United States District Court, D. Connecticut
RULING RE: MOTION TO DISMISS (DOC. NO. 15)
C. HALL, UNITED STATES DISTRICT JUDGE
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.
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
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.
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.
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.
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.
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.
STANDARD OF REVIEW
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).