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Zapata v. Colvin

United States District Court, D. Connecticut

February 29, 2016

RUBEN ZAPATA, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, U.S.A., Defendant.


Jeffrey Alker Meyer United States District Judge

Plaintiff Ruben Zapata seeks review of the denial of his claim for Social Security disability benefits. Unfortunately, plaintiff did not file this court action until nearly three years after the law required him to seek judicial review. The issue now is whether plaintiff‘s delay should be excused under the doctrine of equitable tolling.

The Commissioner has filed a motion to dismiss (Doc. #7), and Magistrate Judge Fitzsimmons has issued a ruling (Doc. #11) recommending that I grant the motion to dismiss. I fully adopt the careful and well-reasoned ruling of Judge Fitzsimmons. In my ruling here, I will address additional issues and argument as developed by plaintiff‘s objection to Judge Fitzsimmons‘ ruling and during the course of a subsequent evidentiary hearing before me.

Although I conclude that extraordinary circumstances involving extreme attorney misconduct initially justified plaintiff‘s failure to file his complaint on time, I further conclude that-after this misconduct was exposed-neither plaintiff nor his other counsel acted with reasonable diligence to ensure the timely filing of plaintiff‘s federal court action. Accordingly, I will grant the Commissioner‘s motion to dismiss.


Plaintiff received a final administrative decision denying his claim for Social Security disability benefits on February 28, 2011. The notice of decision advised him that he had 60 days to file a federal court action to seek judicial review. See 42 U.S.C. § 405(g). But, as a result of a convoluted series of incidents described at length in Judge Fitzsimmons‘ ruling, plaintiff did not end up filing the instant federal court action until nearly three years later on December 18, 2013.

I need not review the entire three-year period. For purposes of my equitable tolling analysis in this ruling, I will focus on what happened during the first year-and-a-half, because it is clear that the events during that time period alone warrant a conclusion that equitable tolling does not apply.

Shortly after receiving the final administrative decision, plaintiff and his attorney, Barbara Cohn, met with attorney Louis Avitabile. Attorney Cohn had assisted plaintiff during the administrative proceedings before the Social Security Administration. As Attorney Cohn has attested, she was not experienced with federal court practice, and she and plaintiff met with Attorney Avitabile because one of her colleagues had recommended him. Doc. #12-2 at 1. Attorney Avitabile agreed to file a federal court action on plaintiff‘s behalf. For more than a year, Attorney Avitabile assured Attorney Cohn that he had filed for an extension of time and then that he had filed the federal court action as promised. Although she made multiple requests, Attorney Cohn did not receive a copy of the federal lawsuit from Attorney Avitabile. In April 2012-more than a year after the lawsuit should have been filed-Attorney Cohn learned through her own independent inquiry efforts that Attorney Avitabile had never filed an action as promised. Doc. #12-2 at 1-2.

Despite discovering that Attorney Avitabile had lied about filing a federal court action, Attorney Cohn decided to continue working with him. As she states in her affidavit, ''I was unable to retain another attorney at this point, '' and ''Attorney Avitable [sic] was knowledgeable in the Social Security laws and procedures and assured me he would do everything possible to rectify the situation and further agreed to keep me fully informed.'' Doc. #12-2 at 2. At the evidentiary hearing, Attorney Cohn said that she told Attorney Avitabile: ''Look, you‘ve made this mess. Tell me how we can get out of it.''

On April 27, 2012, Attorney Avitabile wrote to the Social Security Appeals Council asking to have the case reopened so that he could present new medical evidence and further seeking an extension of time to file a court action to challenge the administrative decision. Doc. #7-6; 42 U.S.C. § 405(g) (authorizing Social Security Administration to extend the 60-day time for filing a court action). The letter did not mention that Attorney Avitabile had misled plaintiff and Attorney Cohn about having previously filed a federal court complaint. According to Attorney Cohn, she demanded and received a copy of this letter. Doc. #12-2 at 2. She states that she then called the Appeals Council to follow up on this letter and was advised that the Council had six months to act on the extension request and usually took the full time to make a decision. Id. at 2-3.

Almost five months later and ''worried about the possibility of an unfavorable result, '' Attorney Cohn herself decided to write to the Appeals Council. Id. at 3. By letter dated September 11, 2012, she wrote to the Council asking for an extension of time on the ground that plaintiff ''was misled by counsel and believed all deadlines had been met and the case was filed in a timely manner.'' Doc. #10-1 at 5. She attached to the letter an affidavit with Attorney Avitabile‘s notarized signature, stating in relevant part that he had ''erroneously informed [Attorney Cohn] that the [federal court] complaint was filed.'' Doc. #10-1 at 6.

Following this letter, the Social Security Appeals Council granted plaintiff‘s request for extension in November 2012, but then later revoked its grant of the extension in September 2013. See Doc. #11 at 3-4 (describing details of correspondence exchanged between Attorney Cohn and Social Security Appeals Council). In October 2013, Attorney Cohn wrote to the Appeals Council to object, and then Attorney Cohn finally filed the instant federal court complaint on December 18, 2013. Id. at 4-5.


The doctrine of equitable tolling allows a court to excuse a party‘s failure to timely comply with a legally required filing deadline. Although the ''equitable'' moniker might suggest that a court has unfettered discretion to decide if a default should be overlooked, it is well established that the invocation of equitable tolling is subject to at least two basic pre-conditions. First, a party must show that extraordinary circumstances stood in his way to prevent timely filing. Second, the defaulting party must show that-notwithstanding the obstacle posed by extraordinary circumstances-he pursued his rights with reasonable diligence throughout the time period that he seeks to have tolled. See Menominee Indian Tribe of Wisconsin v. United States, 136 S.Ct. 750, 755 (2016); Martinez v. Superintendent of E. ...

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