Washington v. Kijakazi

SYBIL Y. WASHINGTON, o/b/o N.J.W., Claimant, v. KIBLO KIJAKAZI, Social Security Administration, Acting Commissioner, Defendant.

Civil Action No. 2:20-CV-00908-CLS

United States District Court, N.D. Alabama, Southern Division

August 19, 2021

MEMORANDUM OPINION AND ORDER

Claimant Sybil Y. Washington, commenced this action on behalf of her minor child, N.J.W., pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final adverse decision of the Commissioner, affirming the decision of the Administrative Law Judge (“ALJ”), and thereby denying the claim for childhood disability benefits.^[1]

The court's role in reviewing claims brought under the Social Security Act is a narrow one. The scope of review is limited to determining whether there is substantial evidence in the record as a whole to support the findings of the Commissioner, and whether correct legal standards were applied. See Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988); Tieniber v. Heckler, 720 F.2d 1251, 1253 (11th Cir. 1983).

Claimant was two years old at the time of the administrative decision and he alleged childhood disability due to low birth weight and asthma.^[2] The ALJ found that claimant's conditions of asthma and allergic rhinitis were severe impairments.^[3] Even so, the ALJ found that the claimant did not have an impairment or combination of impairments that met, medically equaled, or functionally equaled one of the listed impairments.^[4] Claimant appealed the ALJ's decision to the Appeals Council, which denied review on March 4, 2020. Thereafter, on June 26, 2020, claimant filed this civil action to challenge the ALJ's decision.

Claimant presents two arguments: first, that claimant timely filed a civil action requesting for review of the agency's decision by this court, even though it was filed beyond the statutorily prescribed sixty-day period;^[5] and, second, that the administrative law judge erred in assessing three of the six domains of functioning for childhood disability claims.

A. Timeliness

As noted above, the Appeals Council denied claimant's request for review of the ALJ's decision on March 4, 2020, and issued a notice to claimant of that decision.^[6] The notice provided claimant the following guidance with regard to further action that could be taken:

● You have 60 days to file a civil action (ask for court review).

● The 60 days start the day after you receive this letter. We assume you received this letter 5 days after the date on it unless you show us that you did not receive it within the 5-day period.

● If you cannot file for court review within 60 days, you may ask the Appeals Council to extend your time to file. You must have a good reason for waiting more than 60 days to ask for court review. You must make the request in writing and give your reason(s) in the request.

You must mail your request for more time to the Appeals Council at the address shown on the top of this notice.^[7]

Claimant filed this civil action on June 26, 2020, well beyond the sixty-day limitation period. Claimant acknowledges that the civil action was untimely, but argues that, because claimant's mother made a documented effort to request an extension of the time to file a civil action by telephone, and because the local offices of the Social Security Administration were shut down for in-person service as of March 17, 2020, due to precautions taken for COVID-19, the doctrine of equitable tolling should be invoked. The Commissioner contends: that the complaint should be dismissed as untimely; and that, even if the civil action was considered timely filed, the ALJ's decision should be upheld.

The doctrine of equitable tolling allows a court to pause the running of the statute of limitations where extraordinary circumstances have been shown. Heimeshoff v. Hartford Life & Acc. Ins. Co., 571 U.S. 99, 114 (2013). “Federal courts have typically extended equitable relief only sparingly. ” Irwin v. Department of Veterans Affairs, 498 U.S. 89, 96 (1990) .

The Supreme Court held in Bowen v. City of New York, 476 U.S. 467 (1986), that “application of a traditional equitable tolling principle to the 60-day requirement of [42 U.S.C.] § 405(g) [i.e., the provision of the Social Security Act governing judicial review of Supplemental Security Income denials, ] is fully consistent with the congressional purpose and is nowhere eschewed by Congress.” Id. at 480 (quotation marks omitted & bracketed text supplied). Subsequently, in Jackson v. Astrue, 506 F.3d 1349 (11th Cir. 2007), the Eleventh Circuit examined the showing that must be made by a Social Security claimant in order to equitably toll the limitations period. The Court concluded that “traditional equitable tolling principles require a claimant to justify her untimely filing by a showing of extraordinary circumstances, ” rather than good cause for the delay: the standard for requests for extension of time made to the Appeals Council. Id. at 1353. “Extraordinary circumstances” include “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 . . . .” Id. (quoting Cabello v. Fernandez-Larios, 402 F.3d 1148, 1153 (11th Cir. 2005)). Equitable tolling is appropriate when “extraordinary circumstances are both beyond the plaintiff's control and unavoidable even with diligence.” Sandvik v. United States, 177 F.3d 1269, 1271 (11th Cir. 1999).

Several courts have considered whether the COVID-19 pandemic is an extraordinary circumstance that provides justification for untimely filings, and each have held that an individual must show that he was diligently pursuing his rights, and how, specifically, the pandemic prevented him from timely filing. See., e.g., Klick v. Cenikor Foundation, 509 F.Supp.3d 951, 960 (S.D. Tex. 2020) (plaintiff's diligence combined with the pandemic and other issues justified equitable tolling); Willard v. Industrial Air, No. 1:20-cv-823, 2021 WL 309116, at *4-5 (M.D. N.C. Jan. 29, 2021) (plaintiff failed to show his diligence in pursuing his rights, and could not rely on the “chaos created by the pandemic alone to justify equitable tolling”); Cummins v. Ascellon Corp., No. DKC 19-2953, 2020 WL 6544822, at *10 (D. Md. Nov. 6, 2020) (where filing took place on March 3, 2020, “a time when the COVID crisis was both new and reaching a fever pitch, ” equitable tolling was allowed); Hood v. Catholic Health Systems, Inc., No. 1:20-cv-673, 2020 WL 8371205, at *6 (W.D. N.Y. Sept. 28, 2020) (parties did not dispute that the COVID-19 pandemic was “extraordinary and unpredictable, ” but plaintiff failed to show that the pandemic actually affected her ability to timely file); Cowan v. Davis, No. 1:19-cv-00745-DAD, 2020 WL 4698968, * 5 (E.D. Cal. Aug. 13, 2020) (“COVID-19 pandemic undoubtedly presents an extraordinary circumstance impacting petitioner's right to the assistance of appointed habeas counsel in preparing his federal petition.”); Dunn v. Baca, No. 3:19-cv-702-MMD-WGC, 2020 WL 2525772 (D. Nev. May 18, 2020) (equitable tolling allowed where petitioner, represented by the Federal Public Defender, was diligently pursuing claim in the face of “the extraordinary circumstance of the COVID-19 pandemic”).

Here, claimant contends that his mother obtained an extension to file a civil action telephonically. The administrative transcript contains a “Report of Contact” showing that claimant's mother contacted an individual in the “Congressional and Public Affairs Branch” on May 1, 2020. The report reads as follows:

Ms. Sybil Yvette Washington, mother of Nicholas Washington, called the Congressional and Public Affairs Branch on May 1, 2020, to report that she would like to request an ‘Extension of Time' to file a Civil Action.

She will need time to retain an attorney for her child's case.

Tr. 3. Claimant also submitted an unsworn declaration, stating that:

Prior to my filing the Pro Se complaint in this matter on behalf of my son, I contacted the Social Security Administration in Birmingham, Alabama on May 1, 2020 by telephone and was informed that I would have an extension of time to file a civil action on behalf of my son.

Doc. no. 18 (Exhibit B to Claimant's Brief). The report of contact is ambiguous, but establishes that claimant's mother made an attempt to protect claimant's rights within the time that the civil action was due to be filed.

Claimant also argues that he was prevented from timely filing a civil action because shortly following the Appeals Council's denial of review on March 4, 2020, the President of the United States declared a national emergency due to the pandemic.^[8] In turn, the Social Security Administration issued a statement closing all local Social Security offices to the public for in-person service, effective March 17, 2020. Instead, the Social Security Administration directed clients to: use the online services; or, if unable to do so, to contact the local office by telephone for assistance. The Social Security Administration also provided a national 1-800 number.^[9]

Upon consideration of the record, the court finds that claimant has satisfied the criteria for equitable tolling. While it is true that claimant did not follow the Appeals Council's instructions to make a written request for additional time Claimant's mother diligently pursued claimant's right to judicial review, by contacting the Social Security Administration prior to the expiration of the sixty-day period for filing a civil action. Claimant's time to file fell during the early and arguably most chaotic stage of the COVID-19 outbreak, when all things were uncertain. That fact, a circumstance beyond claimant's control, along with claimant's mother's diligence in attempting to...