(SS)Orozco v. Commissioner of Social Security ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LUZ MARIA OROZCO, Case No. 1:22-cv-01478-CDB (SS) 12 Petitioner, ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND 13 v. DIRECTING CLERK OF COURT TO ISSUE SUMMONS, SCHEDULING ORDER, AND 14 COMMISSIONER OF SOCIAL SECURITY, CONSENT OR REQUEST FOR REASSIGNMENT DOCUMENTS 15 Respondent. (ECF No. 4) 16 17 18 Petitioner Luz Maria Orozco (“Petitioner”) seeks judicial review of an administrative 19 decision of the Commissioner of Social Security denying Petitioner’s claim for disability 20 benefits under the Social Security Act. (ECF No. 1). On November 16, 2022, Petitioner filed a 21 motion to proceed in forma pauperis (“IFP”). (ECF No. 2). On November 23, 2022, the Court 22 issued a screening order dismissing Petitioner’s complaint and denying petitioner’s motion to 23 proceed IFP as the complaint did not specify the date an extension to the Appeals Council was 24 requested and what good cause, if any, Petitioner had in delaying her filing of this civil action. 25 (ECF No. 3 at 4). That same day, Petitioner filed an amended complaint. (ECF No. 4). 26 Pursuant to 28 U.S.C. §§ 1915, the Court shall again screen this order. See (ECF No. 3 at 2). 27 /// 1 Petitioner seeks review of a decision by the Commissioner of Social Security denying 2 disability benefits. The Court may have jurisdiction pursuant to 42 U.S.C. § 405(g), which 3 provides: 4 Any individual after any final decision of the Commissioner made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a 5 review of such decision by a civil action commenced within sixty days after the mailing to him of such decision or within such further time as the Commissioner 6 may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides or has his principal place of 7 business…The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the 8 Commissioner of Social Security, with or without remanding the cause for a rehearing. 9 10 Id. Except as provided by statute, “[n]o findings of fact or decision of the Commissioner shall 11 be reviewed by any person, tribunal, or governmental agency.” 42 U.S.C. § 405(h). 12 Petitioner’s amended complaint notes the Appeals Council issued a decision denying 13 plaintiff’s claim on April 22, 2022. (ECF No. 4 at 1). Petitioner asserts through counsel they 14 filed an extension of time to the Appeals Council pursuant to 20 C.F.R. § 404.982. Id. at 2. 15 Petitioner states “the law firm of Peña & Bromberg was not the attorney of record at the agency 16 level and required additional time to review the matter to ensure compliance with the Federal 17 Rules of Civil Procedures.” Id. Petitioner argues the Appeals Council found good cause for 18 the extension and on October 24, 2022, granted an additional thirty days to file this action. Id. 19 Petitioner filed an extension of time to the Appeals Council within the sixty-day period 20 set by 42 U.S.C. § 405(g). Accordingly, the Court finds it appropriate to equitably toll the 21 statute of limitations for the purpose of screening the amended complaint. E.g., Walsh v. 22 Colvin, No. 1:13-cv-00991-JLT, 2013 WL 3936905, *2 (E.D. Cal. July 30, 2013); Olvera v. 23 Colvin, No. 1:13-cv-00515-JLT, 2013 WL 2100567, *2 (E.D. Cal. May 14, 2013); Aschettino 24 v. Sullivan, 724 F. Supp. 1116, 1117-18 (W.D.N.Y. 1989). Moreover, Petitioner’s amended 25 complaint notes she resides in Lindsay, California, within the county of Tulare. (ECF No. 4 at 26 2). Therefore, the Court has jurisdiction over this action. 27 Petitioner’s amended complaint states a cognizable claim for review of the administrative 1 | Petitioner’s motion to proceed IFP (ECF No. 2) is GRANTED. The Clerk of Court is directed 2 | to issue the following: 1) a Summons; 2) the Scheduling Order; 3) the Order re Consent or 3 | Request for Reassignment; and 4) a Consent to Assignment or Request for Reassignment form. 4 | IT IS SO ORDERED. > Dated: _ December 2, 2022 | Ww KD KK 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28