Alamo v. Berryhill

          RULING RE: MOTION TO DISMISS (DOC. NO. 15)

          JANET C. HALL, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff Ismael Alamo (“Alamo”) brings this appeal under section 405(g) of title 42 of the United States Code from the final decision of the Commissioner of the Social Security Administration (“SSA”), which denied his application for Title II disability insurance benefits and Title XVI supplemental security income. See Complaint (“Compl.”) (Doc. No. 1). The Commissioner moves to dismiss Alamo's Complaint as barred by the statute of limitations. Motion to Dismiss (Doc. No. 15).

         For the reasons set forth below, the court concludes that Alamo has a colorable claim for equitably tolling the 60-day statute of limitations. Because the record is insufficient to determine whether Alamo's mental impairment prevented him from complying with the limitations period, the court will hold an evidentiary hearing.

         II. FACTUAL BACKGROUND

         Alamo applied for disability and supplemental security income benefits on January 31, 2014, alleging a disability onset date of August 18, 2012. Compl. at 2 ¶ 5. The Commissioner denied Alamo's application initially on July 16, 2014, and upon reconsideration on October 20, 2014. Id. at 2 ¶¶ 5-6. Alamo requested a hearing with an ALJ, which was held before ALJ Noel on June 17, 2016. Id. at 2 ¶ 8.

         On August 31, 2016, the ALJ issued a decision finding that Alamo was not disabled. Id. Alamo requested review by the Appeals Council, which denied the request on September 25, 2017. Id. at 2 ¶ 9. Pursuant to the Social Security Act, Alamo had sixty days to commence a civil action from the date he received the letter denying his request, which was presumed to be five days after the letter was dated. 42 U.S.C. § 405(g). Since the Appeals Council mailed its letter to Alamo on September 25, 2017, Alamo had until November 29, 2017, to file a complaint before the 60-day time limit elapsed. Declaration of Cristina Prelle (“Prelle Decl.”) (Doc. No. 15-2) at 3. Alamo did not file his Complaint until February 2, 2018. Id. at 4.

         In an Affidavit, Alamo's counsel, Ivan Katz, states that he first met with Alamo to discuss representing him in appealing the Commissioner's denial of his disability claim on November 17, 2017. Affidavit of Ivan Katz (“Katz Aff.”) (Doc. No. 18-1) at 1. Katz avers that, shortly after the meeting, he sent Alamo a letter offering to represent him in his appeal and advising him that certain forms needed to be completed, signed, and returned to him no later than November 28, 2017. Id.

         Katz states that Alamo mailed him the required documents on November 24, 2017, but the documents never arrived at his office. Id. Sometime after November 24, 2017, Katz received an empty envelope from the U.S. Postal Service with a note explaining that there was “damage to your mail during handling by the Postal Service.” Id. at 1-2. Katz then sent a second set of documents to Alamo, including an Application to Proceed In Forma Pauperis. Id. at 2. When Katz received the documents in mid- December 2017, he saw that they were incomplete. Id. The Application to Proceed In Forma Pauperis was signed but contained none of the required information. Id. Katz subsequently sent another set of documents to Alamo. Id. On January 15, 2018, Katz faxed an Application to Proceed In Forma Pauperis to Alamo's sister, who faxed the completed form back to Katz on January 17, 2018. Id. Katz informed Alamo's sister that he needed the original, which he then received during the week of January 22, 2018. Id.

         On February 1, 2018, Katz mailed a letter to the Appeals Council seeking an extension of time to file a civil action for Alamo. Id. at 2-3. As of April 2, 2018, Prelle, the Chief of Court Case Preparation and Review Branch 4 of the Office of Appellate Operations, SSA, was not aware of any request for an extension of time filed by Alamo. Prelle Decl. at 3.

         III. STANDARD OF REVIEW

         Sections 205(g) and (h) of the Social Security Act provide the exclusive remedy for a plaintiff seeking judicial review of the Commissioner's final decision. 42 U.S.C. §§ 405(g), (h). The 60-day requirement in the Act for a plaintiff to commence a civil suit “is not jurisdictional, but rather constitutes a period of limitations.” Bowen v. City of New York, 476 U.S. 467, 478 (1986). “A statute of limitations defense, based exclusively on dates contained within the complaint or appended materials, may be properly asserted by a defendant in a Rule 12(b)(6) motion.” Paniagua v. Comm'r of Soc. Sec., 15-cv-20138 (JCM), 2017 WL 699117, at *2 (S.D.N.Y. Feb. 21, 2017) (citations omitted). “Rule 12(b)(6) provides the most appropriate legal basis for a motion to dismiss on statute of limitations grounds because expiration of the statute of limitations presents an affirmative defense.” Id. (internal citations and quotation marks omitted). In deciding a 12(b)(6) motion, the court accepts all factual allegations in the complaint as true and draws all reasonable inferences from those allegations in plaintiff's favor. See Crawford v. Cuomo, 796 F.3d 252, 256 (2d Cir. 2015).

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