(SS) Aleatrice Thomas v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ALEATRICE THOMAS, Case No. 1:20-cv-01723-SAB 10 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING DISMISSING 11 v. PLAINTIFF’S SOCIAL SECURITY APPEAL AS UNTIMELY 12 COMMISSIONER OF SOCIAL SECURITY, (ECF No. 1) 13 Defendant. OBJECTIONS DUE WITHIN THIRTY 14 DAYS 15 16 Aleatrice Thomas (“Plaintiff”) proceeding pro se and in forma pauperis, filed this action 17 seeking judicial review of the denial of disability benefits pursuant to the Social Security Act. 18 Currently before the Court is Plaintiff’s complaint, filed on December 7, 2020. The matter was 19 referred to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 I. 21 SCREENING STANDARD 22 Notwithstanding any filing fee, the court shall dismiss a case if at any time the Court 23 determines that the complaint “(i) is frivolous or malicious; (ii) fails to state a claim on which 24 relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from 25 such relief.” 28 U.S.C. § 1915(e)(2); see Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) 26 (section 1915(e) applies to all in forma pauperis complaints, not just those filed by prisoners); 27 Calhoun v. Stahl, 254 F.3d 845 (9th Cir. 2001) (dismissal required of in forma pauperis proceedings which seek monetary relief from immune defendants); Cato v. United States, 70 1 F.3d 1103, 1106 (9th Cir. 1995) (district court has discretion to dismiss in forma pauperis 2 complaint under 28 U.S.C. § 1915(e)); Barren v. Harrington, 152 F.3d 1193 (9th Cir. 1998) 3 (affirming sua sponte dismissal for failure to state a claim). The Court exercises its discretion to 4 screen the plaintiff’s complaint in this action to determine if it “(i) is frivolous or malicious; (ii) 5 fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a 6 defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). 7 In determining whether a complaint fails to state a claim, the Court uses the same 8 pleading standard used under Federal Rule of Civil Procedure 8(a). A complaint must contain “a 9 short and plain statement of the claim showing that the pleader is entitled to relief. . . .” Fed. R. 10 Civ. P. 8(a)(2). Detailed factual allegations are not required, but “[t]hreadbare recitals of the 11 elements of a cause of action, supported by mere conclusory statements, do not suffice.” 12 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 13 544, 555 (2007)). 14 In reviewing the pro se complaint, the Court is to liberally construe the pleadings and 15 accept as true all factual allegations contained in the complaint. Erickson v. Pardus, 551 U.S. 89, 16 94 (2007). Although a court must accept as true all factual allegations contained in a complaint, 17 a court need not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 678. “[A] 18 complaint [that] pleads facts that are ‘merely consistent with’ a defendant’s liability . . . ‘stops 19 short of the line between possibility and plausibility of entitlement to relief.’” Id. (quoting 20 Twombly, 550 U.S. at 557). Therefore, the complaint must contain sufficient factual content for 21 the court to draw the reasonable conclusion that the defendant is liable for the misconduct 22 alleged. Iqbal, 556 U.S. at 678. 23 II. 24 DISCUSSION 25 Plaintiff received notice that her Social Security claim had been denied on September 20, 26 2020. (Compl. 3,1 ECF No. 1.) The complaint states she has a bulging disc in her L4 and a 27 1 All references to pagination of specific documents pertain to those as indicated on the upper right corners via the 1 deteriorating disc in her back, carpal tunnel in both wrists and arthritis in her back. (Id. at 4.) 2 She asks how that is not a disability. (Id.) She contends that the Commissioner’s decision was 3 based on legal error because her injuries are permanent. (Id.) Attached to the complaint is the 4 appeals counsel decision denying her appeal on reconsideration, dated September 20, 2020. (Id. 5 at 6-9.) 6 Generally, the United States and its agencies are entitled to sovereign immunity from suit 7 unless Congress has expressly waived immunity. F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); 8 Kaiser v. Blue Cross of California, 347 F.3d 1107, 1117 (9th Cir. 2003); Hodge v. Dalton, 107 9 F.3d 705, 707 (9th Cir. 1997). “Any waiver of immunity must be ‘unequivocally expressed,’ and 10 any limitations and conditions upon the waiver ‘must be strictly observed and exceptions thereto 11 are not to be implied.’ ” Hodge, 107 F.3d at 707 (quoting Lehman v. Nakshian, 453 U.S. 156, 12 160-61 (1981).) 13 In the Social Security Act, the United States has waived sovereign immunity only for 14 limited judicial review of the Social Security Administration’s final decisions. Mathews v. 15 Eldridge, 424 U.S. 319, 327 (1976). Under 42 U.S.C. § 405(g), “[a]ny individual, after any final 16 decision of the Commissioner of Social Security made after a hearing to which he was a party, 17 irrespective of the amount in controversy, may obtain a review of such decision by a civil action 18 commenced within sixty days after the mailing to him of notice of such decision or within such 19 further time as the Commissioner of Social Security may allow.” Congress has strictly limited 20 the Court’s jurisdiction of over Social Security actions. 21 No findings of fact or decision of the Commissioner of Social Security shall be reviewed by any person, tribunal, or governmental agency except as herein 22 provided. No action against the United States, the Commissioner of Social Security, or any officer or employee thereof shall be brought under section 1331 23 or 1346 of Title 28 to recover on any claim arising under this subchapter. 24 42 U.S.C. § 405(h). 25 In order for this Court to consider Plaintiff’s Social Security appeal, she must 26 demonstrate that she has complied with the requirements of Section 405(g), including that she 27 has received a final decision and that this action is filed “within sixty days after the mailing to 1 To comply with 405(g) an individual must exhaust administrative remedies in order to 2 challenge the denial of Social Security benefits. This means that before challenging a denial of 3 benefits or the amount received, a claimant must file for reconsideration of that decision with the 4 Social Security Administration. 20 C.F.R. §§ 404.905, 404.909. If an adverse decision is 5 rendered, an individual may request that an administrative law judge (“ALJ”) hold a hearing. 20 6 C.F.R. § 404.929. If the ALJ issues an adverse decision, an appeal may be filed with the 7 Appeals Council. 20 C.F.R. § 404.955. Any appeal to the Appeals Council must be filed within 8 sixty days of the ALJ’s decision. 20 C.F.R. § 404.968. Once the Appeals Council issues its 9 decision, a claimant can file a complaint in the United States District Court, but this complaint 10 must be filed within sixty days of the Appeals Council’s order. 42 U.S.C. § 405(g). 11 In order to seek judicial review of a denial of Social Security benefits and/or disability 12 benefits, an individual must have followed the appeals process outlined above including filing a 13 complaint in the United States District Court within sixty days of receiving an adverse 14 determination from the Appeals Council. Here, it is apparent on the face of Plaintiff’s complaint 15 that she did not file her appeal within the time frame provided by section 405(g). 16 On January 13, 2021, an order issued requiring Plaintiff to show cause why this action 17 should not be dismissed as being untimely filed. (ECF No. 6.) The order advised Plaintiff that 18 the sixty day filing period may be subject to equitable tolling and provided that she was to show 19 cause why this action should not be dismissed within fourteen days. (Id. at 2, 3.) More than 20 fourteen days have passed and Plaintiff has not responded to the January 13, 2021 order. 21 Plaintiff’s Social Security application was denied on reconsideration on September 20, 22 2020, and she was advised in the notice that she had sixty days to file a civil action requesting 23 court review. (ECF No. 1 at 6-7.) Here, Plaintiff states in her complaint that she received the 24 notice that the Commissioner’s decision was final on September 20, 2020. (Compl. at 3.) 25 Plaintiff did not file her complaint in this action until December 7, 2020, seventy-eight days after 26 the date on the notice. 27 Plaintiff’s Social Security application was denied on reconsideration on September 20, 1 court review. (ECF No. 1 at 6-7.) Under the Social Security regulations, “ ‘[m]ailing is 2 construed as the date of receipt of the notice, which is presumed to occur five days after the date 3 of the notice[,]” Vernon v. Heckler, 811 F.2d 1274, 1277 (9th Cir. 1987) (quoting 20 C.F.R. § 4 422.210(c)), and Plaintiff was advised of such in the Appeals Council’s September 20, 2020 5 notice. The time frame to file any appeal of the final decision “may be extended by the Appeals 6 Council upon a showing of good cause.” 20 C.F.R. § 422.210(c). The September 20, 2020 7 notice advised Plaintiff that if she was unable to file an appeal within sixty days she could ask 8 the Appeals Council to extend her time to file. (ECF No. 1 at 7.) 9 Plaintiff states in her complaint that she received the notice that the Commissioner’s 10 decision was final on September 20, 2020. (Compl. at 3.) Allowing for the five days from the 11 date of the notice for mailing, Plaintiff was required to file her complaint in the district court on 12 or before November 24, 2020. Plaintiff did not file her complaint in this action until December 13 7, 2020, thirteen days after the limitations period had expired and has not alleged that she 14 received an extension of time from the Appeals Council to seek judicial review of the final 15 decision. 16 Plaintiff was ordered to show cause why this action should not be dismissed as untimely 17 filed within fourteen days of January 13, 2021, and has not responded to the January 13, 2021 18 order. Accordingly, it is apparent on the face of Plaintiff’s complaint that this action was 19 untimely filed and should be dismissed. Plaintiff has not demonstrated that equitable tolling 20 would apply to extend her time to file a complaint in the district court. The Court recommends 21 that this action be dismissed as untimely. 22 III. 23 CONCLUSION AND ORDER 24 For the reasons discussed, Plaintiff’s complaint was untimely as it was not filed within 25 sixty days of the Appeals Council’s notice that her claim had been denied upon reconsideration 26 as required by 20 C.F.R. § 404.968. Plaintiff has not demonstrated that equitable tolling would 27 apply to extend the deadline to file an appeal of the final decision in the district court. 1 Based on the foregoing, it is HEREBY RECOMMENDED that this action be 2 | DISMISSED as untimely filed. 3 This findings and recommendations is submitted to the district judge assigned to this 4 | action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within thirty (3) 5 | days of service of this recommendation, Plaintiff may file written objections to this findings and 6 | recommendations with the court. Such a document should be captioned “Objections to 7 | Magistrate Judge’s Findings and Recommendations.” The district judge will review the 8 | magistrate judge’s findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). 9 | Plaintiff is advised that failure to file objections within the specified time may result in the 10 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing 11 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 12 3 IT IS SO ORDERED. FA. ee 14 | Dated: _ February 3, 2021 Is UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28