Sanchez v. Saul

Filing 18

ORDER DENYING 15 MOTION TO DISMISS - The deadline for filing the administrative record is extended to October 8, 2021. Signed by Senior Judge Lonny R. Suko. (LMR, Case Administrator)

Case 1:20-cv-03230-LRS

ECF No. 18

filed 09/07/21

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PageID.106 Page 1 of 5

FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Sep 07, 2021

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SEAN F. MCAVOY, CLERK

UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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ESTHER S., 1

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Plaintiff,

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v.

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KILOLO KIJAKAZI,
COMMISSIONER OF SOCIAL
SECURITY,
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NO: 1:20-cv-03230-LRS

ORDER DENYING MOTION TO
DISMISS

Defendant.

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BEFORE THE COURT is the defendant’s Motion to Dismiss. ECF No. 15.

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14 On February 24, 2020, an administrative law judge (ALJ) denied plaintiff’s claim for
15 disability insurance benefits. ECF No. 15-1 at 5-19. Plaintiff requested review of
16 the ALJ’s decision by the Appeals Council. On October 2, 2020, the Appeals
17 Council denied plaintiff’s request for review. ECF No. 15-1 at 3, 24-26. The Notice
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Plaintiff’s last initial is used to protect her privacy.

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Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9,

2021. The Court therefore substitutes Kilolo Kijakazi as the Defendant and directs
the Clerk to update the docket sheet.
ORDER - 1

Case 1:20-cv-03230-LRS

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of Appeals Council Action advised plaintiff of the right to ask for court review of

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the ALJ’s decision and indicated any action must be filed within 60 days after

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receipt of the notice. “We assume you received this letter 5 days after the date on it

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unless you show us that you did not receive it within the 5-day period.” ECF No.

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15-1 at 25.

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On December 9, 2020, plaintiff filed this action. ECF No. 1. The Complaint

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indicates that Tree Law Office did not open the Notice of Appeals Council Action

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dated October 2, 2020, until November 4, 2020. ECF No. 1 at 2. Concurrent with

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filing the Complaint, plaintiff filed the Declaration of Heather Juarez which

10 indicates that on November 4, 2020, she was “tasked with assisting in catching up on
11 the mail” for Tree Law Office, and that on that date she opened the Appeal Council
12 denial dated October 2, 2020. ECF No. 3.
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Defendant moves for dismissal of the Complaint based on the presumption

14 that plaintiff received the letter five days after October 2, 2020. Defendant
15 calculates the 60-day filing deadline as December 7, 2020, two days before plaintiff
16 filed this action. ECF No. 15. Plaintiff calculates the 60-day period to file an action
17 from November 2, 2020, based on the Declaration of Heather Juarez and asserts the
18 earliest filing deadline would have been December 31, 2020, in which case
19 plaintiff’s filing was timely. ECF No. 1 at 2.
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“Any individual, after any final decision of the Commissioner of Social

21 Security made after a hearing to which he was a party . . . may obtain a review of
such decision by a civil action commenced within sixty days after the mailing to him
ORDER - 2

Case 1:20-cv-03230-LRS

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of notice of such decision.” 42 U.S.C. § 405(g). The regulations provide that, “[t]he

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date of receipt of . . . notice of the decision by the Appeals Council shall be

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

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showing to the contrary.” 20 C.F.R. § 422.210(c). The plaintiff bears the burden to

5 rebut the presumption and if she succeeds, the burden shifts to the government to
6 show proof of receipt more than sixty days before the complaint was filed in district
7 court. See Ashe v. Saul, 983 F.3d 1104, 1106 (9th Cir. 2020). Whether a claimant
8 has made a “reasonable showing” rebutting the presumption is a highly fact9 dependent inquiry. Id. at 1107.
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To further rebut the presumption of receipt of notice, plaintiff cites the later-

11 filed Declaration of Karina Serrano, ECF No. 17, which indicates that it is her job to
12 process Appeals Council notices received at the Tree Law Office. ECF No. 16 at 913 10. Ms. Serrano states that she was on medical leave from October 6 to October 20,
14 2020, and attests that when she returned to work, she reviewed all Appeals Councils
15 decisions that had been received during her absence. At that time, the notice in this
16 case had not been received. ECF No. 17. She asserts the notice “would have been
17 received” at the office sometime between November 2 and November 4, 2020, ECF
18 No. 17 at 3, although the basis for this assertion is unclear. Regardless, Ms.
19 Serrano’s declaration establishes notice was not received by Tree Law Office as of
20 October 20, 2020.
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Plaintiff also points to news reports of delays or backlogs in mail service
locally and throughout the nation at various times during the period of August to
ORDER - 3

Case 1:20-cv-03230-LRS

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November 2020 caused by the impact of COVID-19, changes in the U.S. Postal

2 Service, and mail-in voting for the presidential election. ECF No. 16 at 5-6.
3 Additionally, the defendant filed three motions for additional time to file an answer
4 due to delays in preparing the administrative records caused by the impact of the
5 COVID-19 pandemic. ECF Nos. 9, 11, 13. All three requests for extension of time
6 were unopposed and were granted, resulting in a four-month delay before the
7 Motion to Dismiss was filed. In none of those motions did the defendant assert or
8 imply that the Complaint was not timely filed. See ECF Nos. 9, 11, 13.
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The court notes that the Appeals Council decision was addressed to plaintiff

10 and copied to Tree Law Office, yet the record does not establish by declaration or
11 otherwise that plaintiff herself did not receive the Appeals Council notice mailed to
12 her address. ECF No. 15-1 at 3, 24. Nevertheless, after considering the unique facts
13 and circumstances of this case, the court concludes plaintiff has reasonably rebutted
14 the presumption of receipt of notice. The burden shifts back to the defendant to
15 show actual notice was received, see Ashe at 1108, and there is no such showing
16 here. Therefore, the court finds the Complaint was timely filed.
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Even if plaintiff failed to adequately rebut the presumption, the court is

18 mindful that dismissal would be a harsh consequence to a potentially deserving
19 claimant. The multiple extensions of time received by defendant after at most a two20 day delay in filing the Complaint offset any arguments related to strictly construing
21 the filing deadline for purposes of speedy resolution. See ECF No. 15 at 8.

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THEREFORE, Defendant’s Motion to Dismiss, ECF No. 15, is DENIED.

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The deadline for filing the administrative record is extended to October 8, 2021.

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IT IS SO ORDERED. The District Court Clerk is directed to enter this

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Order and provide copies to counsel.
DATED September 7, 2021.

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LONNY R. SUKO
Senior United States District Judge

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ORDER - 5