         08-3759-cv
         Brown v. Commissioner of Social Security



                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER

     RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUM M ARY ORDER IN A
     DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER TH E FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUM M ARY ORDER”). A PARTY CITING A SUM M ARY ORDER
     M UST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1               At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2       Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 3       on the 29th day of January, two thousand ten.
 4
 5       PRESENT:
 6                   RALPH K. WINTER,
 7                   JOHN M. WALKER, Jr.,
 8                   ROSEMARY S. POOLER,
 9                                     Circuit Judges.
10       _______________________________________________
11
12       Bruce S. Brown,
13
14                             Plaintiff-Appellant,
15
16                      v.
17                                                                    08-3759-cv
18       Commissioner of Social Security,
19
20                         Defendant-Appellee.
21       _______________________________________
22
23       FOR PLAINTIFF-APPELLANT:                     Bruce S. Brown, pro se, New York, New York.
24
25       FOR DEFENDANT-APPELLEE:                      Susan C. Branagan, Assistant United States
26                                                    Attorney, David S. Jones, Assistant United States
27                                                    Attorney; for Lev L. Dassin, Acting United States
28                                                    Attorney for the Southern District of New York,
29                                                    New York, New York.
30
31
 1   Appeal from the United States District Court for the Southern District of New York (McMahon,
 2   J.). UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND
 3   DECREED that the judgment of said District Court be and hereby is AFFIRMED.
 4
 5           Appellant Bruce S. Brown appeals from the district court’s judgment granting the
 6   Commissioner of Social Security’s motion to dismiss his amended complaint. We assume the
 7   parties’ familiarity with the facts, proceedings below, and specification of issues on appeal.
 8
 9           As an initial matter, we note that the district court’s decision granting the
10   Commissioner’s motion to dismiss was based in part on matters that were outside of the
11   pleadings. Accordingly, the court should have converted the Commissioner’s motion to dismiss
12   to a motion for summary judgment. See Fed. R. Civ. P. 12(d). However, this error was
13   harmless, since Brown was aware of the proposed basis for dismissal, and did, in fact, present a
14   full response. See Reliance Ins. Co. v. Polyvision Corp., 474 F.3d 54, 57 (2d Cir. 2007).
15
16           This Court reviews an order granting summary judgment de novo and considers whether
17   the district court properly concluded that there were no genuine issues of material fact and that
18   the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff &
19   Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). Although we resolve all factual disputes in
20   favor of the nonmoving party, “conclusory statements or mere allegations [are] not sufficient to
21   defeat a summary judgment motion.” Davis v. State of New York, 316 F.3d 93, 100 (2d Cir.
22   2002).
23
24           In the present case, we conclude that the Commissioner was entitled to judgment as a
25   matter of law. To the extent that Brown sought review of the Administrative Law Judge’s
26   October 2002 decision, the district court lacked subject matter jurisdiction over his complaint, as
27   he did not seek review of a final decision of the Social Security Administration. See Sims v.
28   Apfel, 530 U.S. 103, 106-07 (2000). To the extent that Brown sought review of the December
29   1995 or August 1997 decisions of the Social Security Administration Appeals Council, his
30   complaint was filed well beyond the applicable 60-day limitations period and Brown did not
31   allege any facts that would justify equitably tolling the limitations period. See 42 U.S.C.
32   § 405(g); Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
33
34             AFFIRMED.
35
36                                                        FOR THE COURT:
37                                                        Catherine O’Hagan Wolfe, Clerk
38
39




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