David S. Manley, Plaintiff-Appellant, v. Kenneth S. Apfel,, (2nd Cir. 2005)

Text

---

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT SUMMARY ORDER THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 20th day of Two thousand and two.

PRESENT:

Hon. James L. Oakes, Hon. Thomas J. Meskill, Hon. Robert A. Katzmann, Circuit Judges.

David S. Manley, Plaintiff-Appellant, -v.- No. 01-6147

Kenneth S. Apfel, Defendant-Appellee.

David S. Manley, pro se, Staten Island, New York Appearing for Plaintiff-Appellant:

Appearing for Defendant-Appellee: Alan Vinegrad, U.S. Attorney, E.D.N.Y., Deborah B. Zwany, Varuni Nelson, Kathleen A. Mahoney, Assistant U.S. Attorneys, E.D.N.Y., Brooklyn, New York Appeal from the United States District Court for the Eastern District of New York (Charles P.

Sifton, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the District Court is AFFIRMED.

David S. Manley, pro se and in forma pauperis ("IFP"), appeals from a district court's judgment on the pleadings dismissing his complaint alleging, pursuant to 42 U.S.C. 405(g)

and 1383(c)(3), that the Social Security Administration ("SSA") incorrectly calculated his monthly disability benefits.

When reviewing determinations made by the SSA Commissioner, this Court conducts a plenary review of the administrative record. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir.

1998). However, this Court does not conduct a de novo review, but may only set aside the Commissioner's determinations if the factual findings are not supported by substantial evidence, or if incorrect legal standards were applied. See Bubnis v. Apfel, 150 F.3d 177, 181 (2d Cir.

1998). "Substantial evidence 'means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)

(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

The SSA is required to maintain records of personal income, and the absence of an entry of income for any period of time in the SSA's records is presumptive evidence that no such income was earned during that period. See 42 U.S.C. 405(c)(4)(B). Claimants may challenge the accuracy of an earnings record by filing a written request within the time limit for the year being questioned, see 20 C.F.R. § 404.820, and may also request a correction after the expiration of the time limit if one of several exceptions applies, see 20 C.F.R. § 404.822. However, for the reasons stated in the district court's opinion, none of the exceptions apply to Manley's case.

Specifically, Manley cannot claim the SSA initiated an investigation into his case because there is no evidence in the record that it did so, notwithstanding his allegations that the record may be incomplete.

Moreover, the district court correctly held that Manley was estopped from asserting that the SSA had a duty to inform him of the time limit, or that the time limit should be equitably tolled in light of his communications with the SSA, because, as this Court has held, "the [SSA]

cannot be expected to take the initiative in warning claimants (who do not ask) of the pit-falls and traps of limitations, or in keeping abreast of all aspects of every case in which they deal."

Thompson v. Richardson, 452 F.2d 911, 915 (2d Cir. 1971). Furthermore, while it appears, viewing the pleadings in the light most favorable to, and drawing all reasonable inferences in Manley's favor, as this Court must, see Davidson v. Flynn, 32 F.3d 27, 29 (2d Cir. 1994)), that SSA representatives could have assisted Manley to a greater extent by informing him of the time limitation, their failure to do so did not "hinder [Manley's] attempts to exercise [his] rights,"

because the representatives did not act "in a misleading or clandestine way." Wong v. Bowen, 854 F.2d 630, 631 (2d Cir. 1988)(per curiam). Accordingly, Manley cannot claim that the time limitation should be equitably tolled, and/or that the SSA failed to satisfy its duty to notify him of the time limit.

With regard to Manley's remaining claims, while it is true that the administrative record is replete with examples of error on the SSA's part (i.e. its loss of Manley's files and inability to promptly adjudicate his claims), the Commissioner's findings regarding Manley's untimely attempts to correct his earnings report were supported by substantial evidence in the record as a whole, and the additional evidence presented by Manley, both to the district court and to this Court, do not negate this conclusion. See Bubnis, 150 F.3d at 181. Moreover, Manley cannot appeal from the district court order denying him default judgment, because such an order is not final. See Harvey Constr. Co. v. Robertson-Ceco Corp., 10 F.3d 300, 304 (5th Cir. 1994).

Finally, Manley is not entitled to counsel in this action, as it is civil in nature, and the district court did not abuse its discretion in refusing to appoint counsel for him. See Jenkins v. Chemical Bank, 721 F.2d 876, 879 (2d Cir. 1983); Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2d Cir. 1989)(per curiam).

While Manley's failure to timely file his 1990 tax returns with the Internal Revenue Service, and his failure to timely file his amended returns with the SSA, may be understandable in light of his personal circumstances at the time, such compelling factors, unfortunately, do not render improper the decision of the district court. Under the standard of review we are bound to follow, we thus affirm the decision of the district court, largely for the reasons stated in the district court's opinion.

FOR THE COURT:

Roseann B. MacKechnie, Clerk By:

---