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Scott v. Colvin

United States District Court, N.D. California, Eureka Division

May 14, 2014

DERRICK DWAYNE SCOTT, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER RE MOTION TO DISMISS Doc. No. 14

NANDOR J. VADAS, Magistrate Judge.

INTRODUCTION

Derrick Dwayne Scott seeks judicial review of an administrative law judge ("ALJ") decision denying his claim for benefits under Title XVI of the Social Security Act. Scott's request for review was denied by the Appeals Council. (Weigel Decl. ¶ 3(a)). The decision thus became the "final decision" of the Commissioner of Social Security, which this court may review. See 42 U.S.C. § 405(g), 1383(c)(3). Both parties have consented to the jurisdiction of a magistrate judge. (Docs. 5, 11.) The Court may therefore decide the motion to dismiss now pending before it. See 28 U.S.C. § 636(c).

For the reasons stated below, the Court will deny Defendant's motion to dismiss and order Defendant to file an answer.

PROCEDURAL HISTORY

On October 26, 2011, an ALJ issued a decision denying Plaintiff's claim for benefits under Title XVI, and mailed a copy of the decision to Plaintiff. (Weigel Decl., Exh. 1.) Plaintiff requested review of the decision. On February 22, 2013, the Appeals Counsel sent, by mail, both Plaintiff and his counsel notice of its action on Plaintiff's request for review and of the right to commence a civil action within sixty days from the date of receipt. (Weigel Decl., Exh. 2.)

On April 19, 2013, Plaintiff requested an extension of time to file a civil action, as specified in the notice of action and in section 205(g) of the Social Security Act, as amended (42 U.S.C. § 405(g)) and in section 422.10 of Social Security Administration Regulations no. 22 (20 C.F.R. 422.210) (Weigel Decl., Exh. 3.) On May 2, 2013, the Appeals Counsel granted Plaintiff's request and extended the time within which Plaintiff could file a civil action by 30 days from the date of receipt of the letter. (Weigel Decl., Exh. 4.)

Plaintiff filed the complaint in this action on July 30, 2013. (Doc. 1.) Defendant filed the present motion to dismiss on March 6, 2014. (Doc. 14.) Plaintiff filed his response to the motion on March 7, 2014. (Doc. 17.)

DISCUSSION

Defendant moves to dismiss this case pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that the complaint was untimely filed. Defendant argues that under the extension of time granted by the Appeals Counsel, the deadline for filing the present action was June 6, 2013. Plaintiff filed this action some 46 days later, on July 30, 2014.

Judicial review of final decisions on claims arising under Title XVI of the Social Security Act is provided by 42 U.S.C. § 1383(c)(3), which incorporates § 405(g) and (h). The exclusive remedy provided by § 405(g) is as follows:

(g) Any individual, after any final decision of the Commissioner made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain review of such decision by a civil action commenced within 60 days after the mailing to him of notice of such decision or within such further time as the Commissioner may allow....
(h) The findings and decision of the Commissioner after a hearing shall be binding upon all individuals who were parties to such a hearing. No findings of fact or decision of the Commissioner shall be reviewed by any person, tribunal, or government agency except as herein provided. 42 U.S.C. § 405(g).

The Commissioner has interpreted "mailing" to mean the date of receipt by the claimant. See 20 C.F.R. § 422.210(c). The date of receipt is presumed to be five days after the date of such a notice, ...


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