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Carty v. Berryhill

United States District Court, N.D. California

November 17, 2017

FREDRICK A CARTY, Plaintiff,
v.
NANCY BERRYHILL, Defendant.

          ORDER GRANTING MOTION TO DISMISS RE: DKT. NO. 12

          JOSEPH C. SPERO CHIEF MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiff Fredrick A. Carty initiated the current action against Defendant Nancy Berryhill (the "Commissioner") seeking judicial review of a decision by Administrative Law Judge K. Kwon (the "ALJ") denying Carty‘s claim for supplemental security income ("SSI"). See generally Compl. (dkt. 1); Chung Decl. (dkt. 12-1) Ex. 1 ("ALJ Decision"[1]). In response to Carty‘s administrative appeal, the Appeals Council mailed him a letter on November 30, 2016 denying his request for further review and thus making the ALJ Decision the final decision of the Commissioner. See Chung Decl. Ex. 2 ("Appeals Council Letter"). In this letter, the Appeals Council informed Carty that he had the right to seek judicial review within sixty days of receipt of the letter and detailed the procedures for requesting an extension of this sixty-day deadline with the Appeals Council if Carty needed more time. See Id. Carty did not file a suit seeking judicial review or request an extension before that deadline. See generally Compl. Instead, Carty contends that he filed for an extension with the Appeals Council on March 3, 2017-more than ninety days after the Appeals Council denied his request for review. See Opp‘n (dkt. 16). Carty then filed a complaint for judicial review in this Court on March 8, 2017. See Compl. The Commissioner now moves to dismiss on the basis that Carty was untimely in filing his complaint and "circumstances do not warrant equitable tolling of the statute of limitations." Mot. (dkt. 12) at 3-4. For the reasons articulated below, the Court GRANTS the Commissioner‘s motion.[2]

         II. BACKGROUND

         A. Procedural History

         On January 9, 2014, Carty filed an application for SSI based on alleged impairments to his cervical spine, lumbar spine, and lower extremities with an onset date of September 3, 2003. See ALJ Decision at 1, 5. Carty‘s claim was initially denied on January 23, 2014, and again on reconsideration on April 28, 2014. See Id. at 1. On May 12, 2014, Carty filed a written request for a hearing. Id. (citing 20 C.F.R. § 416.1429). On May 4, 2015, Carty attended an administrative hearing before the ALJ where the ALJ heard from Carty, his counsel at the time, and an impartial vocational expert regarding Carty‘s impairments. Id.

         On October 27, 2015, the ALJ issued a decision denying Carty‘s disability claims after finding that he was not disabled under the five-step sequential evaluation process. See generally ALJ Decision (citing 20 C.F.R. § 416.920). At step one, the ALJ found that Carty had "not engaged in substantial gainful activity since January 9, 2014, the application date." Id. at 3. At step two, the ALJ found that Carty had "severe impairments" in the form of a "right heel calcaneal fracture; and degenerative joint disease of the cervical lumbar spines." Id. at 3. Under the third prong of the five-part analysis, the ALJ found that Carty "does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR part 404, Subpart P, Appendix 1, " considering "Listings 1.02, 1.04, 1.06, and all relevant listings." Id. The ALJ then moved to step four, assessing Carty‘s residual functional capacity[3] and finding that Carty was "unable to perform any past relevant work." Id. at 8 (citing 20 C.F.R. § 416.965). At step five, after "[c]onsidering the claimant‘s age, education, work experience, and residual functional capacity, " the ALJ found that "there are jobs that exist in significant numbers in the national economy that the claimant can perform." Id. at 8-9. Because the ALJ found that Carty was "capable of making a successful adjustment to other work that exists in significant numbers in the national economy, " the ALJ ruled that a "finding of 'not disabled‘ is therefore appropriate under the framework of the above-cited rules." Id. at 9.

         Following the ALJ‘s denial of Carty‘s claims, Carty filed an administrative appeal to the Appeals Council requesting review of the ALJ‘s decision. On November 30, 2016, the Appeals Council mailed Carty a letter denying his request for appeal. See Appeals Council Letter. In the letter, the Appeals Council explained that it "found no reason under [its] rules to review the Administrative Law Judge‘s decision, "[4] meaning "the Administrative Law Judge‘s decision is the final decision of the Commissioner of Social Security in [Carty‘s] case." Id. at 1. The letter stated that if Carty disagreed with the Commissioner‘s decision, he could file a civil case seeking judicial review of the decision, but that in the absence of judicial review, "the Administrative Law Judge‘s decision will be a final decision that can be changed only under special rules." Id. at 2. The Appeals Council Letter also explained that there is a sixty-day window to file a civil action after receipt of the letter, which is presumed to begin five days after the November 30, 2016 mailing date absent a showing by Carty that he did not actually receive the letter within five days of mailing. Id. The Appeals Council gave notice to Carty that if he "cannot file for court review within 60 days, [he] may ask the Appeals Council to extend [his] time to file, " but noted that Carty "must have a good reason for waiting more than 60 days to ask for court review, " and "must make the request in writing, " stating his reasons for seeking an extension of the sixty-day period. Id. at 3. The Appeals Council told Carty that to file an extension request, he "must mail [his] request for more time to the Appeals Council at the address shown at the top of this notice." Id. (emphasis added).

         February 3, 2017 was the sixty-fifth day from the mailing of the Appeals Council letter, and therefore the last day Carty could timely file. See id; Zieman Decl. (dkt. 16-1) ¶ 1; Mot. at 4. On March 3, 2017, Carty purportedly faxed an extension request to the Appeals Council seeking additional time to file his civil case. See Zeiman Decl. Ex. 1 (the "Extension Request"). On March 8, 2017, Carty initiated this action against the Commissioner seeking judicial review of the Commissioner‘s final decision. In his complaint, Carty alleges that he was adversely affected by the final decision of the Commissioner, that he has exhausted all administrative remedies in this matter, and that this Court "has jurisdiction pursuant to Title 41 U.S.C. § 405(g)." Compl. ¶¶ 2-3 (sic, presumably intended as 42 U.S.C. § 405(g)).

         B. The Parties' Arguments

         1. The Commissioner's Motion to Dismiss and Supporting Evidence

         a. Motion to Dismiss

         On June 20, 2017, the Commissioner filed the present Rule 12(b)(1) motion to dismiss Carty‘s complaint "on the grounds that [Carty‘s] claims are untimely." Mot. at 1. As part of her motion, the Commissioner attaches a declaration of Nancy Chung, which includes as exhibits copies of the ALJ Decision and the Appeals Council Letter. See Chung Decl.; ALJ Decision; Appeals Council Letter. The Commissioner urges the Court to dismiss Carty‘s complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of subject matter jurisdiction. See Mot. at 1; Fed.R.Civ.P. 12(b)(1).

         The Commissioner raises two main arguments for dismissal. See Mot. at 3-4. First, the Commissioner contends that "there is no waiver of sovereign immunity because Plaintiffs complaint is untimely." Id. at 3. (capitalization altered throughout). The Commissioner explains that under the doctrine of sovereign immunity, the United States is immune from suit unless it has consented to being sued, noting that the conditions of any such waiver of sovereign immunity must be construed strictly. Id. (citing Hercules, Inc. v. United States, 516 U.S. 417, 422 (1996); Bowen v. City of New York, 476 U.S. 467, 479 (1986)). The Commissioner emphasizes that, under the relevant statutory framework, judicial review of final social security decisions is an exclusive remedy, and that the sixty-day period for filing for judicial review serves as a statute of limitations for such claims. Id. (citing 42 U.S.C. § 405(g), (h)). Because Carty "did not file the Complaint in this matter until March 8, 2017, after the 65-day period of limitations had lapsed, " the Commissioner contends that Carty‘s "complaint was untimely and should be dismissed." Id. at 4.

         Second, the Commissioner argues that the circumstances of this case "do not warrant equitable tolling of the statute of limitations." Id. (capitalization altered throughout). The Commissioner contends that "[a]lthough the statute of limitations established by Section 205(g) of the Act [codified at 42 U.S.C. § 405(g)] is subject to equitable tolling, a plaintiff 'faces formidable obstacles in establishing that the government should be estopped from asserting the statute-of-limitations defense.‘" Id. (quoting Vernon v. Heckler, 811 F.2d 1274, 1277 (9th Cir. 1987)). The Commissioner asserts that she is "charged with determining whether to extend the 60-day period, and only 'where the equities in favor of tolling the limitations period are so great that deference to the agency‘s judgment is inappropriate‘ should the courts extend the period." Id. (quoting Bowen, 476 U.S. at 480). The Commissioner contends that Carty has not demonstrated extraordinary circumstances sufficient to warrant equitable tolling.

         b. Chung Declaration and Attachments

         In support of the Commissioner‘s motion, Nancy Chung submits a declaration describing the normal process for judicial review of social security denials, her role in "processing of claims under Title XVI of the Social Security Act, as amended, whenever a civil action has been filed in the State of California, " as well as the information available to her regarding Carty‘s case file. See Chung Decl. In her declaration, Chung indicates that she works for the Office of Appellate Operations within the Office of Disability Adjudication and Review at the Social Security Administration ("SSA"), which "provides professional and technical advice to the Deputy Commissioner and Administrative Appeals Judges of the Appeals Council in the processing of cases in which a civil action has been filed." Id. ¶ 2. Chung also states that "[o]ne function of the Appeals Council is to act on requests for review of hearing decisions made by Administrative Law Judges and to either grant, deny or dismiss any such request." Id. Chung notes that the Appeals Council also "acts on requests for an extension of the period of time to file a civil action as specified in 42 U.S.C. 405(g) and in 20 CFR 422.210." Id.

         Based on her review of Carty‘s file, Chung states that on "November 30, 2016, the Appeals Council sent, by mail . . . with a copy to the representative, notice of its action on the plaintiffs request for review and of the right to commence a civil action within sixty (60) days from the date of receipt." Chung Decl. ¶ 3(a) (citing Appeals Council Letter). Chung notes that she is "not aware of any request for an extension of time to file a civil action as specified in said notice." Id. ¶ 3(b). In support of her declaration, Chung attaches copies of the ALJ Decision and the Appeals Council Letter as exhibits. See ALJ Decision; Appeals Council Letter.

         2. Carty's Opposition and ...


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