United States District Court, E.D. California
KATHERINE E. WILLIAMSON, Plaintiff,
ANDREW SAUL, Commissioner of Social Security, Defendant.
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE
filed for benefits under Title II of the Social Security Act
on August 12, 2014. (ECF No. 8-1 at 8.) On June 15, 2017, the
Administrative Law Judge (ALJ) issued a decision finding
plaintiff not disabled through her date last insured.
(Id. at 8-17.) On June 18, 2018, the Appeals Council
denied plaintiff's request to review the ALJ's
decision, making it the final decision of the Commissioner.
(ECF No. 8-1 at 23-25.) Plaintiff filed this federal action
on August 23, 2018. (ECF No. 1.)
seeks dismissal of the complaint, arguing that it was filed
one day late under the applicable federal statute, 42 U.S.C.
§ 405(g). For the reasons discussed below, the
undersigned will recommend that defendant's motion be
order to survive dismissal for failure to state a claim
pursuant to Rule 12(b)(6), a complaint must contain more than
“naked assertions, ” “labels and
conclusions” or “a formulaic recitation of the
elements of a cause of action.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555-557 (2007). In other
words, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements do
not suffice.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). When considering whether a complaint states a
claim upon which relief can be granted, the court must accept
the allegations as true, Erickson v. Pardus, 127
S.Ct. 2197, 2200 (2007), and construe the complaint in the
light most favorable to the plaintiff, see Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974).
ruling on a motion to dismiss, the court may consider facts
established by exhibits attached to the complaint.
Durning v. First Boston Corp., 815 F.2d 1265, 1267
(9th Cir. 1987). The court may also consider “documents
whose contents are alleged in a complaint and whose
authenticity no party questions, but which are not physically
attached to the pleading[.]” Branch v.
Tunnell, 14 F.3d 449, 454 (9th Cir. 1994), overruled on
other grounds by Gailbraith v. County of Santa
Clara, 307 F.3d 1119, 1127 (9th Cir. 2002); see also
Steckman v. Hart Brewing Co., Inc., 143 F.3d 1293,
1295-96 (9th Cir. 1998) (on Rule 12(b)(6) motion, court is
“not required to accept as true conclusory allegations
which are contradicted by documents referred to in the
complaint.”) The court may also consider facts which
may be judicially noticed, Mullis v. United States
Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir. 1987); and
matters of public record, including pleadings, orders, and
other papers filed with the court, Mack v. South Bay Beer
Distributors, 798 F.2d 1279, 1282 (9th Cir. 1986).
defendant contends that dismissal is required because
plaintiff failed to file her complaint within the 60-day
statute of limitations provided by 42 U.S.C. § 405(g).
Although the statute-of-limitations defense is usually raised
in an answer to a complaint, “it may be raised in a
motion to dismiss when the running of the statute is apparent
from the face of the complaint.” See Vernon v.
Heckler, 811 F.2d 1274, 1278 (9th Cir.1987) (citing
Conerly v. Westinghouse Elec. Corp., 623 F.2d 117,
119 (9th Cir. 1980)). A complaint brought pursuant to 42
U.S.C. § 405(g) may be dismissed on a 12(b)(6) motion if
it appears beyond doubt from the face of the complaint
“that the plaintiff can prove no set of facts that
would establish the timeliness of the claim.”
Supermail Cargo, Inc. v. United States, 68 F.3d
1204, 1207 (9th Cir. 1995)).
18, 2018, the Appeals Council issued a Notice to plaintiff
denying her request for review and explaining how to file a
civil action. (ECF No. 8-1 at 23-24.) The Notice provided the
following guidance as to timing:
to File a Civil Action
• You have 60 days to file a civil action (ask for court
• The 60 days start the day after you receive this
letter. We assume you receive the letter 5 days after the
date on it unless you show us that you did not receive it
within the 5-day period.
• If you cannot file for court review within 60 days,
you may ask the Appeals Council to extend your time to file.
You must have a good reason for waiting more than 60 days to
ask for court review. You must make the ...