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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 did not file the present Complaint until January 31, 2014.[2]

STANDARDS GOVERNING MOTIONS FOR SUMMARY JUDGMENT

Summary judgment is appropriate if the evidence, viewed in the light most favorable to the non-moving party, demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The party moving for summary judgment bears the initial burden of offering proof of the absence of any genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). If the moving party meets this burden, the non-moving party must designate specific facts showing that there is a genuine issue for trial. Id. at 324.

The Court must "view the facts in the light most favorable to the non-moving party and draw reasonable inferences in favor of that party." Scheuring v. Traylor Bros., Inc. , 476 F.3d 781, 784 (9th Cir. 2007). A factual dispute is "genuine" only if there is a sufficient evidentiary basis upon which a reasonable jury could return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255 (1986). A factual dispute is "material" only if it might affect the outcome of the lawsuit under governing law. Id.

DISCUSSION

The undisputed facts demonstrate that the applicable statute of limitations bars the present action as a matter of law. "The exclusive method for obtaining judicial review of a final decision of the [Social Security Administration] is set forth in [42 U.S.C. § 405(g)]." Tate v. United States , 437 F.2d 88 (9th Cir. 1971). This statute provides:

Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow.

"Mailing" is completed when the claimant receives notice of the decision. See 20 C.F.R. § 422.210(c). "[T]he date of receipt of notice... shall be presumed to be 5 days after the date of such notice, unless there is a reasonable showing to the contrary." Id . A notice sent to a claimant's representative, such as an attorney, has "the same force and effect as if it had been sent to [the claimant]." 20 C.F.R. § 416.1515(b); see Bess v. Barnhart , 337 F.3d 988, 990 (8th Cir. 2003) ("notice received by either the individual or the individual's attorney, whichever occurs first, triggers the sixty-day limitations period"). "A civil action is commenced by filing a complaint with the court." Fed.R.Civ.P. 3; see Rodgers v. Bowen , 790 F.2d 1550, 1551 (11th Cir. 1986) ("an action is commenced within the meaning of § 405(g) when a complaint is filed with the court").

In Plaintiff's case, on June 26, 2013, the Appeals Council mailed its second denial of review to Plaintiff's attorney and to Plaintiff's last known address of record. By law, it is presumed that Plaintiff's attorney (if not Plaintiff) timely received this notice on July 1, 2013. Therefore, the 60-day statute of limitations began to run on July 2, 2013, and expired on August 30, 2013, which was months before Plaintiff filed the Complaint. Hence, the statute of limitations bars the present action. See, e.g., Henderson v. Astrue, 321 Fed.App'x 624 (9th Cir. Apr. 6, 2009) (upholding dismissal of pro se Social Security complaint as untimely when the complaint was filed beyond the statutory period).

This Court may not reach the merits of Plaintiff's claim of disability, even though Plaintiff filed the Complaint just a few months after the statute of limitations expired. The statute of limitations in section 405(g) of Title 42 "must be strictly construed." Bowen v. City of New York , 476 U.S. 467, 479 (1986). Accordingly, Courts have dismissed actions filed only days after the expiration of this statute of limitations. See Tate v. United States , 437 F.2d 88 (9th Cir. 1971) (two days after); Atherton v. Colvin, 2014 WL 580167 (C.D. Cal. Feb. 12, 2014) (four days after); Davila v. Barnhart , 225 F.Supp.2d 337 (S.D.N.Y. 2002) (one day after); O'Neill v. Heckler , 579 F.Supp. 979 (E.D. Pa. 1984) (one day after); see also Twumwaa v. Colvin, 2014 WL 1928391, at *4 (S.D.N.Y. May 14, 2014) (section 405(g)'s statute of limitations "must be strictly construed because it is a condition of a sovereign immunity waiver. As the Supreme Court has counseled, it is for Congress and not the courts to modify procedural requirements for obtaining judicial review of administrative decisions. See Baldwin Cnty. Welcome Ctr. v. Brown , 466 U.S. 147, 152 (1984)").

The statute of limitations may be waived. Weinberger v. Salfi , 422 U.S. 749, 764 (1975). In the present case, however, no circumstances suggest that Defendant has waived the statute of limitations. See, e.g., Banta v. Sullivan , 925 F.2d 343, 345 (9th Cir. 1991) (Social Security complaint barred by the statute of limitations where the plaintiff "point[ed] to no evidence of waiver").

In a "rare case, " section 405(g)'s limitations period may be equitably tolled. Bowen v. City of New York , 476 U.S. at 480-81.

While in most cases the [Administration] will make the determination whether it is proper to extend the period within which review may be sought, cases may arise where the equities in favor of tolling the limitations period are "so great that deference to the agency's judgment is inappropriate." Id. at 480.

Federal courts generally have applied equitable tolling in two situations:

In the first, the plaintiffs were prevented from asserting their claims by some kind of wrongful conduct on the part of the defendant. In the second, extraordinary circumstances beyond plaintiffs' control made it impossible to file the claims on time.

Seattle Audubon Society v. Robertson , 931 F.2d 590, 595 (9th Cir. 1991).

Plaintiff has failed to demonstrate that the present case is one of those "rare" cases warranting equitable tolling. No wrongful conduct by the Administration prevented a timely filing; no extraordinary circumstances beyond Plaintiff's control prevented a timely filing. See Banta v. Sullivan , 925 F.2d at 346 (denying equitable tolling where the plaintiff pointed to no equities in favor of tolling "so great that deference to the agency's judgment is inappropriate" [citing Bowen v. City of New York ]). The possibility Plaintiff himself did not receive timely actual notice of the Appeals Council's second denial of review does not change the result herein. As previously discussed, the presumptive timely receipt of actual notice by Plaintiff's attorney triggered the 60-day period of limitations in August of 2013. Moreover, Plaintiff had an obligation to keep the Administration apprised of Plaintiff's current mailing address and current residence address. See 20 C.F.R. § 416.708(a) ("You must report to us any change in your mailing address and any change in the address where you live"). The evident failure of Plaintiff to discharge this obligation cannot furnish a basis for equitable tolling. See, e.g., Bess v. Barnhart , 337 F.3d at 990 (equitable tolling unavailable where the claimant "did not personally receive timely notice of the Appeals Council decision due to his failure to notify the [Social Security Administration] of his new address"); Middleton v. Astrue, 2013 WL 2383645, at *3-4 (W.D. Ark. May 30, 2013) (no "extraordinary circumstances" warranting equitable tolling where "the Appeals Council sent the Notice of Denial to Plaintiff at her last known address" and "Plaintiff did not report a change of address during the time period in question, " although Plaintiff apparently "had moved").[3]

Plaintiff appears to suggest in the Complaint that he has "good cause" for failing to submit "this request of Appeals Council review within the time of 60 days of determination, " citing 20 C.F.R. 416.1411. Plaintiff's suggestion is misplaced. "Good cause" is the standard under which the Appeals Council evaluates belated requests for review or requests to extend the deadline for filing a complaint in court. See 20 C.F.R. § 416.1411; 20 C.F.R. § 416.1468(b); 20 C.F.R. § 416.1482. This "good cause" standard does not apply to the Court's analysis of the statute of limitations. See, e.g., Jackson v. Astrue , 506 F.3d 1349, 1355-56 (11th Cir. 2011) ("unfortunately § 416.1411 provides for a good cause' standard only in cases where a claimant is requesting that the Appeals Council extend the deadline for filing a compliant in federal district court"); Hess v. Astrue, 2009 WL 2513452, at *3 (D. Ariz. Aug. 14, 2009) ("The Commissioner may extend the statute of limitations upon a minimal showing of hardship.'... The courts, however, follow a more stringent standard, tolling the statute of limitations only if the tolling is justified by traditional equitable tolling principles'"). The Court would lack jurisdiction to second-guess any determination by the Commissioner of an absence of "good cause" for further administrative review.[4] See Matlock v. Sullivan , 908 F.2d 492, 493-94 (9th Cir. 1990).

RECOMMENDATION

For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; (2) granting summary judgment in favor of Defendant; and (3) directing that Judgment be entered in favor of Defendant.


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