Nguyen v. Colvin

Filing 19

ORDER denying Defendant's Motion for summary judgment on the issue of timeliness. Defendant shall file and serve an answer, along with a certified copy of Administrative Record, within 60 days from the date of this order. Signed by Judge John A. Houston on 3/27/2018. (jpp)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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AIHOA T. NGUYEN,

Case No.: 16-cv-1535-JAH-AGS
Plaintiff,

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v.

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ORDER DENYING DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT ON THE ISSUE OF
TIMELINESS

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

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Defendant.

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INTRODUCTION

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Aihoa Nguyen (“Plaintiff”), filed this action seeking judicial review of a final

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decision of the Commissioner of the Social Security Administration (“Defendant”) denying

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Plaintiff’s claim for Supplemental Security Income disability benefits pursuant to 42

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U.S.C. 405(g). Pending before the Court is Defendant’s Motion to Dismiss, wherein

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Defendant argues Plaintiff failed to timely file her complaint pursuant to 42 U.S.C. §

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405(g). [Doc. No. 11–1]. The parties submitted affidavits and exhibits in connection with

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their briefing on this Motion. Accordingly, on March 13, 2018, the Court notified the

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parties that it would consider the evidence outside the pleadings and would convert

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Defendant’s Motion to Dismiss to a Motion for Summary Judgment. [Doc. No. 18]. The

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parties were given time to file supplemental briefing, however, no additional evidence was

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received from the parties.

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BACKGROUND
I.

Procedural Background

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On November 26, 2012 Plaintiff filed an application for Supplemental Security

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Income (SSI). See Doc. No. 14–1, ¶ 1. Plaintiff’s claim was initially denied, and a hearing

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before an administrative law judge (“ALJ”) was held on November 7, 2014. Id. On

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February 10, 2015, the ALJ issued a decision finding Plaintiff was not disabled. Id.

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Plaintiff’s request for Appeal Council review was denied, and Plaintiff commenced the

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present action pursuant to 42 U.S.C. § 405(g). Id. Plaintiff filed the instant complaint on

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June 18, 2016. [Doc. No. 1]. On October 11, 2016, Defendant filed the operative Motion

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to Dismiss for Lack of Jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).

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[Doc. No. 11]. Thereafter, Plaintiff filed an opposition and Defendant filed a reply. [Doc.

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Nos. 14, 15]. As stated above, on March 13, 2018, this Court converted Defendant’s

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Motion to Dismiss to a Motion for Summary Judgment on the issue of timeliness and

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provided parties an opportunity to supplement the record. See Doc. No. 18.

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II.

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On February 10, 2015, the ALJ issued a decision denying Plaintiff’s claim for Social

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Security Benefits. See Doc. No. 14–1, ¶ 1. Plaintiff subsequently filed a request to the

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Appeals Council of the Social Security Administration for review of that decision. See

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Doc. No. 14–1, ¶ 1; Doc. No. 11–2, ¶ 3(a). As late as April 8, 2016, Plaintiff sent

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supplemental documentation to the Appeals Council in support of her request. See Doc.

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No. 14–1, ¶ 1. The Appeals Council issued a decision (“Appeals Council Notice”) dated

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April 12, 2016 denying Plaintiff’s request for review and providing information about how

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Plaintiff could seek judicial review. See Doc. No. 11–2, pgs. 18–20. The Appeals Council

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Notice included the following information:

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Relevant Factual Background

Time to file a Civil Action
 You have 60 days to file a civil action (ask for court review).
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 The 60 days start the day after you receive this letter. We assume you
received this letter 5 days after the date on it unless you show us that
you did not receive it within the 5-day period.

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Id. at 19.

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Plaintiff submitted a declaration wherein she concedes the Appeals Council Notice

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was dated April 12, 2016, however, Plaintiff claims that she didn’t receive the Appeals

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Council Notice until on or about April 30, 2016. See Doc. No. 14–1, ¶ 1. In support of her

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contention, Plaintiff submitted the envelope the Appeals Council Notice was mailed in,

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which displays a postmark date of April 26, 2016. Id. at pg. 14 (Exhibit 3). Defendant

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provided a declaration from Nancy Chung, the Chief of Court Case Preparation and Review

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for the Social Security Administration. See Doc. No. 11–2, pgs. 2–4. Ms. Chung declared

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that “[o]n April 12, 2016, the Appeals Council sent, by mail addressed to Plaintiff . . .

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notice of its action . . . and of the right to commence a civil action within sixty (60) days

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from the date of receipt.” Id. at ¶ 3(a). Plaintiff filed this action seeking judicial review of

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the Appeals Council’s decision on June 18, 2016. [Doc. No. 1].

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DISCUSSION
I.

Defendant’s Motion for Summary Judgment
a. Legal Standard

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Summary judgment is appropriate under Rule 56(c) of the Federal Rules of Civil

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Procedure where the moving party demonstrates the absence of a genuine issue of material

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fact and entitlement to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v.

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Catrett, 477 U.S. 317, 322 (1986). “[S]ummary judgment will not lie if the dispute about a

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material fact is ‘genuine,’ that is, if the evidence is such that a reasonable jury could return

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a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

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(1986). The burden of establishing the absence of a genuine issue of material fact lies with

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the moving party, and the court must view the evidence in the light most favorable to the

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non-movant. Id. at 255 (citation omitted).

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Should the party moving for summary judgment meet its initial burden, the party

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seeking to defeat summary judgment “may not rely on the mere allegations in the pleadings
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in order to preclude summary judgment, instead, the nonmoving party must set forth, by

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affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine

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issue for trial.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630

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(9th Cir. 1987) (internal citations omitted); Fed.R.Civ.P. 56(e). “In other words, there must

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exist more than ‘a scintilla of evidence’ to support the non-moving party's claims,

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conclusory assertions will not suffice.” Robinson v. Berryhill, No. 17-CV-00126-DMR,

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2017 WL 3284608, at *2 (N.D. Cal. Aug. 1, 2017) (citing Thornhill Publ'g Co. v. GTE

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Corp., 594 F.2d 730, 738 (9th Cir. 1979). When ruling on a motion for summary judgment

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the court should not make credibility determinations, weigh the evidence, or draw

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legitimate inferences from the facts as those are functions of the jury. Anderson, 477 U.S.

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242, 255.

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b. Analysis

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42 U.S.C. § 405(g) provides in relevant part:

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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.

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42 U.S.C.A. § 405(g). “Mailing” is construed as the date of receipt of the notice, which

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“shall be presumed to be 5 days after the date of such notice, unless there is a reasonable

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showing to the contrary.” Vernon v. Heckler, 811 F.2d 1274, 1277 (9th Cir. 1987) (citing

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20 C.F.R. § 422.210) (emphasis added). Should the claimant make a “reasonable showing

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to the contrary” and thus successfully rebut the statutory presumption, the Commissioner

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can attempt to prove that claimant “received actual notice more than 60 days prior to filing

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the complaint in district court.” Matsibekker v. Heckler, 738 F.2d 79, 81 (2d Cir. 1984).

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Here, Defendant argues that Plaintiff did not file her complaint within sixty days

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after she presumptively received the Appeals Council Notice. See Doc. No. 11–1, pg. 5.

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Defendant contends that Plaintiff was presumed to have received the Appeals Council
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Notice on April 16, 2016, which necessitated her to commence a civil action on or before

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June 16, 2016 in order to be timely. Id. Therefore, Defendant argues, since Plaintiff’s

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complaint was not filed until June 18, 2016 it must be dismissed. Id. The Court agrees that

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20 C.F.R. § 422.210(c) entitles the Commissioner to a rebuttable presumption that Plaintiff

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received the Appeals Council Notice by April 16, 2016, which is five days after the date

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of its issuance on April 12, 2016.

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However, Plaintiff may rebut the presumption that she received the Appeals Council

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Notice within five days of April 12, 2016 by making “a reasonable showing to the

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contrary.” 20 C.F.R. § 422.210. Plaintiff offers a stamped envelope, which she avers

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contained the Appeals Council Notice, and is postmarked April 26, 2016. See Doc. No.

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14–1, pg. 14. Additionally, Plaintiff submitted a declaration, in which she asserts that she

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did not receive the Appeals Council Notice until on or about April 30, 2016. Id. at pg. 1, ¶

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2. Plaintiff argues that the postmark date on the envelope is sufficient evidence to rebut the

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statutory presumption that she received the Appeals Council Notice within five days of

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April 12, 2016. Id. at pg. 8. The Court agrees, and finds that Plaintiff has made a reasonable

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showing that she did not receive the Appeals Council Notice within five days of April 12,

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2016. Moreover, the evidence offered by Defendant, specifically the declaration of Ms.

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Chung, does not prove Plaintiff received actual notice more than 60 days prior to filing the

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complaint in district court.

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The evidence presented to the Court shows the Appeals Council Notice was

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postmarked on April 26, 2016. See Doc. No. 14–1. The Ninth Circuit relies on the

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presumption that “first class mail sent within the contiguous United States will arrive

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within three days.” Dandino, Inc. v. U.S. Dep't of Transp., 729 F.3d 917, 921 (9th Cir.

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2013); 39 C.F.R. § 121, App. A; Mendez v. Knowles, 556 F.3d 757, 765 (9th Cir.2009)

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(“[T]he Postal Service advises its customers that first-class mail takes one to three days for

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delivery. . . .”). Based on that presumption, and the postmark date of April 26, 2016, it is

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reasonable to believe that Plaintiff actually received the Appeals Council Notice on April

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30, 2016, as she stated in her declaration. See Doc. No. 14–1, ¶ 2. Using April 30, 2016 as
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the actual date of notice, Plaintiff was required to file her complaint in the present action

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by June 29, 2016, thus making her June 18, 2016 filing timely.

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CONCLUSION AND ORDER

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Based on the foregoing, IT IS HEREBY ORDERED that Defendant’s Motion for

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Summary Judgment on the issue of timeliness is DENIED. Defendant shall file and serve

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an answer, along with a certified copy of Administrative Record, within 60 days from the

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date of this order.

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IT IS SO ORDERED.
DATED:

March 27, 2018
____________________________________
JOHN A. HOUSTON
United States District Judge

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