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Akbar v. Commissioner, Social Security Administration

United States District Court, N.D. Georgia, Atlanta Division

May 9, 2018

AYESHA AKBAR, Plaintiff,
v.
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.

          UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

          ALAN J. BAVERMAN UNITED STATES MAGISTRATE JUDGE

         This matter is presently before the Court a motion for an award of backpay and Title II benefits, [Doc. 2], filed by Plaintiff Ayesha Akbar, and a motion to dismiss the complaint for failure to state a claim, [Doc. 11], filed by the defendant Commissioner of the Social Security Administration. For the reasons set forth herein, the undersigned RECOMMENDS that the motion for an award of backpay and Title II benefits, [Doc. 2], be DENIED and that the motion to dismiss the complaint for failure to state a claim, [Doc. 11], be GRANTED.

         I. Motion for an Award of Backpay and Title II Benefits

         Plaintiff, who is proceeding pro se, seeks an award of Social Security disability benefits that she argues the Commissioner has wrongfully failed to pay.[1][See generally Doc. 2]. The motion is due to be denied as premature.

         The United States is immune from suit except when Congress waives its sovereign immunity. Lehman v. Nakshian, 453 U.S. 156, 160 (1981); Jackson v. Astrue, 506 F.3d 1349, 1352-53 (11th Cir. 2007). Congress waived the United States's immunity from suits over Social Security disability benefits in 42 U.S.C. § 405(g) by conferring jurisdiction upon federal courts to review and modify or reverse final decisions made by the Commissioner of Social Security. See Huie v. Bowen, 788 F.2d 698, 705 (11th Cir. 1986). The subsequent provision further states, “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. No. action against the United States, the Commissioner of Social Security, or any officer or employee thereof shall be brought under section 1331 or 1346 of Title 28 to recover on any claim arising under this subchapter.” See 42 U.S.C. § 405(h); see also Weinberger v. Salfi, 422 U.S. 749, 756-57 (1975). As a result, Plaintiff's claims may be brought only as a review of the administrative record, pursuant 42 U.S.C. § 405(g). See Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 8-9 (2000); Jackson, 506 F.3d at 1353.

         Here, Defendant has yet to file an answer to the complaint or file a certified copy of the administrative record. (See Dkt.). It is therefore impossible for the Court, at this point in time, to review the administrative record for any error Plaintiff may allege. Accordingly, the undersigned finds that Plaintiff's motion for an award of benefits is premature.

         The undersigned therefore RECOMMENDS that the District Judge DENY Plaintiff's motion for an award of backpay and Title II benefits, [Doc. 2], WITHOUT PREJUDICE. Should the District Judge determine that the motion to dismiss should be denied and that the case may proceed, the Commissioner will then be required to file an answer and the administrative transcript, and the Court will subsequently enter a scheduling order directing Plaintiff to file a brief asserting her allegations of error.

         II. Motion to Dismiss

         The Social Security Act provides that a claimant seeking review of a final decision of the Commissioner must file a civil action “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 Commissioner interprets “mailing” as the date the claimant receives notice of the adverse administrative decision, 20 C.F.R. § 404.981, and presumes that the notice is received five days after the date the notice is issued, 20 C.F.R. § 422.210(c). Thus, a complaint is timely if it is filed within sixty-five days of the date on the notice of adverse decision.

         The sixty-day period is a period of limitation, which may be tolled by the courts in rare cases “where the equities in favor of tolling the limitations period are ‘so great that deference to the agency's judgment is inappropriate.' ” Bowen v. City of New York, 476 U.S. 467, 480 (1986) (quoting Mathews v. Eldridge, 424 U.S. 319, 330 (1976)); see also Bost v. Fed. Express Corp., 372 F.3d 1233, 1242 (11th Cir. 2004) (“Equitable tolling is an extraordinary remedy which should be extended only sparingly.”) (punctuation omitted).

         In the Eleventh Circuit, “a claimant must justify her untimely filing by a showing of extraordinary circumstances.” Jackson v. Astrue, 506 F.3d 1349, 1353 (11th Cir. 2007). This standard may be met where, despite the plaintiff's diligence, “the defendant misleads the plaintiff, allowing the statutory period to lapse; or when the plaintiff has no reasonable way of discovering the wrong perpetrated against her.” Id. (internal quotations marks omitted). Courts in this Circuit have also recognized that “equitable tolling may be warranted in the social security context when a plaintiff can demonstrate that a mental impairment hindered [her] ability to seek judicial review, ” Cochran v. Astrue, No. 8:09-cv-160-T-33TBM, 2011 WL 899365, at *5 (M.D. Fla. Feb. 24, 2011) (citing Elchediak v. Heckler, 750 F.2d 892, 894 (11th Cir. 1985)), and that equitable tolling may apply where a plaintiff timely files a defective pleading in the proper federal district court and the court treats it as effective until expiration of the limitations period, Jackson, 506 F.3d at 1357. Garden-variety negligence is not a basis for equitable tolling, however, Bryant v. U.S. Dep't of Agriculture, 967 F.2d 501, 504 (11th Cir. 1992), nor does ignorance of the law, standing alone, satisfy the “extraordinary circumstances” test, Jackson, 506 F.3d at 1356.

         The Commissioner contends that Plaintiff's complaint should be dismissed because it was not timely filed and no circumstances in this case justify equitable tolling of the sixty-day requirement. [See generally Doc. 11]. She points out that on September 30, 2016, this Court remanded Plaintiff's claim for DIB and SSI to the Commissioner for further administrative proceedings in Akbar v. Berryhill, Civ. Action No. 1:15-CV-00329-AJB (N.D.Ga.) (hereinafter, “Akbar I”), ECF No. 13. On March 17, 2017, an Administrative Law Judge (“ALJ”) issued a decision denying Plaintiff's claims for DIB and SSI as to the period of October 22, 2007, through November 27, 2012; the Commissioner mailed a copy of the adverse decision to Plaintiff; and Plaintiff timely filed exceptions. [Doc. 11 at 2; Doc. 11-1 at 3]. On July 8, 2017, the Appeals Council denied Plaintiff's exceptions and sent a notice to Plaintiff, thereby rendering the ALJ's decision the final decision of the Commissioner; making July 13, 2017, the presumed date of receipt of the notice; and setting September 11, 2017, as the deadline by which Plaintiff was required to file her complaint in federal court. [Doc. 11 at 2-3, 5; Doc. 11-1 at 3, 36]. The Commissioner contends that the Appeals Council notice “advised Plaintiff of her right to commence a civil action within sixty (60) days from the date of receipt, ” [Doc. 11 at 2], yet Plaintiff did not initiate this case until November 8, 2017, nearly two months after the statute of limitations had run, [Doc. 11 at 2-3, 5; Doc. 11-1 at 3; see also Doc. 1].

         Plaintiff's pro se response is not entirely clear, and she does not dispute that she was late in filing the present lawsuit. [See generally Doc. 12]. She does appear to argue, however, that she received misleading information from her attorney and representatives of the Commissioner; that she therefore mistakenly attempted to pursue her claims by filing motions in Akbar I; and that the Court should consider Akbar I in considering whether her late filing should be excused. [Id.].

         In reply, the Commissioner argues that Plaintiff did not respond to the merits of the Commissioner's motion and that Plaintiff relies instead on a mistaken interpretation of the Court's remand order, and the Commissioner therefore relies ...


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