The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS RE: DEFENDANT'S MOTION TO DISMISS (Doc. 14)
Plaintiff LaQuesha Coleman ("Plaintiff") filed the instant action on July 28, 2009. On January 8, 2010, Defendant filed a Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(6). Defendant argues that the Complaint is untimely. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Gary S. Austin, United States Magistrate Judge for findings and recommendations to the District Court.
On February 25, 2009, an Administrative Law Judge issued a decision denying Plaintiff's claim for benefits under Titles II and XVI of the Social Security Act. See, Declaration of Dennis Ford Dated October 16, 2010 )("Ford Decl.") (Doc. 14-2 at ¶ 3(a)). Plaintiff appealed the action. On April 14, 2009, the Appeals Council denied her request for review. Id . In the Notice of Action, the Appeals Council notified Plaintiff that she had 60 days to file a civil action, and the 60 days start to run the day after she receives the Notice. Id . Using these dates, Plaintiff had until June 18, 2009, to file her civil action.*fn1 Plaintiff did not request an extension of time to file a Complaint. Id . at ¶ 3(b). Plaintiff filed this action on July 28, 2009. (Doc. 1).
Defendant filed the instant motion to dismiss on January 8, 2010. (Doc. 14-1). Plaintiff filed an opposition on January 13, 2010. (Doc. 17). Defendant filed a reply on February 8, 2010. (Doc. 20).
A. Motion To Dismiss Standards
Fed. R. Civ. P. 12(b)(1) authorizes a motion to dismiss for lack of subject matter jurisdiction. Limits upon federal jurisdiction must not be disregarded or evaded. Owen Equip. & Erection Co. v. Kroger , 437 U.S. 365, 374 (1978). A plaintiff has the burden to establish that subject matter jurisdiction is proper. Kokkonen v. Guardian Life Ins. Co. , 511 U.S. 375, 377 (1994). When a defendant challenges jurisdiction "facially," all material allegations in the complaint are assumed true, and the question for the Court is whether the lack of federal jurisdiction appears from the face of the pleading. Thornhill Publ'g Co. v. Gen. Tel.& Elecs. , 594 F.2d 730, 733 (9th Cir. 1979); Mortensen v. First Fed. Sav. & Loan Ass'n , 549 F.2d 884, 891 (3d Cir. 1977); Cervantez v. Sullivan , 719 F.Supp. 899, 903 (E.D. Cal. 1989), rev'd on other grounds , 963 F.2d 229 (9th Cir. 1992).
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the sufficiency of the pleadings set forth in the complaint. Navarro v. Block , 250 F.3d 729, 732 (9 th Cir. 2001). A motion to dismiss for failure to state a claim should not be granted unless it appears beyond doubt that plaintiff can prove no set of facts to support the claim to entitle him to relief. See Hishon v. King & Spalding , 467 U.S. 69, 73 (1984) (citing Conley v. Gibson , 355 U.S. 41, 45-46 (1957)); see also Palmer v. Roosevelt Lake Log Owners Ass'n , 651 F.2d 1289, 1294 (9 th Cir. 1981). When a federal court reviews the sufficiency of a complaint, before the reception of any evidence, either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claim. Gilligan v. Jamco Dev. Corp. , 108 F.3d 246, 249 (9 th Cir. 1997).
Judicial review of the Commissioner's administrative decisions is governed by Section 405(g) and (h) of the Social Security Act, which reads in relevant part:
(g) Any individual, after any final decision of the Commissioner of Social Security 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.
(h) The findings and decision of the Commissioner after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of facts or decision of the Commissioner shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Commissioner, or any officer or employee thereof shall be ...