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O'Connor v. Berryhill

United States District Court, D. Colorado

November 15, 2017

ANDREW J. O'CONNOR, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND ORDER

          Nina Y. Wang, United States Magistrate Judge

         This civil action comes before the court on the Acting Commissioner of Social Security's Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1) (“Motion to Dismiss”). [#11, filed May 12, 2016]. Also before the court is Plaintiff's Motion for Summary Judgment. [#22, filed November 3, 2017]. The Motion to Dismiss and Motion for Summary Judgment were referred to the undersigned Magistrate Judge pursuant to the Order Referring Case dated November 3, 2017 [#20] and the memoranda dated November 3, 2017 [#21] and November 8, 2017 [#23]. This court has reviewed the Motion to Dismiss and Response thereto, the Motion for Summary Judgment, the entire case file, and the applicable case law, and respectfully RECOMMENDS that the court DENY both the Motion to Dismiss and the Motion for Summary Judgment.

         BACKGROUND

         On March 18, 2016, Plaintiff Andrew J. O'Connor initiated this action pro se pursuant to Titles II and XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 401-33 and 1381-83(c), for review of the Commissioner of Social Security's (the “Commissioner”) final decision denying his application for Disability Insurance Benefits (“DBI”) and Supplemental Security Income (“SSI”). See [#1]. The court derives the following facts from the Complaint.

         Mr. O'Connor's disability arises from an automobile accident in 1992, which was caused by a drunk driver hitting Plaintiff's vehicle head-on and which resulted in Plaintiff sustaining a traumatic brain injury and spending over thirteen months in the hospital. See [id.]; see also [#12 at 2]. Mr. O'Connor applied for DBI and SSI on November 25, 2013. [#1 at 3]. His application was denied on June 6, 2014. Id. Plaintiff thereafter requested a hearing before an administrative law judge (“ALJ”) and appeared for a hearing on August 3, 2015. Id. The ALJ ruled that Plaintiff was not disabled under the Act and, on December 2, 2015, Plaintiff filed a request for review of the decision. [Id. at 4]. On January 18, 2016, Mr. O'Connor received the notice of the Appeals Council denying his request for review of the ALJ's decision. [Id.] Mr. O'Connor initiated this civil action on March 18, 2016.

         On March 29, 2016, the court issued an Order instructing Plaintiff and the Commissioner to prepare and file a Joint Case Management Plan for Social Security Cases (“JCMP”), specifying in part that the JCMP should be filed within ten days of the Answer, and the Answer should be filed “no later than sixty (60) days, or sooner if practicable, after service…” [#8 at 2, 3]. The Order further specified that Plaintiff's opening brief would be due thirty days after the filing of the JCMP. Id. The Parties never filed a JCMP. Instead, on May 12, 2016, the Commissioner filed the Motion to Dismiss pursuant to Rule 12(b)(1), arguing that Plaintiff's Complaint must be dismissed because it was filed more than sixty days after receipt of the “Final Decision” of the Commissioner. [#11]. The Motion to Dismiss also preemptively argued that equitable tolling is not appropriate to excuse Plaintiff's late filing. See [id.] On May 26, 2016, Plaintiff filed a Response, asserting that the Complaint is timely and, in the alternative, the court should equitably toll the deadline. [#12]. The Commissioner did not file a reply. The case was ultimately reassigned, see [#15, #18], and referred to this Magistrate Judge, see [#20]. After which, on November 3, 2017, Plaintiff filed the Motion for Summary Judgment, [#22], to which the Commissioner has not yet responded.

         ANALYSIS

         I. Motion to Dismiss

         The Commissioner argues that the Complaint should be dismissed as untimely. Through the affidavit of Kathie Hartt, Chief of Court Case Preparation and Review Branch 2 of the Office of Appellate Operations, Office of Disability Adjudication and Review, Social Security Administration, the Commissioner represents that “[o]n January 9, 2016, the Appeals Council sent, by mail addressed to the plaintiff at [redacted address] with a copy to the representative, notice of its action on the plaintiff's request for review and of the right to commence a civil action within sixty (60) days from the date of receipt.” [#11-1 at 3, ¶ 3 (citing #11-1 at 29)] (emphasis added). The prevailing presumption is that an applicant receives a notice from the Appeals Council within five days of the date on which the notice is mailed. Therefore, the Commissioner argues, because the notice was mailed to Mr. O'Connor on January 9, 2016, we must presume he received the notice by January 14, 2016. In turn, January 14 triggers the sixty-day period within which he must file a civil action, and his Complaint is untimely because it was filed on March 18, 2016, four days after the sixtieth day. Additionally, there is no record that Plaintiff filed a request for extension of time to file a civil action as specified in the Appeals Council's notice.

         In his Response, Plaintiff reasserts that he received the notice of the Appeals Council on January 18, 2016, and contends that his Complaint was thus due on or before March 22, 2016. [#12 at 3]. Plaintiff cites no authority for his calculation of deadlines. He argues that, in the alternative, the court should equitably toll his deadline for filing the Complaint on account of his traumatic brain injury. [Id.]

         A. Governing Law

         1. Pro Se Filings

         As mentioned above, Mr. O'Connor is appearing pro se, and as a result, the court would generally “review his pleadings and other papers liberally and hold them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States Govt, 472 F.3d 1242, 1243 (10th Cir. 2007) (citations omitted). It is unclear that Mr. O'Connor is entitled to a liberal construction of his filings, however, because he is a trained attorney. See [#12 at 1 (“Plaintiff graduated from law school in 1987 and practiced law as an assistant public defender…”)]. See Committee on the Conduct of Attorneys v. Oliver, 510 F.3d 1219, 1223 (10th Cir. 2007); Tatten v. Bank of Am. Corp., 562 F. App'x. 718, 720 (10th Cir. 2014). In an abundance of caution, this court will apply a liberal construction to the instant Motions, but is mindful that its role is not to act as a pro se litigant's advocate, Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009), or to “construct arguments or theories for the plaintiff in the absence of any discussion of those issues, ” Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (internal citation omitted).

         2. Applicable Statute of Limitation and Federal Rule ...


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