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Derosa v. Colvin

United States District Court, E.D. North Carolina, Western Division

October 14, 2014

MONTRESSA B. DEROSA, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND RECOMMENDATION

JAMES E. GATES, Magistrate Judge.

In this action, plaintiff Montressa B. Derosa ("plaintiff") challenges the final decision of defendant Acting Commissioner of Social Security Carolyn W. Colvin ("Commissioner") denying her application for a period of disability and disability insurance benefits ("DIB") and supplemental security income ("SSI") on the grounds that she is not disabled. The case is before the court on the Commissioner's motion to dismiss (D.E. 12) plaintiff's complaint on the grounds that it was untimely filed. The motion has been fully briefed[1] and was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) (see Docket Entry dated 11 Sept. 2014). For the reasons set forth below, it will be recommended that the Commissioner's motion be allowed and that this action be dismissed.

I. BACKGROUND

On 9 May 2013, an Administrative Law Judge ("AU") issued a decision finding that plaintiff was not disabled and therefore not entitled to DIB or SSI. (ALJ Dec. (D.E. 13-2) 4[2])" Plaintiff sought review of the ALJ's decision by the Appeals Council (see D.E. 13-3 at 2), but the Appeals Council denied plaintiff's request for review on 12 May 2014 (see D.E. 13-3 at 4). At that time, the decision of the ALJ became the final decision of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481. Plaintiff commenced this proceeding for judicial review on 22 July 2014, [3] pursuant to 42 U.S.C. §§ 405(g) (DIB) and 1383(c)(3) (SSI), by filing a motion to proceed in forma pauperis (D.E. 1). The following day, 23 July 2014, the court allowed the motion (see D.E. 5) and the complaint (D.E. 6) was filed.

II. APPLICABLE LEGAL PRINCIPLES

A. Determination of Proper Standard of Review

In her motion to dismiss, the Commissioner contends that plaintiffs complaint should be dismissed as untimely because it was filed more than 60 days after her receipt of the final decision of the Commissioner. However, she fails to cite in either her motion or supporting memorandum the Federal Rule of Civil Procedure under which she is proceeding. While in the memorandum she asserts that the complaint "fails to state a claim upon which relief can be granted" (Comm'r's Mem. 3), suggesting that she is proceeding under Rule 12(b)(6), she described the motion as one to dismiss for lack of subject matter jurisdiction in the docket entries for the motion and memorandum (see D.E. text at D.E. 12, 13), suggesting that she is proceeding under Rule 12(b)(1). A motion to dismiss a complaint as untimely is generally brought under Rule 12(b)(6). See Moseke v. Miller & Smith, Inc., 202 F.Supp.2d 492, 496 n.5 (E.D. Va. 2002) ("An expiration of the statute of limitations is properly analyzed under a [Rule 12(b)(6)] standard."); see also Veith v. United States, No. CIV.A 98-0074-R, 1998 WL 920398, *2 n.3 (WD. Va. 16 Nov. 1998) ("[W]here the statute of limitations is not a jurisdictional issue, the statute of limitations is normally raised in a motion to dismiss under rule 12(b)(6) rather than 12(b)(1).").

Here, however, both the Commissioner and plaintiff submitted documents relating to the date that the Appeals Council Notice was sent to and/or received by plaintiff, including a declaration (D.E. 13-1) by Kathie Hartt ("Hartt"), an official within the Social Security Administration, and an affidavit by plaintiff (D.E. 14-1). Because these documents contain information not referenced in the complaint, the court cannot consider them under the Rule 12(b)(6) standard. See, e.g., Winkelman v. Comm'r of Soc. Sec. Admin., No. 3:11-CV-1926, 2012 WL 1684602, at *1 (N.D. Ohio 24 Apr. 2012), report and recomm. adopted by 2012 WL 1684597, at *1 (15 May 2012) (ruling that where the Commissioner submitted the declaration of a Social Security Administration employee in support of a 12(b)(6) motion to dismiss an appeal as untimely, the court could not consider the Commissioner's motion to dismiss but rather only the alternative motion for summary judgment under Rule 56). Rather, the Commissioner's motion must be deemed one brought for summary judgment under Rule 56. See, e.g., Triplett v. Heckler, 767 F.2d 210, 211-12 (5th Cir. 1985) (holding that the district court should have converted the Commissioner's 12(b)(6) motion to dismiss a Social Security appeal as untimely to one for summary judgment under Rule 56 because it considered material outside the pleadings).

Before a court can convert a motion to dismiss to one for summary judgment, it must give the parties "a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d). Because plaintiff submitted an affidavit in her response to the Commissioner's motion, presumably to rebut Hartt's declaration, the court concludes that plaintiff has been afforded a "reasonable opportunity" to present materials relevant to her response to the Commissioner's motion. See Schooler v. Astrue, No. CIV.A. 4:10-5026, 2011 WL 1233104, at *1 n.2 (S.D. Tex. 31 Mar. 2011) ("[B]ecause Plaintiff filed a response in opposition to the [Commissioner's motion to dismiss his appeal as untimely] and attached additional materials to his briefing, Plaintiff has been given a reasonable opportunity' to present pertinent material as required by Rule 12(d).")

B. Summary Judgment Standard

A motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In analyzing whether there is a genuine issue of material fact, all facts and inferences drawn from the facts must be viewed in the light most favorable to the nonmoving party. Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 958 (4th Cir. 1996).

The burden is on the moving party to establish the absence of genuine issues of material fact and "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp., 477 U.S. at 323; Teamsters Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 119 (4th Cir. 1991) ("[W]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, disposition by summary judgment is appropriate."). If the movant meets its burden, then the non-moving party must provide the court with specific facts demonstrating a genuine issue for trial in order to survive summary judgment. Celotex, 477 U.S. at 323. The non-moving party is not permitted to rest on conclusory allegations or denials, and a "mere scintilla of evidence" will not be considered sufficient to defeat a summary judgment motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

C. Time for Appeal of a Final Decision of the Commissioner

Pursuant to § 405(g) of the Social Security Act ("the Act"), a claimant may obtain review of a final decision of the Commissioner "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." 42 U.S.C. § 405(g). The ...


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