Olvera v. Commissioner of Social Security

Filing 7

ORDER Directing Clerk To Issue Summons, ORDER Directing United States Marshal For Service Of The First Amended Complaint (Doc. 6 ), signed by Magistrate Judge Jennifer L. Thurston on 5/13/2013. (Attachments: # 1 First Amended Complaint, # 2 USM Social Security Instructions)(Fahrney, E)

Case 1:13-cv-00515-JLT Document 6 Filed 05/10/13 Page 1 of 4

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Brian C. Shapiro
Attorney at Law: 192789
Law Offices of Lawrence D. Rohlfing
12631 East Imperial Highway, Suite C-115
Santa Fe Springs, CA 90670
Tel.: [phone]
Fax: [phone]
E-mail [e-mail]

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Attorneys for Plaintiff Daniel Hernandez Olvera
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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DANIEL HERNANDEZ OLVERA,
Plaintiff,

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vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

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Defendant.

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Case No: 1:13-CV-00515 JTL
FIRST AMENDED COMPLAINT
FOR REVIEW OF
FINAL DECISION OF THE
COMMISSIONER OF SOCIAL
SECURITY

Plaintiff Daniel Hernandez Olvera hereby alleges a claim for relief as
follows:
1. Daniel Hernandez Olvera is a competent adult residing within the
jurisdictional boundaries of this Court in Bakersfield, CA.

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2. Plaintiff's Social Security Number is XXX-XX-7835.

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3. This action arises under the provisions of the Social Security Act, Title II.

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This court has jurisdiction to review the decision of defendant herein pursuant to

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42 U.S.C. §§ 405(g) and 1383(c).

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Case 1:13-cv-00515-JLT Document 6 Filed 05/10/13 Page 2 of 4

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4. The Social Security Act provides that an individual should be considered

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disabled if that person is unable to engage in any substantial gainful activity by

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reason of any medically determinable physical or mental impairment which can be

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expected to result in death or which has lasted or can be expected to last for a

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continuous period of not less than twelve months.

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5. Daniel Hernandez Olvera is, and at all times relevant to this action,
disabled as that term is defined in the Social Security Act.
6. Daniel Hernandez Olvera filed concurrent applications for disability
insurance benefits and supplemental security income alleging disability in

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accordance with the legal requirements of the Social Security Act. The

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Commissioner denied the applications initially and upon reconsideration.

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7. Daniel Hernandez Olvera timely requested and participated in a hearing

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before an administrative law judge. The ALJ issued a decision denying plaintiff's

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claim for benefits.

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8. Thereafter, Daniel Hernandez Olvera timely filed a request for review of

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the ALJ's decision with the Appeals Council. On January 25, 2013, the Appeals

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Council denied the request for review, at which time the ALJ's decision became the

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final decision of the Commissioner. On March 14, 2013, plaintiff's counsel

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requested an extension of time in which to commence a civil action, Exhibit 1.

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9. A party may obtain judicial review of the Commissioner's final decision

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by commencing a civil action in federal court "within sixty days after the mailing

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to him of notice of such decision or within such further time as the Secretary may

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allow." 42 U.S.C. § 405(g); 20 C.F.R. § 404.981.

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10. Although the Appeals Council has yet to act on the request for an

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extension, this court has jurisdiction because the sixty-day time limit is not

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jurisdictional, but is instead a statute of limitation which the Secretary may waive.
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Case 1:13-cv-00515-JLT Document 6 Filed 05/10/13 Page 3 of 4

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Banta v. Sullivan, 925 F.2d 343, 345 (9th Cir.1991) citing Weinberger v. Salfi, 422

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U.S. 749, 763-64, 95 S.Ct. 2457, 2466, 45 L.Ed.2d 522, 537-38 (1975).

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11. The Appeals Council has not indicated whether the it will grant the

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request for an extension, however, the failure to file within the sixty-day time limit

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is an affirmative defense, which "is properly raised in a responsive pleading."

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Vernon v. Heckler, 811 F.2d 1274, 1278 (9th Cir.1987) (citing Federal Rule of

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Civil Procedure 8(c)), therefore, this complaint is properly before the Court.

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11. Pursuant to Social Security Act, Daniel Hernandez Olvera files this

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action to seek judicial review of the Commissioner's decision and requests that this

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court reverse that decision, or in the alternative, to remand this matter for a new

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hearing on the following grounds:

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(a) There is no substantial medical or vocational evidence in the record to

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support the legal conclusion of plaintiff is not disabled within the meaning of the

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Act;

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(b) There is no substantial evidence in the record to support the

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Commissioner's finding that plaintiff could perform any substantial gainful

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activity;

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(c) The evidence in the record supports only the finding that plaintiff is

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disabled and has been continuously disabled as that term is defined in the Social

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Security Act at all times relevant to plaintiff's application;

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(d) New and material evidence for which good cause exists for failure to

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submit earlier exists and warrants a remand of this matter for further proceedings.

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WHEREFORE, plaintiff Daniel Hernandez Olvera prays for judgment

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against the Commissioner of Social Security as follows:
1. That this court reverse and set aside the decision of defendant denying
Daniel Hernandez Olvera's claim for disability benefits;
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Case 1:13-cv-00515-JLT Document 6 Filed 05/10/13 Page 4 of 4

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2. That this court find that plaintiff Daniel Hernandez Olvera has been

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disabled at all times relevant to the application for a period of disability and

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disability insurance and Supplemental Security Income benefits;

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3. In the alternative, that this court remand the matter for a new hearing or
new proceedings as appropriate;

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4. For all costs of suit incurred herein;

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5. For reasonable attorney's fees under the Equal Access to Justice Act; and

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6. For such other and further relief as the court may deem just and proper.

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DATE: May 9, 2013

Respectfully submitted,
LAW OFFICES OF LAWRENCE D. ROHLFING
/s/ Brian C. Shapiro
BY: _________________________
Brian C. Shapiro
Attorney for plaintiff DANIEL HERNANDEZ
OLVERA

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LAW OFFICES OF

AVAILABLE
Case 1:13-cv-00515-JLT DocumentROHLFING
LAWRENCE D. 6-1 Filed 05/10/13 Page 1 of 1 BY APPOINTMENT AT:

LAWRENCE D. ROHLFING
MARC V. KALAGIAN
____________

DENISE BOURGEOIS HALEY
YOUNG CHO
BRIAN C. SHAPIRO, M.A.
LAURA LACKEY-KRANK
STEVEN G. ROSALES
CYRUS SAFA
VIJAY J. PATEL
____________

12631 East Imperial Highway, Suite C-115
Santa Fe Springs, CA 90670

TELEPHONE [phone]
FACSIMILE [phone]
E-MAIL [e-mail]
http://www.californiasocialsecurityattorney.com

March 14, 2013

RONALD L. SIEVERS, of counsel
BARBARA GEDANKE, retired

Rohlfing & Kalagian, LLP
211 East Ocean Boulevard, Suite 420
Long Beach, CA 90802
TELEPHONE: ([phone]
FACSIMILE: [phone]
[e-mail]
http://rksslaw.com
Law Offices of Lawrence D. Rohlfing
525 B Street, 15th Floor
San Diego, California 92101
TELEPHONE: [phone]
FACSIMILE: [phone]
PLEASE RESPOND TO
SANTA FE SPRINGS

Appeals Council, Branch 3
Office of Disability Adjudication and Review
5107 Leesburg Pike, Suite 1305
Falls Church, VA 22041-3255

SENT BY FACSIMILE TRANSMISSION TO [phone]
Re: Daniel Hernandez Olvera
SSN:
-7835
Dear Appeals Council, Branch 3:
This letter serves to request a 30 day extension of the time in which to commence
a civil action in the United States District Court for the above matter. I just received the
referral of this case and Mr. Olvera is in the process of retaining me. I need additional
time to review Mr. Olvera’s claim and prepare the appropriate documents. Please grant
me an additional 30 days in which to review and prepare the appropriate documentation.
Thank you for your attention and cooperation. Should you have any questions,
please do not hesitate to contact me.
Very truly yours,

Brian C. Shapiro
Brian C. Shapiro
Attorney at Law
BCS:sf
Cc: Daniel Hernandez Olvera