The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Defendant seeks dismissal of the complaint pursuant to Fed. R. Civ. P. 12(b)(6), as untimely filed. Plaintiff has filed an opposition, to which defendant has filed a reply. Having reviewed the papers without oral argument, the court now issues the following decision.
Plaintiff filed an appeal of an ALJ's adverse decision which was issued on March 9, 2010. (Weigel Decl., Ex. 1.) On February 5, 2011, the Appeals Council issued its decision denying review. (Id., Ex. 2.) This decision, notifying plaintiff of her right to file a civil action within sixty days after she received the notice, that the clock started to run the day after she received the notice, and that she could request an extension of time to file her complaint, was mailed to plaintiff at her address of record. (Id.) Plaintiff did not file a request for extension of time. (Weigel Decl., ¶ (3)(b).) Plaintiff filed this action on July 13, 2011.
I. LEGAL STANDARD FOR MOTION TO DISMISS
In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action"; it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 (2007). "The pleading must contain something more...than...a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S. Ct. 1848, 1850 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct. 1843, 1849, reh'g denied, 396 U.S. 869, 90 S. Ct. 35 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 803 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2137 (1992). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596 (1972).
The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F. 2d 1446, 1448 (9th Cir. 1987).
The Social Security Act provides for judicial review of final decisions of the
Commissioner of Social Security. 42. U.S.C. § 405(g). Section 405(g) provides that review of a final decision may be obtained by filing a civil action within sixty days after the notice of such decision is mailed to the party, or within further time as permitted by the Commissioner. 20 C.F.R. § 422.210(c) states in part that a civil action "must be instituted within 60 days after the Appeals Council's notice of denial of request for review of the administrative law judge's decision or notice of the decision by the Appeals Council is received by the individual ...." This regulation further provides, "the date of receipt of notice of denial of request for review of the administrative law judge's decision or notice of the decision by the Appeals Council shall be presumed to be 5 days after the date of such notice, unless there is a reasonable showing to the contrary." Id.; McCall v. Bowen, 832 F.2d 862 (5th Cir.1987).
If plaintiff successfully rebuts the presumption of presumed receipt, the burden is then placed upon the Secretary to establish that plaintiff received actual notice. Fenneken v. Commissioner, 2011 WL 4558308, *3 (Sep. 30, 2011) ...