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Berrigan v. Astrue

October 29, 2010

NANCY LYNN BERRIGAN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER REGARDING DEFENDANT"S MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6)

(Document 14)

Plaintiff Nancy Lynn Berrigan ("Plaintiff") filed the instant action on February 2, 2010. On June 22, 2010, Defendant filed a Motion to Dismiss the Complaint pursuant to Federal Rule 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.

FACTS AND PRIOR PROCEEDINGS

Plaintiff Nancy Lynn Berrigan ("Plaintiff") filed an application for benefits under Titles II and XVI of the Social Security Act on November 27, 2006. (Doc. 14-1 at 8.) Both claims were denied on June 6, 2007, upon reconsideration on November 19, 2007, and were also denied subsequent to a hearing with Administrative Law Judge ("ALJ") James P. Berry on July 22, 2009. (Doc. 14-1 at 8.)

On September 2, 2009, the Appeals Council sent Plaintiff a notice of its denial of review and adoption of ALJ Berry's decision; the notice also informed Plaintiff that she had sixty days to file a civil action to review the Appeals Council's decision. (Declaration of Joan DeVera at ¶ 3(a); Doc. 14-1 at Exh. 2.) On November 5, 2009, Plaintiff requested an extension of time to file her civil action. (DeVera Dec. at ¶ 3(b).) On December 23, 2009, the Appeals Council granted this request, thereby permitting Plaintiff to file her civil action as late as January 27, 2010. (DeVera Dec. at ¶ 3(b); Doc. 14 at 2; Doc. 14-1 at Exh. 2.)

The parties have each produced varied copies of the letter from the Appeals Council granting Plaintiff's request for a thirty-day extension. (Doc. 14-1 at Exh. 4; Doc. 17 at Exh. 1.) The copy provided by Defendant includes a date stamp in the top right corner which clearly states "DEC 23 2009." (Doc. 14-1 at Exh. 4.) The copy provided by Plaintiff, however, has no such date stamp. (Doc. 17 at Exh. 1.)

On February 2, 2010, Plaintiff filed her complaint. (DeVera Dec. at ¶ 3(c); Doc. 1.) On June 22, 2010, Defendant filed the instant motion. (Doc. 14.) On July 6, 2010, Plaintiff filed her opposition. (Doc. 17.)

SCOPE OF REVIEW

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 (9th 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 (9th Cir.1981). The court must accept as true all factual allegations in the complaint, construing the complaint in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). 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 (9th Cir. 1997).

DISCUSSION

1. Untimely Complaint

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 ...


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