United States District Court, N.D. California
ORDER GRANTING MOTION TO DISMISS RE: DKT. NO.
C. SPERO CHIEF MAGISTRATE JUDGE
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"). 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
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
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 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.
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, " 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.
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)).
The Parties' Arguments
The Commissioner's Motion to Dismiss and Supporting
Motion to Dismiss
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).
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.
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.
Chung Declaration and Attachments
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."
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.
Carty's Opposition and ...