The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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:
AVROHOM BRODY o/b/o LEAH BRODY,
:
Plaintiff,
: MEMORANDUM
DECISION AND ORDER
- against - :
: 19-CV-5659 (AMD)
COMMISSIONER OF SOCIAL SECURITY,
:
Defendant. :
:
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ANN M. DONNELLY, United States District Judge:
The plaintiff, who is proceeding pro se, chall enges the Social Security Commissioner’s
decision denying his deceased wife’s request for a wai ver of overpayment of Supplemental
Security Income (“SSI”) benefits. (ECF No. 1.) Before the Court is the defendant’s motion to
dismiss the complaint on standing and statute of limita tions grounds. (ECF No. 11.) For the
reasons set forth below, I grant the defendant’s motion to dismiss.
BACKGROUND
The plaintiff’s late wife, Leah Brody, was found disabled as of March 29, 2003 and
received Social Security benefits. (ECF No. 12-1, Declaration of Janay Podraza (“Decl.”) at ¶
3(a).) On March 2, 2015, the Social Security Administration (“SSA”) notified Ms. Brody that
her failure to include her “spouse’s Social Security benefits” in her reported monthly income
resulted in an overpayment of $2,827 from June of 2014 through February of 2015. (Id. at ¶
3(b); ECF No 12-1 at 19.) She requested a waiver of overpayment because she was separated
from the plaintiff; the agency denied her request. (Decl. at ¶¶ 3(c)-(e).)
The plaintiff completed an Appointment of Representative form on February 12, 2017
and filed a request for a hearing on May 15, 2017. (Decl. at ¶ 3(f).) Ms. Brody died on
February 22, 2018, before the hearing took place. (Decl. at ¶ 3(g).) Administrative Law Judge
James Kearns found that there were “no other parties of record,” “no information to show that a
survivor who may be paid benefits due to the claimant under 20 CFR 416.542(b) wishes to
pursue the request for a hearing,” and that Ms. Brody “did not authorize interim assistance
reimbursement.” (ECF No. 12-1 at 49.) Accordingly, he dismissed the plaintiff’s request for a
hearing.
On June 14, 2018, the plaintiff appealed ALJ Kearns’s dismissal. (Decl. at ¶ 3(h).) The
Appeals Council denied his request for review on November 2, 2018. (Id.) The plaintiff filed
this action on October 4, 2019, seeking review of the ALJ’s dismissal. (ECF No. 1.) The
defendant moved to dismiss the plaintiff’s claims on April 3, 2020. (ECF Nos. 11, 12.)
STANDARD OF REVIEW
“Determining the existence of subject matter jurisdiction is a threshold inquiry,”
Morrison v. Nat’l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008), aff’d, 561 U.S. 247
(2010), and dismissal is proper under Fed. R. Civ. P. 12(b)(1) for lack of subject matter
jurisdiction “when the district court lacks the statutory or constitutional power to adjudicate” the
claim, Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). “A plaintiff asserting
subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it
exists.” Id. A court deciding a motion to dismiss pursuant to Rule 12(b)(1) may consider
evidence outside of the pleadings, Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir.
1986), but must accept all factual allegations in the complaint as true and draw all reasonable
inferences in favor of the plaintiff, Lunney v. United States, 319 F.3d 550, 554 (2d Cir. 2003).
The requirements for standing “apply with equal force to applications for Social Security
benefits.” Webb v. Comm’r of Soc. Sec., No. 08-CV-82, 2009 WL 3719398, at *3 (N.D.N.Y.
Nov. 4, 2009).
In order to survive a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a complaint
must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed
factual allegations” are not required, “[a] pleading that offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’” Id. (quoting Twombly,
550 U.S. at 555). Similarly, a complaint is insufficient to state a claim “if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Pleadings are to be construed in the light most favorable to the plaintiff. Hayden v. Paterson,
594 F.3d 150, 160 (2d Cir. 2010).
DISCUSSION
I. Jurisdiction1
“Agency regulations drastically limit the categories of individuals who can recover
benefit[s]” on behalf of a deceased individual. Gregorka v. Comm’r of Soc. Sec., 13-CV-1408,
1 While the defendant does not cite Federal Rule of Civil Procedure 12(b)(1) specifically, the Court
construes the motion as pursuant to Rule 12(b)(1). “Although we have noted that standing challenges
have sometimes been brought under Rule 12(b)(6), as well as Rule 12(b)(1), see Thompson v. County of
Franklin, 15 F.3d 245, 247 (2d Cir.1994); Rent Stabilization Ass’n of City of New York v. Dinkins, 5 F.3d
591, 594 & n. 2 (2d Cir.1993), the proper procedural route is a motion under Rule 12(b)(1).” All. For
Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 89 (2d Cir. 2006). “[T]he Court has an
independent obligation to apply the correct legal standard.” Matter of Trusts Established under the
Pooling & Servicing Agreements relating to the Wachovia Bank Commercial Mortg. Tr. Commercial
Mortg. Pass-Through Certificates, Series 2007-C30, 375 F. Supp. 3d 441, 446 (S.D.N.Y. 2019).
2015 WL 3915959, at *5 (N.D.N.Y. June 25, 2015). SSA regulations provide that “[i]f a
recipient dies before [the SSA] paid all benefits due or before the recipient endorses the check
for the correct payment, [the SSA] may pay the amount due to the deceased recipient’s surviving
eligible spouse or to his or her surviving spouse who was living with the underpaid recipient . . .
in the month he or she died or within 6 months immediately preceding the month of death.” 20
C.F.R. § 416.542(b)(1). A spouse is considered to have been “living with” the underpaid
recipient if they “customarily lived together as husband and wife in the same residence.” 20
C.F.R. § 404.347. Social Security regulations establish that “[n]o benefits may be paid to the
estate of an unpaid recipient, the estate of a surviving spouse, the estate of a parent, or to any
survivor other than those” named in the statute and regulations. 20 C.F.R. § 416.542(b)(4).
According to the defendant, the agency likewise will not pursue recovery of overpayment from a
non-eligible spouse. (ECF No. 12 at 5-6.)
The record in this case does not establish that the defendant was an eligible spouse for the
purpose of pursuing a hearing on behalf of his deceased wife, because he cannot establish that he
was “living continuously” with her for at least six months before her death. By the plaintiff’s
own admission, he had not lived in Ms. Brody’s house since 2013. (ECF No. 12-1 at 45.)
Moreover, Ms. Brody challenged the SSA’s overpayment decision because the agency included
the plaintiff’s SSI benefits as part of her household income; she argued that the plaintiff’s SSI
income should not be included in her calculation because she was “physically separated” from
him. (Id. at 30.) Indeed, if the plaintiff was living with his wife, the agency’s calculation of
overpayment would have been accurate, and he would not have a claim.
Nor was the plaintiff’s absence “temporary” as defined by 20 C.F.R. § 404.347. 20
C.F.R. § 404.347 (temporary absences are limited to “service in the U.S. Armed Forces;” an
absence of six months or less due to “business, employment, or confinement in a hospital,
nursing home, other medical institution, or a penal institution;” a separation “solely for medical
reasons;” or a separation in which both parties “reasonably could have expected to live together
in the near future.”).2
Because the plaintiff lacks standing to assert claims on behalf of the claimant, the
Appeals Council’s decision was correct. See Social Security Administration, Office of Hearings
and Appeals, Litigation Law Manual (“HALLEX”) I–3–4–4(B)(2)(a), 1993 WL 643136 (“The
Appeals Council may dismiss a request for review when the . . . (SSI) applicant or recipient dies
if: there is no eligible spouse . . . and the applicant . . . did not authorize interim assistance
reimbursement . . . .”).3
II. Statute of Limitations
Aside from the standing issue, the action is clearly time barred. Section 205(g) of the
Social Security Act, 42 U.S.C. § 405(g) provides in pertinent part:
Any individual, after any final decision of the Secretary 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
Secretary may allow.
The “mailing” date is the date the individual receives the Appeals Council’s notice or decision,
which is presumed to be five days after the notice’s date unless “there is a reasonable showing to
2 The plaintiff’s unsupported claim that he was “forced out of the apartment due to [Ms. Brody’s] mental
illness,” does not suffice because, among other things, he does not say that this was the “sole” reason for
their separation. (ECF No. 14 at 3.)
3 The record does not mention interim assistance reimbursement. As this issue was not raised in the
administrative proceedings, it will not be addressed here.
the contrary.” Matsibekker v. Heckler, 738 F.2d 79, 81 (2d Cir.1984) (citing 20 C.F.R. §
422.210(c)). Because the sixty-day limitations period is a condition of the government’s waiver
of sovereign immunity, the limitations period must be strictly construed. Bowen v. City of New
York, 476 U.S. 467, 478 (1986) (citations omitted). And because the expiration of the statute of
limitations is an affirmative defense, it is best asserted under Rule 12(b)(6). Rodriguez ex rel.
J.J.T. v. Astrue, 10-CV-9644, 2011 WL 7121291, at *2 (S.D.N.Y. July 25, 2011) (“[A] motion to
dismiss on statute of limitations grounds . . . ‘generally is treated as a motion to dismiss for
failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), as opposed to
under Rule 12(b)(1).’” (quoting Nghiem v. U.S. Dep’t of Veterans Affairs, 451 F. Supp. 2d 599,
603 (S.D.N.Y. 2006), aff'd, 323 F. App’x 16 (2d Cir.2009))). “Failure to file a complaint within
the statutory limitation most often requires dismissal of the case, even where the delay is minor
and the plaintiff is pro se.” Borrero v. Colvin, 14-CV-5304, 2015 WL 1262276, at *3 (S.D.N.Y.
Mar. 19, 2015) (collecting cases).
The Appeals Council sent the plaintiff notice that it denied his request to review the
ALJ’s decision on November 2, 2018. The plaintiff concedes that he received the notice on
November 6, 2018. (ECF No. 1 at 2.) As a result, the last day to file a timely complaint was
sixty days later, or by January 5, 2019. The plaintiff filed his complaint on October 4, 2019 and
did not provide a reason for the delay. Nor did he request “further time” from the Commissioner
to file his action. See 42 U.S.C. § 405(g). As a result, his complaint is untimely.
To obtain the benefit of equitable tolling, the plaintiff must prove two things. First,
“extraordinary circumstances” must have 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)).
“This requires demonstrating both the existence of extraordinary circumstances and a ‘causal
relationship between the extraordinary circumstances on which the claim for equitable tolling
rests and the lateness of [the] filing.’” Liranzo v. Astrue, 07-CV-5074, 2010 WL 626791, at *3
(E.D.N.Y. Feb. 23, 2010), aff'd sub nom. Liranzo v. Comm’r of Soc. Sec., 411 F. App’x 390 (2d
Cir. 2011) (quoting Valverde v. Stinson, 224 F.3d 129, 134 (2d Cir.2000). Second, the plaintiff
must have acted with “reasonable diligence” in pursuing his application during the period he
seeks to toll. Johnson, 86 F.3d at 1; see also Torres v. Barnhart, 417 F.3d 276, 279 (2d
Cir.2005) (finding that a plaintiff must demonstrate “both extraordinary circumstances and due
diligence”).
The Second Circuit has found equitable tolling warranted when a claimant fails to seek
judicial review in a timely manner because of mental impairment, Canales v. Sullivan, 936 F.2d
755, 758-59 (2d Cir.1991), when government misconduct keeps plaintiffs from appreciating the
scope of their rights, New York v. Sullivan, 906 F.2d 910, 917 (2d Cir.1990), or when the
claimant is “seriously misled by an attorney in whom he placed his trust,” Torres v. Barnhart,
417 F.3d 276, 281 (2d Cir.2005) (“With one exception, every case in this Circuit that has applied
Bowen’s equitable tolling doctrine is one in which a defect in the administrative process inhibits
the claimant’s ability to utilize the agency’s (lenient) time extension procedure.”). None of these
circumstances are applicable.
The plaintiff claims that his filing was late because he is “disabled and blind.” (ECF No.
14 at 1.) These conditions do “not rise to the level of extraordinary circumstances.” Bender v.
Astrue, 09-CV-5738, 2010 WL 3394264, at *5 (E.D.N.Y. Aug. 23, 2010). See, e.g., Wong v.
Bowen, 854 F.2d 630, 631 (2d Cir.1988) (declining to toll the deadline due to claimant’s
assertion of poor health); Twumwaa v. Colvin, 13-CV-5858, 2014 WL 1928381, at *3-4
(S.D.N.Y. May 14, 2014) (declining to toll the deadline where the claimant stated only that she
was “stressed,” “in pain,” and “gave the motion to [her] former attorney to respond”); Marquez
v.Comm’r of Soc. Sec., 12-CV-8151, 2013 WL 3344320, at *5 (S.D.N.Y. July 2, 2013)
(declining to toll the deadline where claimant did “not allege a misunderstanding or incapacity . .
. nor . . . any diligence”). Indeed, the plaintiff’s “compliance with the statute of limitations at
earlier stages of the appeals process—namely his request to the Appeals Council—‘indicates that
he was accustomed to operating under time constraints and capable of doing so, even when
acting pro se.’” Borrero, 2015 WL 1262276, at *6 (quoting Monje v. Shalala, 1995 WL 540028,
at *3 (S.D.N.Y. Sept. 4, 1995)).4
The record does not demonstrate that extraordinary circumstances prevented the plaintiff
from filing a claim within the 60-day statutory period. Thus, equitable tolling is not appropriate.
CONCLUSION
Accordingly, the defendant’s motion to dismiss is granted. The Clerk of Court is
respectfully directed to mail a copy of this order to the pro se plaintiff, enter judgment in favor of
the defendant and close this case.
SO ORDERED.
__s_/A__n_n_ M__. _D_o_n_n_e_l_ly______
ANN M. DONNELLY
United States District Judge
Dated: Brooklyn, New York
April 13, 2021
4 The plaintiff’s efforts to find an attorney—he claims to have “contacted about 100 attorneys and legal
aid offices,” but “nobody wanted to take the case”—do not constitute extraordinary circumstances. (ECF
No. 14 at 2.)