United States District Court, D. New Jersey
MCNULTY UNITED STATES DISTRICT JUDGE
Mark Anthony Cardona filed an appeal of the
Commissioner's decision to deny further review of his
Social Security disability claim. His request was filed after
the deadline for appeal. Mr. Cardona impliedly seeks
equitable tolling of the deadline. The Commissioner opposes
plaintiff, Mark Anthony Cardona, filed a Social Security
disability claim on July 19, 2011. An Administrative Law
Judge ("ALJ") found Mr. Cardona partially disabled
on April 8, 2013. Mr. Cardona, through his attorney,
requested review of the decision on June 3, 2013. On December
4, 2014, the Appeals Council sent Mr. Cardona and his
attorney a denial notice. The notice stated that Mr. Cardona
had the right to commence a civil action within 60 days from
the date of receipt of notice.
Cardona claims he moved and changed his email address after
receiving the ALJ's decision. He states that the Appeals
Council sent the notice to his old address and an old email
address that he no longer used. Mr. Cardona admits that his
attorney received the Appeal Council notice. However, the
attorney, too, was allegedly unable to contact Mr. Cardona,
because the attorney also used Mr. Cardona's old address
and old email address.
Cardona filed this civil action, seeking review of the
Commissioner's decision, on June 29, 2017-about
two-and-a-half years after the Appeals Council sent notice.
The complaint contains an implied request for an extension of
time. On December 19, 2017, the Appeals Council sent the
plaintiff a letter denying the implied request. On January
16, 2018, the Commissioner filed a motion to dismiss Mr.
Cardona's complaint as untimely. Mr. Cardona has not
responded to this motion to dismiss.
are empowered to review final decisions of the Commissioner
of Social Security pursuant to 42 U.S.C. §§
(g) Judicial review. Any 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....
(h) Finality of Commissioner's decision. The findings and
decisions of the Commissioner of Social Security after a
hearing shall be binding upon all individuals who were
parties to such hearing. No findings of fact or decision of
the Commissioner of Social Security shall be reviewed by any
person, tribunal, or governmental agency except as herein
§ 405. Here, there is no dispute that the Appeals
Council's decision to deny review of the ALJ's
decision constituted a final decision of the Commissioner.
Mr. Cardona appeals the Council's decision to deny
of notice is deemed to occur on the date that the claimant
actually receives the Appeals Council's notice of denial.
Absent independent proof, the date of receipt is legally
presumed to be five days after the date on the notice. 20
C.F.R. §§ 416.1401. 416.1411. The 60-day period may
be extended by the Appeals Council on written request, upon a
showing good cause. 20 C.F.R. § 416.1468.
complaint was filed on June 29, 2017, about two-and-a-half
years after the filing deadline. The court has equitable
discretion to toll the 60-day period. See Bowen v. City
of New York, 476 U.S. 467, 478-82 (1986).
There are three principal bases for applying the doctrine of
equitable tolling: "(1) where the defendant has actively
misled the plaintiff respecting the plaintiffs cause of
action; (2) where the plaintiff in some
extraordinary way has been prevented from asserting his or
her rights; or (3) where the plaintiff ...