Ruiz v. Colvin

          RULING AND ORDER ON MOTION TO DISMISS

          VICTOR A. BOLDEN, UNITED STATES DISTRICT JUDGE

         Yvette Ruiz (“Plaintiff”), proceeding pro se, filed this Social Security disability claim under Section 205(g) of the Social Security Act, as amended by 42 U.S.C. § 405(g).

         Carol Colvin, Commissioner of Social Security (“Commissioner”) filed a motion to dismiss. Ms. Ruiz has not responded.

         For the following reasons, the motion to dismiss is GRANTED.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Allegations

         Because of back problems, verrucous veins, diabetes, high blood pressure, depression, and plantar fasciitis, Ms. Ruiz seeks Social Security disability benefits. ECF No. 1. She allegedly cannot work and can hardly walk-with constant daily pain. Id. Following a February 14, 2014 hearing, an Administrative Law Judge denied her claim on May 30, 2014. ECF No. 13.

         On August 6, 2015, the Appeals Council affirmed that decision. Id. The Appeals Council also recommended that Ms. Ruiz file a civil action in the district court within sixty days of receiving its decision further informed Ms. Ruiz that she could request an extension to file her civil action if she was unable to file within sixty days. Id.

         B. Procedural History

         On October 14, 2015, Ms. Ruiz filed her civil action one day after the sixty-day deadline, ECF No. 1, and moved for leave to proceed in forma pauperis. ECF Nos. 2. On October 19, 2015, Judge Margolis granted the motion., 6.

         On December 21, 2015, the Commissioner moved to dismiss this case. ECF No. 11. Because the Commissioner did not notice Ms. Ruiz, a self-represented litigant, the Court denied this motion without prejudice. ECF No. 12.

         On August 22, 2017, the Commissioner renewed the motion to dismiss and included a notice for this self-represented litigant. ECF No. 13. The Clerk's office mailed a copy to Ms. Ruiz the following day at the address in the Court's records, but the United States Postal Service returned the mailing as undeliverable. Ms. Ruiz has yet to respond or otherwise provide the Court with a forwarding address.

         II. STANDARD OF REVIEW

         Sections 205(g) and (h), and 405 (g) and (h), expressly limit judicial review of the Social Security Act. Under these provisions, a plaintiff must present her claims in the district court within 60 days after the mailing of the notice of a final decision, or within such further time as the Commissioner may allow. 42 U.S.C. § 405(g). The sixty-day time limit to file a civil action is a waiver of sovereign immunity. Bowen v. City of N.Y., 476 U.S. 467, 479 (1986) (“Petitioners next contend that if the 60-day limit is a statute of ...