United States District Court, D. Connecticut
MEMORANDUM OF DECISION AND ORDER GRANTING
DEFENDANT'S MOTION TO DISMISS [DKT.
Vanessa L. Bryant, United States District Judge
Darrell Jester filed an action pro se seeking review
of a decision of the Commissioner of the Social Security
Administration pursuant to 42 U.S.C. § 405(g) on August
13, 2018. [Dkt. 1 (Compl.)]. Before the Court is the
Commissioner's Motion to Dismiss the action as untimely
filed. [Dkt. 12 (Mot. to Dismiss)]. For reasons set forth
herein, the Court GRANTS the Commissioner's Motion to
August 14, 2017, Administrative Law Judge Matthew Kuperstein
determined that Mr. Jester became disabled because of his
legal blindness on June 1, 2015 but was not under a
disability from May 2, 2014 through May 31, 2015. [Dkt. 12
(Def. Mot. to Dismiss, Ex. 3, ALJ Decision) 4-12]. On May 3,
2018, the Appeals Council denied Mr. Jester's request for
review. [Id. at Ex. 4 (Notice of Appeals Council
Action)]; [Dkt. 1 (Compl.) at Ex. 1](same). The Appeals
Council notice explained how a claimant could file an action
for judicial review and placed the claimant on notice of the
60 day statutory limitation. [Dkt. 1 (Compl.) at Ex. 1 at
support of the Defendant's Motion to Dismiss, Cristina
Prelle, Chief of Court Case Preparation and Review Branch 4
of the Office of Appellate Operations of the Social Security
Administration submitted a sworn affidavit attesting that she
is unaware of any requests for an extension of time to file a
civil action filed with the Commissioner. [Dkt. 12 at Ex. 2
(Prelle Aff.)]. The Plaintiff did not file an opposition
brief to the Defendant's motion to dismiss. The Complaint
does not reference any extensions granted by the Commissioner
nor provide any basis for equitable tolling.
pursuant to D. Conn. L. R. Civ. P 7(a)(2), failure to submit
a memorandum in opposition to a motion may be deemed
sufficient cause to grant the motion, except where the
pleadings provide sufficient grounds to deny the motion.
Here, the Defendant's motion to dismiss was filed on
October 17, 2018. [Dkt. 12]. On October 31, 2018, the
Defendant served Mr. Jester with the requisite Notice to
Self-Representant Litigants Regarding Motions to Dismiss, as
required by D. Conn. L. R. Civ. P. 12(a). [Dkt. 16]. The
notice warns that a “Defendant's motion may be
granted and your claims may be dismissed without further
notice if you do not file opposition papers as required by
Rule 12 of the Federal Rules of Civil
Procedure…” Id. at 1. An opposition
brief to the motion was due on or before November 5, 2018. D.
Conn. L. R. Civ. P. 7(a)(2). The Court deems Plaintiff's
failure to respond to the Defendant's motion a basis to
grant the Defendant's motion to dismiss because the
Plaintiff's pleadings do not provide sufficient grounds
to deny the Defendant's motion.
U.S.C. § 405(g) states, in relevant part, “[a]ny
individual, after any final decision of the Commissioner of
Social Security made after a hearing to which he was a party,
irrespective of the amount in controversy, may obtain a
review of such decision by a civil action commenced within
sixty days after the mailing to him of notice of
such decision or within such further time as the Commissioner
of Social Security may allow.” (emphasis added). Social
Security regulations presume that a claimant receives notice
of the decision from the Appeals Council within 5 days after
the date of the notice, unless the Claimant reasonably
establishes otherwise. C.F.R. § 422.210(c).
Second Circuit has held that failure to file an action within
the 60 days of receipt of the notice of decision from the
Appeals Council bars judicial review, absent an extension
from the Commissioner or extraordinary circumstances
warranting equitable tolling. See Bachand v. Saul,
778 Fed.Appx. 74, 75 (2d Cir. 2019); Wong v. Bowen,
854 F.2d 630, 631 (2d Cir. 1988); see also Morales v.
Berryhill, No. 3:17-CV-0927 (MPS), 2018 WL 3748159 (D.
Conn. Aug. 7, 2018).
accounting for an additional 5 days for mailing, the period
to file suit expired on July 9, 2018 and the Complaint was
filed on August 13, 2018, 37 days later. The complaint
states, erroneously, that the Appeals Council rendered their
decision on May 23, 2018 and omits the date that Plaintiff
received the decision from the Appeals Council. [Dkt. 1
(Compl.) ¶ 8]. However, the Appeals Council decision,
dated May 3, 2018, is attached to the Complaint.
[Id. at Ex. 1]. Even assuming in arguendo
that the Appeals Council decision was issued on May 23, 2018
and not May 3rd, and accounting for the five day
mailing period under the C.F.R. § 422.210(c), the action
would still be untimely by 17 days.
Jester, having failed to respond to the motion to dismiss,
failed to rebut the presumption of receipt of the Appeal
Council's decision on or before May 8 2018 and failed to
establish that extraordinary circumstances exist to warrant
equitable tolling. Thus, the Complaint is dismissed as
Court therefore GRANTS the Defendant's Motion to Dismiss
this action pursuant to 42 U.S.C. § 405(g). The ...