Randolph v. Comm'r of Soc. SEC. , 699 F. App'x 36 ( 2017 )

16-1813-cv
Randolph v. Comm’r of Soc. Sec.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 17th day of October, two thousand seventeen.
PRESENT: JOHN M. WALKER, JR.,
REENA RAGGI,
PETER W. HALL,
Circuit Judges.
_____________________________________
ILEEN RANDOLPH,
Plaintiff-Appellant,
v. No. 16-1813-cv
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
_____________________________________
FOR APPELLANT: Ileen Randolph, pro se, Brooklyn,
New York.
FOR APPELLEE: Varuni Nelson, Arthur Swerdloff,
Candace Scott Appleton, Assistant
United States Attorneys, for Bridget M.
Rohde, Acting United States Attorney for
the Eastern District of New York,
Brooklyn, New York.
Appeal from a judgment of the United States District Court for the Eastern District
of New York (Pamela K. Chen, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court entered on June 3, 2016, is
AFFIRMED.
Plaintiff Ileen Randolph appeals pro se from the judgment dismissing as untimely
her complaint challenging the Commissioner of Social Security’s denial of her request for
Supplemental Security Income. In the district court, Randolph admitted that her
complaint was untimely but argued that she was entitled to equitable tolling because she
had misunderstood the relevant filing deadline and a Social Security Administration
receptionist had told her that she had more time to file. The district court determined that
equitable tolling was not warranted. We review that decision for abuse of discretion. See
Torres v. Barnhart, 417 F.3d 276, 279 (2d Cir. 2005).1 We assume the parties’ familiarity
with the underlying facts, the procedural history of the case, and the issues on appeal,
which we reference only as necessary to explain our decision to affirm.
1
On appeal, Randolph makes no specific arguments as to the district court’s equitable
tolling ruling, instead asking this court simply to “review [her] case.” Appellant’s Br. 2.
We need not determine whether Randolph has abandoned her equitable tolling arguments,
see Cruz v. Gomez, 202 F.3d 593, 596 n.3 (2d Cir. 2000) (“When a litigant—including a
pro se litigant—raises an issue before the district court but does not raise it on appeal, the
issue is abandoned.”), because the record shows no basis for equitable tolling in any event.
2
A person may seek review of a final decision of the Commissioner of Social
Security by commencing a civil action within 60 days of when the notice of decision is
mailed to her, see 42 U.S.C. § 405(g), and receipt of the notice is generally “presumed to be
5 days after the date of such notice,” 20 C.F.R. § 422.210(c). Here, the Appeals Council
denied Randolph’s request for review on January 20, 2015. However, Randolph did not
file her complaint until April 10, 2015, some 80 days later. Insofar as Randolph sought
equitable tolling of the filing deadline, the burden of demonstrating her entitlement to such
relief rested with her. See Boos v. Runyon, 201 F.3d 178, 185 (2d Cir. 2000). Equitable
tolling applies when a litigant shows that “[s]he has been pursuing [her] rights diligently
and that some extraordinary circumstance stood in [her] way.” Torres v. Barnhart, 417
F.3d at 279 (internal quotation marks omitted). Upon reviewing the district court’s stated
reasons for denying Randolph equitable tolling, we conclude that the decision fell well
within the court’s discretion.
We have considered all of Randolph’s remaining arguments and conclude that they
are without merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
3