Wesley S. Waller v. Comr. of Social Security

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 05-15134 FEBRUARY 27, 2006
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 04-00488-CV-OC-10-GRJ
WESLEY S. WALLER,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(February 27, 2006)
Before TJOFLAT, BLACK and BARKETT, Circuit Judges.
PER CURIAM:
Wesley Stephen Waller appeals the district court’s order granting the
Commissioner of Social Security’s motion for summary judgment because Waller
failed to timely file his disability benefits case in the district court, as required by
42 U.S.C. §§ 405(g), 1383(c)(3). We conclude the district court did not err, and
affirm.
I. BACKGROUND
On November 5, 2004, Waller filed a complaint in the district court claiming
that the Administrative Law Judge (ALJ) erred in denying his disability benefits, a
decision which the Appeals Council (AC) refused to review. The Commissioner
filed a motion to dismiss, or, in the alternative, for summary judgment, stating:
(1) the AC denied Waller’s request for review of the ALJ’s decision on August 12,
2004; (2) pursuant to 42 U.S.C. § 405(g), Waller was required to file his complaint
in the district court 60 days from the AC’s denial, or by October 18, 2004; and
(3) he did not file his complaint until November 5, 2004. The Commissioner
asserted because Waller had failed to timely file his complaint, and circumstances
did not warrant equitable tolling of the statute of limitations, his claim should be
dismissed. Attached to the motion was a letter, dated August 27, 2004, addressed
to the Social Security Administration’s Office of the General Counsel (OGC), and
signed by Waller, requesting an “extension of time to hire an attorney to file a civil
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action.” Also attached was a declaration by John J. Timlin, the AC administrator
in charge of Waller’s case, stating that: (1) upon review of the ALJ’s decision, the
AC sent a notice of its action to Waller; (2) the notice informed Waller of his right
to commence a civil action within 60 days of receipt of the notice; and (3) he was
not aware, at the time he signed the declaration, of Waller’s request for an
extension of time to file a civil action. The district court granted the motion for
summary judgment.
Waller appeals, asserting the AC erred in not granting his request for an
extension because he had good cause. Waller further contends an affidavit in
which he described his state of mind constituted sufficient evidence of mental
illness to apply equitable tolling.
II. DISCUSSION
A. Request for extension
As an initial matter, to the extent Waller challenges the decision of the AC
not to grant an extension, that decision is not subject to judicial review. In Stone v.
Heckler, 778 F.2d 645 (11th Cir. 1985), we held the AC’s decision not to grant an
extension was not subject to judicial review and stated “a Social Security claimant
should not rely upon the possibility of an administrative extension of time” and
allowing judicial review “would allow claimants to frustrate the Congressional
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intent to forestall belated litigation of stale eligibility claims.” Id. at 648(quotations, alteration, and citation omitted).
B. Equitable tolling
“The question of whether equitable tolling applies is a legal one subject to de
novo review.” Cabello v. Fernandez-Larios, 402 F.3d 1148, 1153 (11th Cir.
2005). We review a district court’s grant of summary judgment de novo. Patrick
v. Floyd Medical Center, 201 F.3d 1313, 1315 (11th Cir. 2000).
Section 405(g) of Title 42 states, in relevant part:
Any individual, after any final decision of the Commissioner . . . 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.
42 U.S.C. § 405(g) (emphasis added); see also 42 U.S.C. § 1383 (incorporating
§ 405(g) by reference). The Supreme Court has held “application of a traditional
equitable tolling principle to the 60-day requirement of § 405(g) is fully consistent
with the overall congressional purpose and is nowhere eschewed by Congress.”
Bowen v. City of New York, 106 S. Ct. 2022, 2030 (1986) (quotations and citation
omitted).
In Bowen, the Supreme Court held because “the Government’s secretive
conduct prevent[ed] plaintiffs from knowing of a violation of rights,” equitable
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tolling of § 405(g) was appropriate. 106 S. Ct. at 2030. We have held equitable
tolling is reserved for “extraordinary circumstances,” which “is a fact-specific
determination because a finding of extraordinary circumstances necessary for
equitable tolling is reserved for extraordinary facts.” Cabello, 402 F.3d at 1154-55(quotations, alteration, and citation omitted). In Cabello, we noted:
equitable tolling is appropriate in situations where 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, as is the case here. Additionally, in order to
apply equitable tolling, courts usually require some affirmative
misconduct, such as deliberate concealment.
Id. at 1155 (quotation and citation omitted).
Here, it is undisputed Waller filed his complaint after the expiration of the
60-day statute of limitations. The only issue for this Court to resolve is whether
the evidence presented in Waller’s affidavit and the Bojarski Evaluation, construed
in the light most favorable to Waller, would give rise to equitable tolling.
Despite Waller’s statement in his affidavit regarding his inability to act due
to his mental illness, other evidence revealed: (1) Waller sent a letter to the OGC
requesting a time extension; and (2) Waller visited an attorney and provided her
with SSA documents prior to the expiration of the 60-day statute of limitations.
Additionally, the only professional evaluation of Waller’s condition, the Bojarski
Evaluation, was conducted more than eight months prior to the date on which he
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received notice of the AC’s decision, and, significantly, concluded Waller’s:
(1) ability to understand, remember, and carry out “short simple instructions” was
not impaired; and (2) ability to do so with “detailed instructions” only was
moderately impaired. These acts and evaluations are in conflict with his assertion
he was unable to timely file his complaint. Therefore, his affidavit constitutes “[a]
mere scintilla of evidence [and] . . . is insufficient to defeat a motion for summary
judgment.” Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243,
1249-50 (11th Cir. 2004).
III. CONCLUSION
Waller’s assertion the AC erred by not granting his request for an extension
is not subject to judicial review. Additionally, Waller did not show any affirmative
misconduct by the Commissioner which prevented him from filing his complaint
within the statute of limitations period, or that he was entitled to equitable tolling
for any other reason. The district court did not err in granting the Commissioner’s
motion for summary judgment.
AFFIRMED.
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