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Edmond v. Colvin

United States District Court, C.D. California

October 1, 2014

ALFREDO L. EDMOND, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Phillip S. Gutierrez, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

On January 31, 2014, Plaintiff lodged a pro se "Complaint for Review of Social Security Decision, which was stamped filed on February 5, 2014. This Complaint seeks review of the Social Security Administration's denial of Plaintiff's claim for disability benefits under Title XVI of the Social Security Act. See 42 U.S.C. § 1381 et seq.

On June 10, 2014, Defendant[1] filed a "Motion to Dismiss Plaintiff's Complaint." The Motion to Dismiss asserts that the action must be dismissed as untimely because it was not "commenced within sixty days after the mailing to [the Plaintiff] of notice of [the Administrative decision] or within such further time as the Commissioner of Social Security may allow." See 42 U.S.C. § 405(g). Accompanying the Motion to Dismiss is the Declaration of Robert Weigel ("Weigel Decl.") and Exhibits ("Exhs.").

On June 11, 2014, the Magistrate Judge filed a Minute Order inter alia stating that the Court might treat the Motion to Dismiss as a motion for summary judgment, and advising Plaintiff of the requirements of Rule 56 of the Federal Rules of Civil Procedure. See Rand v. Rowland , 154 F.3d 952 (9th Cir. 1997) (en banc), cert. denied, 527 U.S. 1035 (1999). Plaintiff filed a "Reply to Motion of Dismissal" on August 20, 2014. The Court has taken the matter under submission without oral argument.

UNCONTROVERTED FACTS

On January 13, 2011, the Administrative Law Judge issued a written decision finding Plaintiff not disabled and consequently denying Plaintiff's claim for benefits under Title XVI (Weigel Decl. p. 3; Exh. 1). This decision was mailed to Plaintiff (at a San Bernardino address) and to Plaintiff's attorney (Weigel Decl., p. 3; Exh. 1, pp. 1, 3).

By letter dated January 20, 2011, Plaintiff's attorney notified the Administration that Plaintiff's address had changed from the address in San Bernardino to an address in Pomona (Weigel Decl. p. 3; Exh. 2). On August 4, 2011, Plaintiff or a representative of Plaintiff reconfirmed with the Administration Plaintiff's new address in Pomona (Weigel Decl. p. 3; Exh. 3).

On April 26, 2012, the Appeals Council denied review (Weigel Decl. p. 3; Exh. 4). On that date, the Appeals Council mailed this denial to Plaintiff's Pomona address, as well as to Plaintiff's attorney (Weigel Decl., p. 3; Exh. 4, pp. 1, 3). On May 7, 2012, Plaintiff's attorney filed an administrative brief, again seeking Appeals Council review (Exh. 5, p. 4).

On December 19, 2012, Plaintiff's actual residence temporarily changed when he was arrested and jailed in San Bernardino (Exh. 5 to Complaint). There is no evidence that either Plaintiff or Plaintiff's attorney ever advised the Administration of this change in Plaintiff's residence.

On June 26, 2013, the Appeals Council again denied review (Weigel Decl. p. 3; Exh. 5). On that date, the Appeals Council mailed this denial to Plaintiff at the Pomona address, as well as to Plaintiff's attorney (Weigel Decl., pp. 3-4; Exh. 5, pp. 1, 3).

Neither Plaintiff nor Plaintiff's attorney subsequently sought any further relief from the Appeals Council (Weigel Decl. p. 4). Plaintiff reportedly was released from jail on November 8, 2013 (Exhibit B to Complaint). Plaintiff ...


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