The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
ORDER; FINDINGS AND RECOMMENDATIONS
Pending before the court is defendant's motion for summary judgment, filed January 18, 2012, which had been converted from a motion to dismiss by order of April 2, 2012. That order directed plaintiff to file evidence in support of her opposition, and permitted defendant to file further evidence. Having now reviewed the motion, opposition, replies, and evidence submitted by plaintiff on April 30, 2012, the court issues the following Order; Findings and Recommendations.
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.
Upon review of defendant's motion to dismiss the complaint as untimely filed, the undersigned found that pursuant to the briefing submitted at that time and pertinent legal authority, facts outside the complaint were essential to the determination of whether plaintiff is barred by the statute of limitations. The court directed plaintiff to submit admissible evidence in support of her position that she did not receive notice of the Appeals Council's decision, when she finally received notice, and any other evidence relevant to equitable tolling. Plaintiff was informed that such evidence must be in the form of declaration(s) under penalty of perjury. Plaintiff was also provided the legal standards for summary judgment. Plaintiff submitted a filing on April 30, 2012. Defendant has elected not to supplement his original briefing.
I. SUMMARY JUDGMENT STANDARDS UNDER RULE 56
In the court's April 2, 2012 order, the motion to dismiss made pursuant to Fed. R. Civ. P. 12(b)(6)*fn1 was converted into one for summary judgment because the court needed to access facts outside the record. The issue of whether the non-jurisdictional statute of limitations for filing in district court of a review of a Social Security final decision is adjudicated under an ordinary summary judgment "material factual issue" standard, or one akin to a Rule 12(b)(1) weighing standard is unclear. If the timeliness issue is truly non-jurisdictional, the ordinary summary judgment standard would be used. However, such a standard would conflict with a summary judgment review of the merits of an administrative decision which is based upon substantial evidence, not on a material factual issue standard. The undersigned will utilize the ordinary summary judgment standard as that standard is more favorable to plaintiff.*fn2
Summary judgment is appropriate when it is demonstrated that there exists "no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).
Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986) (quoting Fed. R. Civ. P. 56(c)). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. See id. at 322, 106 S. Ct. at 2552. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id. at 323, 106 S. Ct. at 2553.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11, 106 S. Ct. at 1356 n. 11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987).
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 631. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356 (quoting Fed. R. Civ. P. 56(e) advisory committee's note on 1963 amendments).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. See Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. See Matsushita, 475 U.S. at 587, 106 S. Ct. at 1356. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material ...