WILLIS v. BERRYHILL, No. 1:2016cv00051 - Document 12 (M.D.N.C. 2017)
Court Description: MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE JOE L. WEBSTER on 1/30/2017; that the Commissioner's motion to dismiss (Docket Entry 7 ) be converted to a motion for summary judgment, be GRANTED, and that this action be dismissed. (Sheets, Jamie)
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WILLIS v. BERRYHILL Doc. 12 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA MICHAEL RAY ìøILLIS, ) ) ) Plaintifl ) V 1:16CV51 ) ) ) ) ) ) ) N,{.NCY BE,RRYHILL, Acting Commissioner of Social Secutity,\dminis tration, Defendant. MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE Plaintiff, Michael Ray \X/illis, brought this action to obtain judicial review of a ftnal decision of the Commissioner of Social Security denying his claims for a period of disability, Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security ,\ct ("the Act").t Pending before the Court is Defendant's motion to dismiss Plaintiffs Complaint as time-barred. Q)ocket E.rtty 7.) Plaintiff has not filed a respoflse. For the reasons stated hetein, the Court recommends that Defendant's motion to dismiss be converted to a motion for summary judgment, and be granted. 1 Nancy Berryhill recently became the Acting Commissioner of Social Security, Putsuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy Betryhill should be substituted for Carolyn W. Colvin as Defendant in this suit. No furthet action need be taken to continue this suit by reason of the last sentence of section 205(9) of the Act, 42 U.S.C. $ a05G). 1 Dockets.Justia.com I. BACKGROUND On Februaty 3,201,2, Plaintiff filed applications fot DIB and SSI. (Docket Entry 8-1 at 8.) Plaintiffs claims were denied initially and upon reconsiderat:on. Qd.) Plaintiff thereafter tequested aheanngbefore an Administtative LawJudge ('ALJ'). Qd) A hearing was held on June 18, 201,4. (Id.) The ALJ issued an unfavorable decision on September 15, 2014. (Id. at 8-17.) Plaintiff thereafter sought teview of the decision by the Appeals Council. This decision became the final administative decision after the Appeals Council declined review on November 5,201,5. Qd. at23-26.) The Denial Notice from the Appeals Council also informed Plaintiff of his right to file a civil action for review of the ALJ decision, and the ptoper procedure to file such action in the judicial district where Plaintiff lives. (Id. at 24-25.) It further stated that he had "60 days to file a civil action" and [t]he 60 days start[ed] the day aftet [Plaintiffl receive[d] [the] letter." (Id. at 25.) If Plaintiff needed an extension of time to file his civil action, he could seek an extension from the Appeals Council. (//.) On January 20,201.6, Ptaintiff filed an appücation to proceed in þrma paaperis, along with the Complaint for review of the ALJ's decision denying his disability benefits. Q)ocket Entries 1, 2.) The Court thereafter granted Plaintiff IFP status pocket Ettry 4), and summons was issued for Defendant. (Docket Entry a 5.) Defendant then filed the pending motion to dismiss Plaintiffs Complaint as time-batred. Q)ocket Entry 7.) II. DISCUSSION 1,. Relevant Standard of Review Defendant contends that Plaintiffs complaint should be dismissed because Plaintiff did not institute this civil action until the time to do so expired. (Docket Etttty 2 I at 2.) Atthough not specifically refetenced in Defendant's motion, "[a] motion to dismiss a complaint as untimely is generally brought under Rule 12þ)(ó)."). Derosa u. Coluin, No. 5:14CV-41,4-FL,201,4WL 5662771, atxl, (E,.D.N.C. Nov. 4, 2014) (citation omitted). In support of het motion to dismiss, Defendant relies upon the declaration of I(athie Hartt (and attached exhibits), an employee of the Office of Disability Adjudication and Review. (Docket Entty 81, at 1.-4.) This document is not referenced in the Complaint, thus, this motion should be converted to a motion for summary judgment. Id. at x2 (citation omitted) ("Because these documents frelating to the date that the Appeals Council Notice was sent] contain information not referenced in the complaint, the court cannot consider them under the Rule 12þ)(6) standard."); see also ll/oods u. Coluin, No. 1:15CV763,2016WL 1,328951., atx2 $a.D.N.C. Apt. 5,2016) (citing Fed. R. Civ. P. 1,2(d) ("Because these documents contain information not tefetenced in the Complaint, the Commissionet's Motion to Dismiss should be converted into a motjon for summary judgment.")). "rù(/hen converting a for summary judgment, [a]ll parties must be given motion to dismiss into a motion a reasonable oppottunity to present all the matetialthatis pertinent to the fconverted] modon." Il/0nds,201,6WL1,328951.,atx2 (tntenal quotations and citation omitted). By Order dated January 12,2017, the Courtinformed the parties of its consideration to construe Defendant's motion to dismiss as a motion for summary judgment, and further permitted Plaintiff additional time to respond to Defendant's motion. Q)ocket Entry 11.) Plaintiff has not fi.led a response. The undersigned therefore concludes that Plaintiff "has been affotded a 'reasonable opportunity' to ptesent materials relevant to þis] response to the Commissioner's modon," and finds that the Cout should convert Defendant's motion to dismiss as a motion for summary judgment. Deron,201'4WL J 5662771", atx2; ¡ee also lØoodt,2016 WL L328951., at *3 (converting motion to dismiss into summary judgment motion after Plaintiff was given a teasonable opportunity to respond)' 2. Summarv ludsment Standard Summary judgment is apptopriate when thete exists no genuine issue of material fact and the moving party is entitted to judgment as a matter of law. Fed. R. Civ. P. 56(c); Zahodnicþ' a. Int'lBus. Machs. Corþ.,135 F.3d 911,91.3 (4th Cir. 1,997). The party seeking summaly judgment bears the initial burden of of coming forward and demonsuating the absence of a genuine issue material fact. Temkin u. Frederick Counlt Comm'rs, g45 F.2d 71.6,71.8 (4th Cir. 1'991) (citing - Celotex u. Catrett, 477 U.S. 31,7,322 (1986)). Once the moving party has met its butden, the non-moving party must then affirmatvely demonsttate thatthete is a genuine issue of matetial fact which requires tiaI. Mat¡u¡hita Elec. Indas. Co. Ltd. a. Zenith Radio Corp., 475 U.S. 574,587 (1986). There is no issue for trial unless thete is sufficient evidence favoring the non-moving parr¡ for a fact finder to return a verdict f.or thatp^rty. Anderson u. Libenl Lnbþl lnc.,477 U.S. 242,250 (1986); $luia Deu. Corp. u. Caluert Coanfii, Md.,48 F.3d 810, 81,7 (4th Cir. 1995). Thus, the moving party can bear his burden eithet by ptesenting affirmative evidence or by demonstrating that the non-moving parry's evidence is insufficient Celotex, 477 U.S. to establish his claim. at 331 (Brennan, dissenting). \ü/hen making the summary iudgment determination, the Court must view the evidence, and all justifiable inferences from the evidence, in the light most favorable to the non-moving party. Zahodnick,135 F.3d at Haþerin Abacas Tech. Corp., 128 F.3d a. 1,91,, 1,96 91.3; (4th Cir. 1.997). However, the patty opposing summary judgment may not fest on mere allegations ot denials, and the court need not consider 4 "unsupported assertiolls" or "self-serving opinions without objective corroboratiofi," EuanÍ Techs. a. Application¡ dy Seru. C0.,80F.3d954,962 (4thCu.1.996);Anderson,477 U.S. at248-49. 3. Time for Appeal of the Commissioner's Final Decision Section a05(g) of the Act provides, in relevzlnt p^rti "[a]ny individual, after any fnal decision of the Commissioner of Social Security made after. a hearing to which he was ^ pafty, irespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixtlt day after the nailing to him of notiæ of such decision or within such further time as the Commissioner of Social Security may allow." 42U.5.C. $ a05(g) (emphasis added). The sixty day requirement is not jurisdictional and is subject to equitable tolling. Bowen of NewYor,þ,,476 U.S. 467, a. Cìt1 478-80 (1986). This limitations period has been modified by the Commissioner's regulations so that it begins only upon receipt of the notice, r:;r},er than upon its mailing. See 20 C.F.R. $ 422.21,0(c). Social security regulations pertaining to judicial teview ptovide: Any civil action fseeking judicial review of a decision by an [ALJ] if the Appeals Council has denied the claimant's request for review] must be instituted wrthin 60 days after the Appeals Council's notice of denial of request for review of the [ALJ"] decision or notice of the decision by the Appeals Council is received by the indiyidual, institution, ot agency, except that this time may be extended by the Appeals Council upon a showing of good cause. Fot putposes of this section, tlte date of reætpt of notice of denial of reqøe$ þr reuiew of tlte presiding ffiærl deci¡ion or notice of the dedion þt the Appeal¡ Coandl thall be presøned to be 5 day after the date of søch notice, an/ess there i¡ area¡onab/e showingto the conlrary. 20 C.F.R $ a22.21,0(c) (emphasis added). Thus, the regulations provide that the date of receipt of notice is presumed to be five days after the date of such notice and a plainrtf.f. can rebut this presumption by making a "reasonable showing to the conttary" that he did not receive notice within five days. Id. If the plaintiff successfully rebuts the presumption, the butden shifts to 5 the Commissioner to show that the plaintiff received actual notice of the Commissioner's decision. Maßibekker . u. Heckler,73ï F.2d79,81' (2nd Cir. 1,984). The sixty-day time period may be equitably tolled undet certain circumstances. Bowen,476 U.S. See at 480 (rolding that "traditional equitable tolling principle[s]" upply to the sixty-day requirement). In most cases, the Commissioner detetmines whether to extend the sixty-day period, but a court may step in and extend the pedod in cases whete the equities in favor of tolling the sixty (60) days show that deference to the agency's judgment is inappropriate. Id, The application of equitable tolling is appropdate only in me or exceptional circumstances. Id. at 480-81 (upplyt"g equitable tolling where the agency engaged in engaged in "secretive conduct"); rce also Hlatt u. Heckler,807 F.2d 376,381. (4th Cir, 1986) (finding equitable tolling applicable where the Social Security Administtation had a "clandestine policy" of not following the law of the circuit where the claim arose). The Fourth Circuit has cautioned that tolling the limitations period "will tarely be appropriate." H1att,807 F.2dat 378. Here, the decision of the Appeals Council denying review in Plaintiff s case was dated November 5,2015. The Hatt declatation indicates thata copy of the Appeals Council notice was sent to Plaintiff at his address of record on November 5, 2015. (Docket Entry 8-1 at 3.) Counting the five-day receipt provision, Plaintiff had until Jannary 1.1, 201.6 to file his Complaint for judicial review.2 The Complaint was not filed in this Court until January 20, 2 The 65th day to file this civil action was Saturday,Jznuary 9,2016. Thus, the deadline to fi.le the Complaintwas the followingMonday. Sl,eFed. R, Civ. P. 6(aX1XC) ('[]f the last day lof a computed time] is a Saturday, Sunday, or legal holiday, the period conlinues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday,"), 6 2016. Plaintiff has failed to make the necessary showing to rebut the ptesumption that he received the notice from the Appeals Council ,r/ithin five days of its mailing. His Complaint was filed nine (9) days after the January 11.,20L6 deadline. Thus, Plaintiff s Complaint was not filed in a timely manner. Furthermore, the circumstances in this equitable case do not justi$r tolling. There is no evidence that Plaintiff asked Defendant to enlarge Plaintiffs time to file his compiaint,3 nor is there evidence of extraordinary circumstances sufficient to waffant the application of.equitable tolling. In sum, absent a genuine issue of material fact as to the untimeliness of Plaintiffls Complaint, Defendant's motion should be granted. III. CONCLUSION For the reasons stated herein, Commissioner's motion to dismiss IT IS HEREBY RECOMMENDED pocket Entry 7) be converted to a motion fot that the summaqr judgment, be GRANTED, and that this action be dismissed. L ïftùc¡er Suær !&gi¡t¡rtÊJudBc January 30,201.7 Durham, Notth Carcltna 3 In her declaration, Hartt indicates that she is also not aware this civil action made by Plaintiff. pocket Entry 8-1 at 3.) 7 of any request f.ot an extension to file
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