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Willis v. Berryhill

United States District Court, M.D. North Carolina

January 30, 2017

MICHAEL RAY WILLIS, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Joe L. Webster United States Magistrate Judge

         Plaintiff, Michael Ray Willis, brought this action to obtain judicial review of a final decision of the Commissioner of Social Security denying his claims for a period of disability, Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("the Act").[1] Pending before the Court is Defendant's motion to dismiss Plaintiffs Complaint as time-barred. (Docket Entry 7.) Plaintiff has not filed a response. For the reasons stated herein, the Court recommends that Defendant's motion to dismiss be converted to a motion for summary judgment, and be granted.

         I. BACKGROUND

         On February 3, 2012, Plaintiff filed applications for DIB and SSI. (Docket Entry 8-1 at 8.) Plaintiffs claims were denied initially and upon reconsideration. (Id.) Plaintiff thereafter requested a hearing before an Administrative Law Judge ("ALJ"). (Id.) A hearing was held on June 18, 2014. (Id.) The ALJ issued an unfavorable decision on September 15, 2014. (Id. at 8-17.) Plaintiff thereafter sought review of the decision by the Appeals Council. This decision became the final administrative decision after the Appeals Council declined review on November 5, 2015. (Id. at 23-26.) The Denial Notice from the Appeals Council also informed Plaintiff of his right to file a civil action for review of the ALJ decision, and the proper procedure to file such action in the judicial district where Plaintiff lives. (Id. at 24-25.) It further stated that he had "60 days to file a civil action" and [t]he 60 days start[ed] the day after [Plaintiff] receive[d] [the] letter." (Id. at 25.) If Plaintiff needed an extension of time to file his civil action, he could seek an extension from the Appeals Council. (Id.)

         On January 20, 2016, Plaintiff filed an application to proceed in forma pauperis, along with the Complaint for review of the ALJ's decision denying his disability benefits. (Docket Entries 1, 2.) The Court thereafter granted Plaintiff IFP status (Docket Entry 4), and a summons was issued for Defendant. (Docket Entry 5.) Defendant then filed the pending motion to dismiss Plaintiffs Complaint as time-barred. (Docket Entry 7.)

         II. DISCUSSION

         1. Relevant Standard of Review

         Defendant contends that Plaintiffs complaint should be dismissed because Plaintiff did not institute this civil action until the time to do so expired. (Docket Entry 8 at 2.) Although not specifically referenced in Defendant's motion, "[a] motion to dismiss a complaint as untimely is generally brought under Rule 12(b)(6)."). Derosa v. Colvin, No. 5:14-CV-414-FL, 2014 WL 5662771, at *1 (E.D. N.C. Nov. 4, 2014) (citation omitted). In support of her motion to dismiss, Defendant relies upon the declaration of Kathie Hartt (and attached exhibits), an employee of the Office of Disability Adjudication and Review. (Docket Entry 8-1 at 1-4.) This document is not referenced in the Complaint, thus, this motion should be converted to a motion for summary judgment. Id. at *2 (citation omitted) ("Because these documents [relating to the date that the Appeals Council Notice was sent] contain information not referenced in the complaint, the court cannot consider them under the Rule 12(b)(6) standard."); see also Woods v. Colvin, No. 1:15CV763, 2016 WL 1328951, at *2 (M.D. N.C. Apr. 5, 2016) (citing Fed.R.Civ.P. 12(d) ("Because these documents contain information not referenced in the Complaint, the Commissioner's Motion to Dismiss should be converted into a motion for summary judgment.")). "When converting a motion to dismiss into a motion for summary judgment, [a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the [converted] motion." Woods, 2016 WL 1328951, at *2 (internal quotations and citation omitted). By Order dated January 12, 2017, the Court informed the parties of its consideration to construe Defendant's motion to dismiss as a motion for summary judgment, and further permitted Plaintiff additional time to respond to Defendant's motion. (Docket Entry 11.) Plaintiff has not filed a response. The undersigned therefore concludes that Plaintiff "has been afforded a 'reasonable opportunity' to present materials relevant to [his] response to the Commissioner's motion, " and finds that the Court should convert Defendant's motion to dismiss as a motion for summary judgment. Derosa, 2014 WL 5662771, at *2; see also Woods, 2016 WL 1328951, at *3 (converting motion to dismiss into summary judgment motion after Plaintiff was given a reasonable opportunity to respond).

         2. Summary Judgment Standard

         Summary judgment is appropriate when there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Zahodnick v. Int'lBus. Machs. Corp., 135 F.3d 911, 913 (4th Cir. 1997). The party seeking summary judgment bears the initial burden of coming forward and demonstrating the absence of a genuine issue of material fact. Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991) (citing Celotex v. Catrett, 477 U.S. 317, 322 (1986)). Once the moving party has met its burden, the non-moving party must then affirmatively demonstrate that there is a genuine issue of material fact which requires trial. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a fact finder to return a verdict for that party. Anderson v. Liberty Lobby, Inc., Ml U.S. 242, 250 (1986); Sylvia Dev. Corp. v. Calvert County, Md, 48 F.3d 810, 817 (4th Cir. 1995). Thus, the moving party can bear his burden either by presenting affirmative evidence or by demonstrating that the non-moving party's evidence is insufficient to establish his claim. Celotex, 477 U.S. at 331 (Brennan, dissenting). When making the summary judgment determination, the Court must view the evidence, and all justifiable inferences from the evidence, in the light most favorable to the non-moving party. Zahodnick, 135 F.3d at 913; Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196 (4th Cir. 1997). However, the party opposing summary judgment may not rest on mere allegations or denials, and the court need not consider "unsupported assertions" or "self-serving opinions without objective corroboration." Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996); Anderson, 477 U.S. at 248-49.

         3. Time for Appeal of the Commissioner's Final Decision

         Section 405(g) of the Act provides, 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." 42 U.S.C. § 405(g) (emphasis added). The sixty day requirement is not jurisdictional and is subject to equitable tolling. Bowen v. City of New York, 476 U.S. 467, 478-80 (1986). This limitations period has been modified by the Commissioner's regulations so that it begins only upon receipt of the notice, rather than upon its mailing. See 20 C.F.R. § 422.210(c). Social security regulations pertaining to judicial review provide:

Any civil action [seeking judicial review of a decision by an [ALJ] if the Appeals Council has denied the claimant's request for review] must be instituted within 60 days after the Appeals Council's notice of denial of request for review of the [ALJ's] decision or notice of the decision by the Appeals Council is received by the individual, institution, or agency, except that this time may be extended by the Appeals Council upon a showing of good cause. For purposes of this section, the date of receipt of notice of denial of request for review of the presiding officer's decision or notice of the decision by the Appeals Council shall be presumed to be 5 days after the date of such notice, unless there is a reasonable showing to the contrary.

20 C.F.R § 422.210(c) (emphasis added). Thus, the regulations provide that the date of receipt of notice is presumed to be five days after the date of such notice and a plaintiff can rebut this presumption by making a "reasonable showing to the contrary" that he did not receive notice within five days. Id. If the plaintiff successfully rebuts the presumption, the burden shifts to the Commissioner to show that the plaintiff received actual ...


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