglect here. Unlike the plaintiff in Hernandez, who, in taking her own actions, relied on mistaken legal advice, plaintiff in this case did not rely on any affirmative legal advice on how to proceed with his case. Unlike Baldavaque, while plaintiff here may have assumed that his attorney had filed suit in the district court on his behalf, plaintiff did not receive any affirmative misrepresentation that the attorney had done so. In fact, in the correspondence between plaintiff and the attorney that plaintiff submitted to this Court attached to his Affidavit as Exhibit's C and E, there is no evidence that plaintiff and the attorney specifically discussed filing a complaint in the district court or meeting the sixty day deadline for filing such a complaint. Although plaintiff alleges that he sent the attorney the "federal court papers" (Torres Dec. ¶ 9), the May 31, 2002 letter from the attorney only mentions plaintiff's renewed application for SSI. (Torres Dec. Exhibit C).
Plaintiff further alleges that he told the attorney that plaintiff "needed to file a case in federal court." (Torres Dec. ¶ 7). However, there is no evidence that plaintiff and the attorney reached any understanding that the attorney would file a complaint in the district court on plaintiff's behalf. Plaintiff argues that he simply assumed that the attorney did so. The evidence indicates that there were both telephone and written communications between plaintiff and his lawyer over a period of months, and active joint participation in furtherance of plaintiff's second application to the Social Security Administration for benefits. Also, given plaintiff's pro se efforts, he clearly was aware of what the law required. However, plaintiff never took any steps to assure himself that a timely District Court filing would take place.
The standard for equitable tolling is two — fold. It requires that the party seeking it show both extraordinary circumstances that prevented a timely filing and that the party acted diligently during the time period he is seeking to toll. Johnson v. Nyack Hospital, 86 F.3d 8, 12 (2d. Cir. 1996). Plaintiff was personally aware of what was required, had counsel and took no steps to ensure that his federal lawsuit would be timely filed. He has therefore also failed to demonstrate that he was reasonably diligent in timely pursuing his action. Having been fully aware of the time limitation, plaintiff had a responsibility to specifically communicate with his attorney regarding a court filing within the applicable time period in order to avoid missing the known deadline. Plaintiff has neither demonstrated that exceptional circumstances prevented him from filing on time, nor that he acted reasonably diligent in pursuing a court action during the applicable time period.
CONCLUSION
For the foregoing reasons, defendant's motion to dismiss the complaint as time — barred is GRANTED.