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Cardona v. Berryhill

United States District Court, D. New Jersey

June 8, 2018

MARK ANTHONY CARDONA, Plaintiff,
v.
NANCY A. BERRYHILL, Commissioner of Social Security,, Defendant.

          OPINION

          KEVIN MCNULTY UNITED STATES DISTRICT JUDGE

         Plaintiff 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 this request.

         I. BACKGROUND

         The 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.

         Mr. 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.[1] 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.

         Mr. 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.

         II. DISCUSSION

         Courts are empowered to review final decisions of the Commissioner of Social Security pursuant to 42 U.S.C. §§ 4O5(g)-(h), 1383(c)(3).

(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 provided....

         42 USC § 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 review.

         "Receipt" 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.

         This 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 ...

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