The opinion
08-3759-cv
Brown v. Commissioner of Social Security
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUM M ARY ORDER IN A
DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER TH E FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER
M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the
2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
3 on the 29th day of January, two thousand ten.
4
5 PRESENT:
6 RALPH K. WINTER,
7 JOHN M. WALKER, Jr.,
8 ROSEMARY S. POOLER,
9 Circuit Judges.
10 _______________________________________________
11
12 Bruce S. Brown,
13
14 Plaintiff-Appellant,
15
16 v.
17 08-3759-cv
18 Commissioner of Social Security,
19
20 Defendant-Appellee.
21 _______________________________________
22
23 FOR PLAINTIFF-APPELLANT: Bruce S. Brown, pro se, New York, New York.
24
25 FOR DEFENDANT-APPELLEE: Susan C. Branagan, Assistant United States
26 Attorney, David S. Jones, Assistant United States
27 Attorney; for Lev L. Dassin, Acting United States
28 Attorney for the Southern District of New York,
29 New York, New York.
30
31
1 Appeal from the United States District Court for the Southern District of New York (McMahon,
2 J.). UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
3 DECREED that the judgment of said District Court be and hereby is AFFIRMED.
4
5 Appellant Bruce S. Brown appeals from the district court’s judgment granting the
6 Commissioner of Social Security’s motion to dismiss his amended complaint. We assume the
7 parties’ familiarity with the facts, proceedings below, and specification of issues on appeal.
8
9 As an initial matter, we note that the district court’s decision granting the
10 Commissioner’s motion to dismiss was based in part on matters that were outside of the
11 pleadings. Accordingly, the court should have converted the Commissioner’s motion to dismiss
12 to a motion for summary judgment. See Fed. R. Civ. P. 12(d). However, this error was
13 harmless, since Brown was aware of the proposed basis for dismissal, and did, in fact, present a
14 full response. See Reliance Ins. Co. v. Polyvision Corp., 474 F.3d 54, 57 (2d Cir. 2007).
15
16 This Court reviews an order granting summary judgment de novo and considers whether
17 the district court properly concluded that there were no genuine issues of material fact and that
18 the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff &
19 Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). Although we resolve all factual disputes in
20 favor of the nonmoving party, “conclusory statements or mere allegations [are] not sufficient to
21 defeat a summary judgment motion.” Davis v. State of New York, 316 F.3d 93, 100 (2d Cir.
22 2002).
23
24 In the present case, we conclude that the Commissioner was entitled to judgment as a
25 matter of law. To the extent that Brown sought review of the Administrative Law Judge’s
26 October 2002 decision, the district court lacked subject matter jurisdiction over his complaint, as
27 he did not seek review of a final decision of the Social Security Administration. See Sims v.
28 Apfel, 530 U.S. 103, 106-07 (2000). To the extent that Brown sought review of the December
29 1995 or August 1997 decisions of the Social Security Administration Appeals Council, his
30 complaint was filed well beyond the applicable 60-day limitations period and Brown did not
31 allege any facts that would justify equitably tolling the limitations period. See 42 U.S.C.
32 § 405(g); Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
33
34 AFFIRMED.
35
36 FOR THE COURT:
37 Catherine O’Hagan Wolfe, Clerk
38
39
SAO-ARW