Johnson v. Colvin

Filing 11

AMENDED ORDER GRANTING MOTION TO DISMISS. Signed by Judge William Alsup on 5/31/2018. (whasec, COURT STAFF) (Filed on 5/31/2018)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ROBIN JOHNSON,

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For the Northern District of California

United States District Court

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Plaintiff,

No. C 17-07381 WHA

v.
NANCY A. BERRYHILL, Deputy Commissioner
for Operations, performing the duties and functions
not reserved to the Commissioner of Social Security,

AMENDED ORDER
GRANTING MOTION
TO DISMISS

Defendant.
/
INTRODUCTION
In this social security appeal, the Acting Commissioner filed a motion to dismiss for
lack of subject-matter jurisdiction. For the reasons herein, the motion is GRANTED.

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STATEMENT

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Both the Social Security Administration (SSA) and the Administrative Law Judge

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denied plaintiff Robin Johnson disability insurance benefits (DIB) and supplemental security

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income (SSI) under the Social Security Act. After these denials, plaintiff sought Appeals

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Council review. On September 21, 2017, the Appeals Council dismissed plaintiff’s request for

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review (Dkt. No. 3). Plaintiff’s complaint herein was filed on December 29, 2017 (Dkt. No. 1).

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Acting Commissioner Nancy A. Berryhill then moved to dismiss for lack of subject-matter

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jurisdiction and failure to state a claim (Dkt. No. 8).

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ANALYSIS
A court may dismiss a complaint under FRCP 12(b)(1) where a court lacks subject-

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matter jurisdiction. A court may also dismiss a complaint for failure to state a claim upon

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which relief can be granted under FRCP 12(b)(6). In reviewing a motion to dismiss, a court

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must read the complaint in light more favorable to the plaintiff. Russell v. Landrieu, 621 F.2d

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1037, 1039 (9th Cir. 1980). A court can review a “final decision” regarding a social security

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claim by a “civil action commenced within sixty days after the mailing to him of notice of such

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decision.” 42 U.S.C. § 405(g). The sixty-day period constitutes a statute of limitations. See

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Matlock v. Sullivan, 908 F.2d 492, 493 (9th Cir. 1990).
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For the Northern District of California

United States District Court

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LACK OF SUBJECT-MATTER JURISDICTION.

Here, there is no subject-matter jurisdiction because plaintiff’s complaint is untimely.

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Because the regulations define “final decisions” as those by the Appeals Council’s reviewing or

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denying of an ALJ decision, the statute of limitations began when plaintiff received notice from

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the Appeals Council. 20 C.F.R. § 416.1481.

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Plaintiff received notice informing her of the dismissal of her request from review on

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September 21, 2017. Unless plaintiff proves otherwise, plaintiff is presumed to receive the

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notice “5 days after the date on the notice.” 20 C.F.R. § 404.901. Assuming plaintiff received

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the notice five days after September 21, plaintiff’s sixty-day period expired on November 27,

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2017. Since plaintiff did not file her complaint until December 29, 2017, the complaint was

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untimely. Thus, there is no subject-matter jurisdiction to review the Appeals Council’s

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decision.

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2.

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Although the sixty-day period in Section 405(g) is subject to equitable tolling, the

EQUITABLE TOLLING.

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practice is only allowed when the equities of favoring tolling the limitations period exceeds

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deference to the agency’s judgment. Bowen v. City of New York, 476 U.S. 467, 480–81 (1986).

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In Bowen, the agency’s final decision was made on a procedural irregularity, and the Supreme

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Court allowed equitable tolling to provide the plaintiffs with reasonable opportunity to learn the

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facts concerning the claim.
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Plaintiff argues that the circumstances warrant equitable tolling because she relies on

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worker’s compensation to provide her medical benefits, including her medication. She alleges

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that because she was unable to access her medication in November 2017, she was physically

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and mentally “incapacitated” from handling her affairs and became unaware of the deadline

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(Dkt. No. 9 at 3). Plaintiff cites no authority to show why equitable tolling is applicable here.

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Unlike Bowen, here no procedural irregularities violated plaintiff’s rights and no other

inability to access her medicine in November allegedly prevented her from remembering the

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deadline, plaintiff provides no evidence that it prevented her from receiving the original notice

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with the deadline expressly listed in September. Consequently, the circumstances of her delay

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For the Northern District of California

extraordinary circumstances warrant extension of the sixty-day period. Although plaintiff’s

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United States District Court

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were not caused by actions or inactions by the Appeals Council. Because plaintiff points to no

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other extraordinary circumstances to render the agency’s judgment inappropriate, plaintiff’s

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case does not warrant equitable tolling. Id. The foregoing is dispositive.

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CONCLUSION
For the foregoing reasons, the Acting Commissioner’s motion to dismiss is GRANTED.
The clerk shall close the file.

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IT IS SO ORDERED.

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Dated: May 31, 2018.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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