Ricky Colmenero v. Commissioner of Social Security

Filing 5

ORDER DISMISSING COMPLAINT WITH LEAVE TO AMEND; signed by Magistrate Judge Sandra M. Snyder on 5/24/2016. (Amended Complaint due no later than 7/8/2016.) (Valdez, E)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

EASTERN DISTRICT OF CALIFORNIA

7
8

RICKY COLMENERO,

Case No. 1:16-cv-00649- SMS

9
Plaintiff,

10
11
12
13

v.

ORDER DISMISSING COMPLAINT WITH
LEAVE TO AMEND

CAROLYN W. COLVIN, Commissioner of
Social Security,
(Doc. 1)
Defendant.

14
15

Plaintiff Ricky Colmenero, proceeding pro se, seeks review of a decision of the

16

Commissioner of Social Security (“Commissioner”) denying his application for disability insurance

17

benefits (“DIB”) under the Social Security Act (42 U.S.C. § 301 et seq.). The court has reviewed

18

the complaint and applicable law, and for the reason that follows, the complaint will be dismissed.

19
20

Plaintiff is granted leave, however, to file an amended complaint to remedy the deficiency
discussed below.

21
I.

22
23
24

DISCUSSION

A. Plaintiff’s Complaint
Plaintiff challenges the denial of his application for disability insurance which he alleges

25

was not supported by substantial evidence. His entire statement of claim reads as follows:

26

“I had filed a disability claim in 2012 and was denied in 2015. The bases [sic] of this decision was

27

not substantial to the evidence provided. I have documentation of tumors, radiation treatment and

28

1

1

chemo. Also doctor letters from both oncoligists [sic] with statements of fighting cancer.” Doc. 1,

2

p. 5. As relief, Plaintiff seeks compensation for time which he could not work “due to the effects of

3

cancer and treatments.” Doc. 1, pg. 6.

4

B. Federal Rule of Civil Procedure 8(a)(1)

5

Under Rule 8(a)(1) of the Federal Rules of Civil Procedure, a complaint must first set forth

6

a “short and plain statement of the grounds for the court’s jurisdiction.” Fed. R. Civ. P. 8(a)(1).

7
Judicial review of a decision of the Commissioner is governed by Section 405(g) and (h) of the
8
9
10
11
12
13
14
15
16
17
18

Social Security Act, which reads in relevant part:
(g) Any individual, after any final decision of the Commissioner of
Social Security made after a hearing to which he was a party,
irrespective of the amount in controversy, may obtain a review of such
decision by a civil action commenced within sixty days after the
mailing to him of notice of such decision or within such further time as
the Commissioner of Social Security may allow.
(h) The findings and decision of the Commissioner after a hearing shall
be binding upon all individuals who were parties to such hearing. No
findings of facts or decision of the Commissioner of Social Security
shall be reviewed by any person, tribunal, or governmental agency
except as herein provided. No action against the United States, the
Commissioner of Social Security, or any officer or employee thereof
shall be brought under section 1331 or 1346 of Title 28 to recover on
any claim arising under this subchapter.

19

42 U.S.C. §§ 405(g) and (h) (emphasis added). Section 405(g) operates as a statute of limitations

20

setting the time period in which a claimant may appeal a final decision of the Commissioner—

21

namely sixty days. Bowen v. City of New York, 476 U.S. 467, 478 (1986) (“the 60-day requirement

22

is not jurisdictional, but rather constitutes a period of limitations”); Vernon v. Heckler, 811 F.2d

23
24

1274, 1277 (9th Cir.1987) (“The 60–day period is not jurisdictional, but instead constitutes a statute

25

of limitations.”). And because the time limit under section 405(g) is a condition on the waiver of

26

sovereign immunity, it must be strictly construed. Bowen, 476 U.S. at 479; see, e.g., Fletcher v.

27

Apfel, 210 F.3d 510 (5th Cir. 2000) (affirming summary judgment in favor of Commissioner for

28

untimely filing of one day).
2

1
2
3
4
5
6
7
8
9
10

A “final decision” under 42 U.S.C. § 405(g) is reached only after a lengthy process whereby
a plaintiff must exhaust his administrative remedies:
[A] disappointed claimant is afforded a three-stage administrative
review process beginning with de novo reconsideration by the State of
the initial determination. If a claimant is dissatisfied with the state
agency’s decision on reconsideration, he is entitled to a hearing by an
administrative law judge (ALJ) within SSA’s Office of Hearings and
Appeals.
If the ALJ’s decision is adverse to the claimant, the claimant may then
seek review by the Appeals Council. Proceeding through these three
stages exhausts the claimant’s administrative remedies. Following the
determination at each stage, a disappointed claimant is notified that he
must proceed to the next stage within 60 days of notice of the action
taken or the decision will be considered binding.

11

Bowen, 476 U.S. at 471-472. And “[t]hereafter, he may seek judicial review in federal district

12

court, pursuant to 42 U.S.C. § 405(g).” Id. at 472. If a plaintiff does not correctly follow the

13

procedure with respect to appealing the ALJ’s decision, the Court is unable to consider his

14

challenge. Sims v. Apfel, 530 U.S. 103, 107 (2000) (“If a claimant fails to request review from the

15
16
17

[Appeals] Council, there is no final decision and, as a result, no judicial review in most cases”).
In his complaint, Plaintiff does not explain how he has exhausted the Social Security

18

process. While he states the application was filed in 2012 and denied in 2015, it is unknown

19

whether Plaintiff went through the appeals process, which required proceeding through a number of

20

stages before obtaining a final decision from the Appeals Council. Consequently, it is unknown

21

when the Appeals Council’s decision became final. Without such information, the Court cannot

22

determine whether Plaintiff’s complaint was timely filed, such that it may exercise judicial review.

23
24

Plaintiff is thus advised that if he files an amended complaint, sufficient information must

25

be supplied so that the Court can determine whether it has jurisdiction of the action; otherwise, the

26

action may be dismissed for lack of subject matter jurisdiction.

27

C. Equitable Tolling

28

In rare cases, the sixty day statute of limitations can be excused. Section 405(g) has been
3

1

construed to permit extensions of time only by the Commissioner pursuant to Title 20 of the Code

2

of Federal Regulations sections 404.9111 and 416.1411,2 or by a court applying traditional equitable

3

tolling principles in cases “where the equities in favor of tolling the limitations period are so great

4

that deference to the agency’s judgment is inappropriate.” Bowen, 476 U.S. at 480 (internal

5

quotations omitted). For example, the Supreme Court concluded in Bowen that equitable tolling

6

applied where the SSA’s internal policy prevented claimants from knowing that a violation of their

7
rights had occurred. Id. at 481. And in Vernon v. Heckler, the Supreme Court reversed and
8
9

remanded to give the claimant “the opportunity to delineate further a factual basis for estoppel or

10

equitable tolling” based on facts that an SSA employee alleged said, “Don’t worry; they’ll give you

11

an extension.” Vernon v. Heckler, 811 F.2d 1274, 1275, 1278 (9th Cir. 1987). There are, of course,

12

cases to the contrary. In Turner v. Bowen, for example, the Eighth Circuit found “no basis for

13
14

tolling the statute of limitations because [the plaintiff] had not proved to be a person unusually
disadvantaged in protecting his own interests” despite being illiterate and represented by a state

15
16
17

representative (who was not an attorney) at the ALJ hearing. Turner v. Bowen, 862 F.2d 708, 709
(8th Cir. 1988).

18

Plaintiff is therefore also advised that if he did not file this complaint within the sixty day

19

period after receiving an adverse decision from the Appeals Council, he would need to articulate

20

facts similar to those outlined in the cases above in order to establish this Court’s jurisdiction.

21

II.

LEAVE TO AMEND

22
The Court will provide Plaintiff an opportunity to amend the complaint to address the issue
23
24
25

identified above. If Plaintiff chooses to file an amended complaint, it must bear the docket number
assigned in this case and be labeled “First Amended Complaint.” As a general rule, an amended

26
1

27
28

Section 404.911 relate to the provisions of Title II of the Social Security Act concerning old-age,
survivors, and DIB.
2
Section 416.1411 relate to the provisions of Title XVI of the Social Security Act concerning
supplemental security income (“SSI”) for the aged, blind and disabled. Plaintiff does not appear to
seek review of a denial of SSI by the Commissioner.
4

1

complaint supersedes any earlier complaints. Lacey v. Maricopa Cnty., 693 F.3d 896, 925 (9th Cir.

2

2012) (noting that there may be limited exceptions to this rule on appeal). The amended complaint

3

must be “complete in itself without reference to the prior or superseded pleading.” Local Rule 220.

4
5
6

III.

CONCLUSION

For the reasons set forth above, Plaintiff’s complaint is DISMISSED WITH LEAVE TO
AMEND. Plaintiff is instructed to consider the standards set forth in this Order and should only file

7
an amended complaint if he believes his claims are cognizable. Any amended complaint shall be
8
9

filed no later than July 8, 2016. Plaintiff is advised that failure to file an amended complaint by

10

the date specified will result in dismissal of this action.

11

IT IS SO ORDERED.

12
13

Dated:

May 24, 2016

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

5