Fromwiller v. Commissioner of Social Security

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RACHEL ANN FROMWILLER,

Plaintiff, 19-CV-964

v. DECISION AND ORDER

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

INTRODUCTION

On July 23, 2019, plaintiff, Rachel Ann Fromwiller, brought this action pursuant to Title

XVI of the Social Security Act seeking review of the final decision of the Commissioner of Social

Security (“Commissioner”) regarding her application for supplemental security income □□□□□□□□

ECF No. 1. Presently before the Court is the Commissioner’s motion to dismiss Plaintiff's action

pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure based on Plaintiff's failure to

state a claim upon which relief can be granted, and Plaintiff's cross-motion for a nunc pro tunc

extension of the deadline to file her complaint. ECF Nos. 6, 9. For the reasons that follow, the

Commissioner’s motion is GRANTED, and Plaintiffs cross-motion is DENIED.

FACTUAL BACKGROUND

This case stems from Plaintiffs application for SSI filed with the Social Security

Administration (“SSA”) on September 3, 2014, in which she alleged disability beginning

September 3, 2014.! After the application was denied by the ALJ on November 17, 2015, Plaintiff

' There appears to be several discrepancies related to the date when Plaintiff filed her applications for benefits, as well

as the date of the Administrative Law Judge’s (“ALJ”) original decision. In her motion papers, Plaintiff alleges August

28, 2014 as the date when she filed her DIB and SSI applications and January 1, 2013 as the date when she became

disabied. ECF Nos. 9-1 at 1; 9-2 94. Plaintiff submits that her DIB application was denied on September 8, 2014 on

res judicata grounds. ECF No. 9-2 § 7. She further states that her SSI claim was denied by the ALJ on November

12, 2015 (ECF Nos. 9-1 at 2; 9-2 { 8), while the record before this Court contains a copy of the decision issued by

ALJ McGuan on November 17, 2015. ECF No. 6-1 at 8-22.

timely filed a request for review with the Appeals Council. ECF Nos. 6 at 2; 9-1 at 2. After the

Appeals Council denied her request, Plaintiff filed a civil action in this Court on June 28, 2016.

Id. On July 11, 2018, this Court issued an order remanding this matter back to the Commissioner

for further administrative proceedings. ECF Nos. 6-1 at 3; 9-2 at 1. Following the remand, the

Commissioner conducted another hearing related to Plaintiff's SSI claim, and, as a result, issued

an unfordable decision on March 21, 2019. ECF No. 6-1 at 51-68. The notice of unfavorable

hearing decision, issued the same day, advised Plaintiff that she had a right to file written

exceptions with the Appeals Council within 30 days of the date of the notice. It also advised

Plaintiff that if she chose not to file her written exceptions, then the ALJ’s decision would become

final on the sixty-first day following the date of the notice. Jd. at 48-50. Because Plaintiff did not

seek review of the ALJ’s March 21, 2019 decision by the Appeals Council, and the Appeals

Council did not assume jurisdiction of the case, the ALJ’s decision became the final decision of

the Commissioner on May 21, 2019. Jd. The notice of unfavorable hearing decision also advised

Plaintiff that she had a right to file a civil action in district court within 60 days after the ALJ’s

decision became final. Jd. Plaintiff initiated this action by filing her complaint on July 23, 2019.

ECF No. 1.

The Commissioner argues that because the ALJ’s decision became final on May 21, 2019,

Plaintiff s last day to initiate her legal action was July 22, 2019. ECF No. 6 at 2-3. Plaintiff admits

that she filed her complaint after the required deadline, however, she requests a nunc pro tunc

extension of time to file her complaint after the deadline based on the doctrine of equitable

estoppel.” ECF No. 9-1 at 3-5. Because the parties agree that Plaintiff's complaint was untimely,

the only issue for this Court to resolve is whether Plaintiff's late filing was excusable.

DISCUSSION

A. Motion to Dismiss

A motion to dismiss on statute of limitations grounds is generally treated as a Rule 12(b)(6)

motion to dismiss for failure to state a claim, and not a Rule 12(b)(1) motion to dismiss for lack of

subject-matter jurisdiction. See Cole-Hill ex rel. T.W. v. Colvin, 110 F. Supp. 3d 480, 483

(W.D.N.Y. 2015). “The reason Rule 12(b)(6) provides ‘the most appropriate legal basis’ for such

a motion is ‘because expiration of the statute of limitations presents an affirmative defense.’” Id.

(internal citations omitted). When determining the sufficiency of a motion to dismiss under Rule

12(b)(6), the Court’s consideration is “limited to the factual allegations in plaintiffs’ ... complaint,

which are accepted as true, to documents attached to the complaint as an exhibit or incorporated

in it by reference, to matters of which judicial notice may be taken, or to documents either in

plaintiffs’ possession or of which plaintiffs had knowledge and relied on in bringing suit.” Brass

v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993). Therefore, the Court may consider the

declarations, affirmations, and exhibits submitted by the parties in deciding whether Plaintiffs

complaint should be dismissed on the statute of limitations grounds. Nechis v. Oxford Health

Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005).

B. Equitable Tolling

It is well-established that absent a statutory waiver, the United States is immune from suit

without its consent. City of Suffolk v. Sebelius, 605 F.3d 135, 140 (2d Cir. 2010). Judicial review

2 Though the parties agree that Plaintiff's complaint was to be filed within sixty days of May 21, 2019, Plaintiff,

however, identified July 20, 2019 as her deadline to do so. ECF No. 9-1 at 3. Because July 20, 2019 fell on a Saturday,

Plaintiff's deadline to initiate this action was the following Monday, July 22, 2019. See Fed. R. Civ. P. 6 (a)(1).

Plaintiff initiated this action on July 23, 2019.

of the Commissioner’s final decisions on claims arising under Title II is provided by Section

205(g) of the Social Security Act, codified at 42 U.S.C. § 405(g), which provides that

{a]ny 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.

42 U.S.C. § 405 (g); see also Bowen v. City of New York, 476 U.S. 467, 472 (1986) (a claimant

may seek judicial review in federal court once he has exhausted all administrative remedies, but

must do so within 60 days of the Secretary's final decision as required by 42 U.S.C. § 405(g).).

“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, No. 14CV5304-LTS-

SN, 2015 WL 1262276, at *3 (S.D.N.Y. Mar. 19, 2015) (collective cases).

In light of Congress’ intent to be “unusually protective” of social security claimants, the

60-day limitation period has been deemed subject to equitable tolling. New York v. Sullivan, 906

F.2d 910, 917 (2d Cir. 1990) (internal citations omitted) (equitable tolling of the 60-day limitations

period is “not infrequently appropriate”). Because “the 60-day requirement is not jurisdictional,

but rather constitutes a period of limitations[,]” the court can toll it “where the equities in favor of

tolling the limitations period are ‘so great that deference to the agency’s judgment is

inappropriate.’” Jd. (quoting Mathews v. Eldridge, 424 U.S. 319, 330 (1976)). Importantly, in

order for the Court to extend the 60-day filing requirement a litigant must demonstrate that “he has

been pursuing his rights diligently” and that “some extraordinary circumstance stood in his way”

preventing a timely filing. Torres v. Barnhart, 417 F.3d 276, 279 (2d Cir. 2005) (internal citations

omitted). “Application of the doctrine [of equitable tolling] is appropriate only in rare and

exceptional circumstances in which a party is prevented in some extraordinary way from

exercising his rights.” Cole-Hill ex rel. T.W., 110 F. Supp. 3d at 484.

Plaintiff argues that her late filing of the complaint should be forgiven because she was

“extremely diligent in pursuing this action,” and because her repeated requests to appeal the ALJ’s

denial of benefits made to her counsel, as well as her reliance on counsel’s promises to do so, has

created exceptional circumstances that would allow this Court to toll Plaintiff's 60-day filing

deadline. ECF No. 9-1 at 3-5. The Court disagrees.

To satisfy the first requirement of the equitable tolling test, Plaintiff needs to demonstrate

that her efforts in pursuing this action have been “reasonably diligent.” Baldayaque v. United

States, 338 F.3d 145, 153 (2d Cir. 2003) (“The standard is not ‘extreme diligence’ or ‘exceptional

diligence,’ it is reasonable diligence.”). Based on the parties’ submissions, the Court finds that

Plaintiff has, indeed, demonstrated that she had been diligently pursuing her disability claim since

September 3, 2014, the date she filed her original SSI application. However, diligent pursuit of a

disability claim alone does not warrant the tolling of a limitation deadline without a showing of

the existence of an extraordinary circumstance that prevented a claimant from filing a timely

complaint. In reviewing Plaintiff's allegations in the light most favorable to her, the Court finds

that even though she may have demonstrated diligence in pursuing her SSI claim, Plaintiff,

however, has not demonstrated that extraordinary circumstances stood in her way from timely

seeking judicial review.

As a general matter, because “Congress intended to be unusually protective of claimants”

in cases involving social security benefits, see Liranzo v. Astrue, No. 07-CV-5074(CBA), 2010

WL 626791, at *3 (E.D.N.Y. Feb. 23, 2010), aff'd Lizanzo v. Comm’r of Soc. Sec., 411 F. App’x

390 (2d Cir. 2011), courts of this Circuit have extended the filing deadline in instances where a

social security claimant failed to timely seek judicial review because of a mental or physical

impairment, or “where misleading or covert action by the government or an attorney impede[d]

[the] claimant from timely pursuing the correct judicial avenues[.]” Bender v. Astrue, No. 09-CV-

5738(KAM), 2010 WL 3394264, at *5 (E.D.N.Y. Aug. 23, 2010) (internal citations omitted); see

also Canales y. Sullivan, 936 F.2d 755, 759 (2d Cir.), on reh'g, 947 F.2d 45 (2d Cir. 1991).

As for an attorney misconduct, it has been long recognized that counsel’s “bad advice”

provided to a client, as well as ordinary mistakes, or miscalculations of a filing deadline, generally

do not rise to the level of an “extraordinary circumstance” warranting tolling of a filing deadline.

See, e.g., Lawrence v. Fla., 549 U.S. 327, 336 (2007) (“Attorney miscalculation is simply not

sufficient to warrant equitable tolling[.]”); Martinez v. Superint. of E. Corr. Fac., 806 F.3d 27, 31

(2d Cir. 2015) (“Attorney error generally does not rise to the level of an ‘extraordinary

circumstance.’ . . . However, attorney negligence may constitute an extraordinary circumstance

when it is ‘so egregious as to amount to an effective abandonment of the attorney-client

relationship.’”); Baldayaque, 338 F.3d at 152-53 (“[W]hile the normal errors made by attorneys

may not justify equitable tolling, extreme situations . . . require a different result... [A]n attorney’s

conduct, if it is sufficiently egregious, may constitute the sort of ‘extraordinary circumstances’ that

would justify the application of equitable tolling.”); Torres, 417 F.3d at 280 (“[T]he failure of a

retained attorney to timely file a federal social security complaint does not necessarily constitute

an ‘extraordinary circumstance’ warranting equitable tolling.”); Reape v. Colvin, No. 1:13-CV-

1426 (GTS/CFH), 2015 WL 275865, at *5 (N.D.N.Y. Jan. 22, 2015) (“bad advice” from plaintiff s

attorney and representatives of the Social Security office did not rise to the level of extraordinary

circumstances that warrant equitable tolling); Groves v. Comm’r of Soc. Sec., No. 7:12-cv-904

(GLS/RFT), 2014 WL 5475292, at *3 (N.D.N.Y. Oct. 29, 2014) (a combination of attorney’s

computer and health problems that prevented her from timely filing plaintiff's complaint did not

create extraordinary circumstances warranting equitable tolling). Simply put, when an attorney’s

misconduct is, at best, described “as a garden variety claim of excusable neglect,” Irwin v. Dep’t

of Vets. Aff, 498 U.S. 89, 96 (1990), equitable tolling of a filing deadline is not justified. See also

Bachand vy. Saul, 778 F. App’x 74, 75 (2d Cir. 2019) (attorney’s confusion about the deadline for

filing a civil action was a “garden variety claim of excusable neglect” that did not justify equitable

tolling).

In the instant matter, even though Plaintiff's counsel does not argue that he miscalculated

the filing deadline, he, nonetheless, submits that his filing error was justified because Plaintiff

made repeated requests to his office to file her complaint on time and relied on his office’s

promises that the complaint was going to be filed within the deadline. ECF No. 9-1 at 4-5. While

the Court recognizes that a claimant’s reliance on an attorney’s representations may, under certain

circumstances, rise to the level of extraordinary circumstances that could warrant tolling of a filing

deadline, it finds that such circumstances do not exist here. See, e.g., Dillon v. Conway, 642 F.3d

358, 364 (2d Cir. 2011) (the filing deadline was tolled where Plaintiffs attorney affirmatively and

knowingly misled Plaintiff by promising to file his petition on time, and breached the promise

when he failed to follow his client’s instructions); Torres, 417 F.3d at 2 (equitable tolling was

warranted where Plaintiff, on the verge of timely filing his own pro se complaint, was misled into

believing that his attorney would be timely filing his complaint, and promptly filed it pro se upon

learning he had been misled); Baldayaque, 338 F.3d at 152-53 (“extreme situation” to extend

plaintiff's filing deadline existed when an attorney willingly ignored express instructions of his

client, never spoke to or met with the client, and failed to conduct any legal research on his client’s

behalf); Zapata v. Colvin, No. 3:13-cv-01875 (JAM), 2016 WL 777893, at *3 (D. Conn. Feb. 29,

2016) (attorney’s “extreme and deceptive conduct” justified plaintiff's failure to timely file his

complaint).

Here, the record does not contain evidence of Plaintiff's counsel affirmatively and

knowingly misleading Plaintiff about the filing deadline, nor does counsel’s conduct rise to the

level of extreme or egregious conduct that would justify tolling of Plaintiffs deadline. In fact,

counsel was not aware that the filing deadline was missed until he received the instant motion from

the Commissioner. ECF No. 9-2 § 22. Counsel relies on findings in Torres in support of this

argument that his unintentional misleading of Plaintiff and repeated promise to file a timely appeal

warrant application of the equitable tolling doctrine. ECF No. 9-1 at 4-5. However, the Court is

not persuaded by this argument. The Court in Torres extended the filing deadline to a

linguistically- and legally-challenged plaintiff, who successfully represented himself for several

years in pursuit of his disability claim and was on the verge of filing his own pro se complaint

when he found out that his counsel, retained to assist in filing of a complaint in federal court, failed

to file anything on Plaintiff's behalf. Here, even though Plaintiff repeatedly inquired about the

status of her case, this fact, at most, represents Plaintiff’s diligence in pursuing her disability case,

which alone is insufficient to create an exceptional circumstance warranting extension of her filing

deadline. Plaintiff here has been represented by the same law firm since 2013. ECF No. 9-1 at 4.

She had previously appealed the Commissioner’s decision and filed one civil action once before.

ECF Nos. 9-1 at 4; 9-3 at 3. In his communication with the Commissioner, counsel admitted

making an error when his office filed Plaintiff's complaint after the deadline despite having

received a notification of the correct deadline from a calendaring system utilized by his office to

keep track of all deadlines. ECF No. 9-3 at 3. Even though counsel’s office was aware of the

correct filing deadline, the paralegal assigned to Plaintiff's case, “inexplicably” did not file

Plaintiff's complaint until July 23, 2019. Jd. Notably, when asked for the reasons for such late

filing, the paralegal responded that she did not know why she filed Plaintiff's complaint after the

deadline. Id. Aside from this explanation, counsel, whose experience initiating disability appeals

in this District is vast, did not provide any reasons why his office was not able to comply with the

filing deadline and file Plaintiff's standard, two-page complaint on time. Groves, 2014 WL

5475292, at *4. Therefore, based on Plaintiff's own admission, her counsel’s failure to timely

initiate this action was an example of “a law office failure,” which, unfortunately for Plaintiff,

constitutes “a garden variety claim of excusable neglect” that does not warrant tolling of her filing

deadline.

Instead of Torres, which facts Plaintiff suggests are identical to the circumstances on this

case, the Court finds that they are very similar to those in Davila v. Barnhart, 225 F. Supp. 2d 337

(S.D.N.Y. 2002), where our sister court dismissed plaintiff's complaint when plaintiffs counsel,

mistakenly believing that the complaint was timely filed, missed the deadline by one day. Id. at

339. Similar to the circumstances of the present case, plaintiff in Davila had instructed his counsel

to appeal the ALJ’s decision, yet, counsel filed plaintiff's complaint one day after the 60-day

limitation period and was unable to explain his reasons why he mistakenly thought the complaint

was timely filed. Because there was no evidence that plaintiff or her attorney received conflicting

information from the Commissioner or the court regarding the filing deadline, the court in Davila

concluded that counsel’s filing error was “not one of the rare circumstances in which equitable

tolling is permissible.” Jd.

Plaintiff's argument that extension of the deadline is justified because the Commissioner

did not suffer any prejudice is without merit. “Although absence of prejudice is a factor to be

considered in determining whether the doctrine of equitable tolling should apply once a factor that

might justify such tolling is identified, it is not an independent basis for invoking the doctrine and

sanctioning deviations from established procedures.” Baldwin City Welcome Ctr. v. Brown, 466

U.S. 147, 152 (1984). Similarly, Plaintiff's argument that tolling of the filing deadline is justified

because her delay in filing was brief in unavailing. While the dismissal of Plaintiff's case may be

harsh, given that she only missed the deadline by one day, the 60-day requirement is a statute of

limitations that must be strictly construed. Therefore, courts of this Circuit “have not hesitated to

find that complaints that miss this deadline by a matter of days are untimely.” Courtney v. Colvin,

No. 13 Civ. 02884(AJN), 2014 WL 129051, at #2 (S.D.N.Y. Jan. 14, 2014) (collective cases); see,

e.g., Natale v. Comm’r of Soc. Sec., No. 1:17-cv-00908 (KHP), 2017 WL 3309734, at *2 (S.D.N.Y.

Aug. 2, 2017) (dismissal after a one-day delay); Smith v. Comm’r of Soc. Sec., No. 08-CV-1547

(NGG), 2010 WL 5441669, at *1 (E.D.N.Y. Dec. 23, 2010) (dismissal of a pro se complaint after

a four-day delay); Davila, 225 F. Supp. 2d at 340 (dismissal after a one-day delay); Burkett v.

Apfel, No. 97 CIV. 4019 (TPG), 1998 WL 846753, at *1 (S.D.N.Y. Dec. 4, 1998) (dismissal after

a one-day delay).

CONCLUSION

For the above reasons, the Commissioner’s motion to dismiss (ECF No. 6) is GRANTED,

Plaintiff's cross-motion (ECF No. 9) is DENIED. The case is DISMISSED WITH PREJUDICE.

The Clerk of Court is directed to close the case.

IT IS SO ORDERED. a yl

ZN \,

Hf NK’ P. GERACL, JR.

DGE

er DISTRICT COURT

Dated: en hex

Rochester, New York