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Jose A. Ureno, Sr v. Michael J. Astrue

May 16, 2011


The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge



Plaintiff Jose A. Ureno, Sr. ("Plaintiff") seeks judicial review of a decision by the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for disability insurance benefits ("DIB") pursuant to Title II of the Social Security Act. 42 U.S.C. § 405(g). On April 1, 2011, Defendant filed a motion to dismiss Plaintiff's complaint for lack of jurisdiction. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1


On September 8, 2009, an Administrative Law Judge ("ALJ") determined that Plaintiff was not disabled and issued a decision denying his application for disability benefits. (Doc. 11-1, ¶ 3(a), Exh. 1.) The Notice of Decision indicated that Plaintiff could file a request for review with the Appeals Council within 60 days from the date of receipt of the notice. (Doc. 11-1, Exh. 1, p. 1.) This notice is presumed to be received within five days of the date of the decision unless Plaintiff can show that it was not received within that period. 20 C.F.R. §§ 404.901, 416.1401. The Appeals Council will dismiss a late request for review unless good reason for not filing is shown. 20 C.F.R. §§ 404.968(b), 416.1468(b). Based upon the mailing date of the decision, Plaintiff had until November 12, 2009, to file a timely appeal.

According to Sylvia Lopez, Plaintiff's counsel at the time of the decision, neither she nor Plaintiff received a copy of the unfavorable decision at the time of mailing. (Doc. 14, ¶ 5.) Ms. Lopez contacted the Fresno Office of Disability Adjudication and Review on February 23, 2010, learned that a decision had been issued in September 2009, and requested and received a facsimile transmission of the decision. (Doc. 14, ¶¶ 4-5.) On March 1, 2010, Plaintiff, through his counsel, submitted a request for review of the hearing decision with a good cause statement for the late filing. (Doc. 11-1, ¶3(b), Exh. 2.) Plaintiff and Ms. Lopez declared that the ALJ's decision dated September 8, 2009, was not served at that time and that they first became aware of the decision on February 23, 2010. (Doc. 11-1, ¶3(b), Exh. 2.)

On September 16, 2010, the Appeals Council issued an order dismissing Plaintiff's request for review due to Plaintiff's untimely filing. (Doc. 11-1, ¶3(c), Exh. 3.) The Appeals Council considered the explanations provided by Plaintiff and his counsel in support of their late request for review but found that "these reasons do not provide adequate bases for the untimeliness of these actions." (Doc. 11-1, ¶3(c), Exh. 3.) Accordingly, the Appeals Council dismissed Plaintiff's request for review because there was "no good cause to extend the time for filing." (Doc. 11-1, ¶3(c), Exh. 3.)

On November 19, 2010, Plaintiff filed a complaint before this Court seeking review of the ALJ's decision. On April 1, 2011, Defendant filed a "Motion to Dismiss Plaintiff's Complaint" for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).


The Commissioner moves to dismiss this case, asserting that Plaintiff failed to exhaust his administrative remedies with respect to his claim for benefits, which is required for court review pursuant to 42 U.S.C. § 405(g). Defendant contends that in order for Plaintiff to have exhausted his administrative remedies, he must have obtained a final decision from the Appeals Council regarding his appeal of the ALJ's decision. However, the Appeals Council's dismissal of an untimely request for review is not a final decision that is subject to judicial review. This Court thus lacks jurisdiction to consider Plaintiff's complaint.

In opposition, Plaintiff argues that the Commissioner bears the burden of proof regarding the affirmative defense of failure to exhaust administrative remedies. As such, the Court is permitted to review Plaintiff's assertion of good cause for the late filing and to excuse the time limits. Thus, the Court has jurisdiction to review the Appeals Council's dismissal of Plaintiff's request for review.

A. Motion to Dismiss Standard

Federal Rule of Civil Procedure 12(b)(1) authorizes a motion to dismiss for lack of subject matter jurisdiction. "Federal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto." Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). 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 ...

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