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




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