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Rosario v. Berryhill

United States District Court, N.D. California

October 9, 2019

RODERICK DEL ROSARIO, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT RE: DKT. NO. 16

         Plaintiff Roderick Del Rosario brought this action seeking judicial review of a decision by the Social Security Administration (“SSA”) denying his claim for supplemental security income benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. § 405(g). [Docket No. 1 (Compl.).] Defendant Andrew Saul, [1] Commissioner of Social Security, now moves pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiff's complaint on the basis that it was untimely filed. [Docket Nos. 16 (“Mot.”); 18.] On June 19, 2019, the court notified the parties that it would convert Defendant's motion to dismiss into a motion for summary judgment on the issue of timeliness and ordered Plaintiff to file supplemental evidence and briefing. [Docket No. 19.] Plaintiff filed an additional declaration on July 3, 2019. [Docket No. 20 (“Waggoner Decl.”).] For the following reasons, Defendant's motion for summary judgment on the issue of timeliness is granted.

         I. BACKGROUND

         A. Factual Background and Procedural History

         On July 17, 2014, Plaintiff filed an application for supplemental security income. [Docket No. 16-2 at 4.] On November 24, 2017, Administrative Law Judge (“ALJ”) Richard P. Laverdure issued a decision partially denying Plaintiff's claim for benefits under Title XVI. Id. Plaintiff then requested review of the ALJ's decision by the Appeals Council of the Social Security Administration. The Appeals Council issued a decision dated September 21, 2018 denying Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. [Docket No. 16-3 (“Notice”).] The Notice provided information about how Plaintiff could seek court review of the decision, including the following:

         Time to File a Civil Action

• You have 60 days to file a civil action (ask for court review).
• The 60 days start the day after you receive this letter. We assume you received this letter 5 days after the date on it unless you show us that you did not receive it within the 5-day period.

         Notice at 2.

         Plaintiff filed this action on November 28, 2018, seeking judicial review of the Appeals Council's decision under 42 U.S.C. § 405(g). Defendant moves for dismissal on the basis that Plaintiff did not commence his suit within the 60-day period specified by the Notice and by 42 U.S.C. § 405(g). According to Defendant, Plaintiff is presumed to have received the Notice on September 26, 2018, five days after its issuance, and was therefore required to commence this action 60 days later, by November 26, 2018. Since Plaintiff did not file suit until two days after the deadline, Defendant contends that the action is untimely and should be barred.

         Defendant submitted a declaration and two exhibits as part of his motion. [Docket No. 16-1 (“Voegele Decl.”).] When a court considers matters outside the pleadings on a motion under Rule 12(b)(6), it must convert the motion into a Rule 56 motion for summary judgment, and in so doing, the court must give “[a]ll parties . . . a reasonable opportunity to present all the material that is pertinent to the motion.” Fed.R.Civ.P. 12(d); see also San Pedro Hotel Co., Inc. v. City of Los Angeles, 159 F.3d 470, 477 (9th Cir. 1998) (“In providing notice to the parties, ‘a district court need only apprise the parties that it will look beyond the pleadings to extrinsic evidence and give them an opportunity to supplement the record.'” (citation omitted)). Accordingly, on June 19, 2019, the court notified the parties that it would convert Defendant's motion to dismiss into a motion for summary judgment. [Docket No. 19.] The court ordered Plaintiff to file supplemental evidence to provide evidentiary support for the factual allegations in his opposition, or any other facts supporting his position. Id. Plaintiff timely submitted a declaration from his counsel in support of his positions.

         According to Plaintiffs counsel David Waggoner, Plaintiff was previously represented by a different attorney, Alexx Campbell, at Homeless Action Center. Waggoner Decl. ¶ 10. Campbell had represented Plaintiff at his hearing before the ALJ, who issued a partially favorable decision. Id. ¶ 9; see also Voegele Decl., Ex. 1. Campbell then appealed the decision to the Appeals Council on Plaintiff s behalf. Id. ¶ 10. The Appeals Counsel issued a decision upholding the ALJ's decision on September 21, 2018. Id. ¶ 11; see also Voegele Decl., Ex. 2.

         Campbell resigned from his position at HAC on October 2, 2018. Waggoner Decl. ¶ 12. He sent an email with transfer notes regarding Plaintiffs case that same day. Id. ¶¶ 12, 14. Waggoner was then assigned to Plaintiffs case. Id. ¶ 13. According to Waggoner, the case transfer notes indicated that the next step for Plaintiffs case was to write the brief requesting review of the ALJ's decision by the Appeals Council. Id. ¶¶ 13-14. Waggoner was traveling internationally at the time that Plaintiff s case was assigned to him. Waggoner Decl. ¶ 15. While traveling, Waggoner worked remotely using a laptop, but he did not have access to Plaintiffs electronic or paper file, and so he only had the information about Plaintiffs case that Campbell sent in the transfer notes email. Id. ¶¶ 15-20. Waggoner returned to his office on November 28, 2018 and at that point reviewed the September 21, 2018 Appeals Council's denial of the appeal that Campbell had filed. Id. ¶ 23. Waggoner filed the complaint in this case that same day. Id. ¶ 25.

         Waggoner's declaration is cryptic with respect to key details. For example, he only vaguely explains what information regarding case-related tasks and deadlines was contained in Campbell's case transfer email, and he does not state whether Campbell's information was correct.[2] He also does not state what further information he would have learned if he had access to the electronic or paper file while he was out of the office. Waggoner's declaration indicates that he was away from the office for approximately two months (between late September and late November 2018). Although Waggoner states that he was not expecting to receive any time-sensitive mail while he was away, he does not explain what arrangements were made, if any, to have another person check his files for him during a significant two-month absence to make sure he did not miss any deadlines on behalf of his clients.

         Waggoner states that he “believes” the September 21, 2018 denial letter from the Appeals Council arrived at the HAC office “between the time it was mailed and after Mr. Campbell's [October 2, 2018] resignation.” Waggoner Decl. at ¶ 26. The only support for this assertion is his belief that “[i]f Mr. Campbell had received the denial letter before he resigned, he would have communicated that fact to me and the corresponding time sensitive nature regarding an appeal.” Id. at ΒΆ 27. ...


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