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Bender v. Colvin

United States District Court, W.D. Washington, Tacoma

June 10, 2014

TRACY N. BENDER, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


KAREN L. STROMBOM, Magistrate Judge.

Plaintiff has brought this matter for judicial review of defendant's dismissal of his claim for disability insurance benefits. This matter is currently before the Court on defendant's motion to dismiss plaintiff's complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure ("Fed. R. Civ. P.") 12(b)(1). See ECF #10. Pursuant to 28 U.S.C. ยง 636(c), Fed.R.Civ.P. 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. After reviewing defendant's motion, plaintiff's response thereto and the remaining record, the Court hereby finds that for the reasons set forth below defendant's motion should be denied and this matter should be remanded for an administrative hearing on the merits of plaintiff's disability claim.


A motion to dismiss brought pursuant to Fed.R.Civ.P. 12(b)(1) "can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency, and in so doing rely on affidavits or any other evidence properly before the court." St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989); see also Corrie v. Caterpillar, Inc., 503 F.3d 974, 980 (9th Cir. 2007). The party opposing the motion then must "present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction." St. Clair, 880 F.2d at 201. As such, it is not an abuse of the Court's discretion to consider such "extra-pleading material, " even when "necessary to resolve factual disputes." Id. "[A]ll disputed facts, " however, are to be "resolved in favor of the non-moving party." Costco v. United States, 248 F.3d 863, 865-66 (9th Cir. 2001); see also Murphy v. Schneider National, Inc., 362 F.3d 1133, 1139 (9th Cir. 2004); McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000) (court favorably views facts alleged to support jurisdiction).


On May 14, 2012, plaintiff filed an application for disability insurance benefits, which was denied both on initial administrative review on July 17, 2012, and on reconsideration on November 5, 2012. See ECF #10-2, pp. 2-3, Exhibits 1-2. On January 28, 2013, plaintiff hired an attorney to represent him in regard to the administrative appeal proceedings. See ECF #11-1, p. 1. According to plaintiff's attorney, when plaintiff hired him:

... He explained to us that he had called Social Security in an attempt to appeal the November 5, 2012 reconsideration denial. On December 31, 2012, he had spoken with a Social Security employee named Denitra, who told him that the appeal forms would be mailed out to him, and they would be date stamped with the current date. At that time [plaintiff] was too ill to travel to the Social Security office.
After several weeks, when he had still not received the forms in the mail, he called again and was told to go into the office. His wife went into the office for him and picked up the appeal forms, and he then contacted my firm and asked for help.

ECF #11-2, pp. 1-2. That same day, plaintiff's attorney's office sent to the Social Security Administration's ("SSA") Puyallup field office via facsimile a request for an administrative hearing, along with a good cause statement from plaintiff. See ECF #11-1, pp. 1, 3-6, ECF #11-2, p. 2; see also ECF #10-2, p. 3, Exhibit 3. In that statement, plaintiff wrote in relevant part:

I have called this [SSA] number 1[-]800-772-1213[1] to request an appeal and and [sic] did not receive it by mail[.] [T]he last time I called them was on Dec 31, 2012[.] I talked to Denitra at 12:19 to 12[:]45[.] I told her [sic] have not got my appeal papers in the mail[.] I told her I was sick and asked do I need to go down to [the] SS[A] office to do this and she said no that she would send them in the mail and they would be stamped for the 31[st] of Dec[.] so it would be fine[.] I asked for [sic] name and a reference number[.] She gave me her name but did not give me a reference number[.] She said she didn't have one. So I have it on my phone record so when I did not get the appeal in the mail again, I called, the lady told me to go down to the SS[A] office[.] So my wife whent [sic] for me because I can't sit that long, someone needs to track the phone confer [sic], down and find out why she never sent my paper work[.] I have done everything the[y] request[ed] of me...

ECF #11-1, p. 4.

On February 27, 2013, having received no response from the SSA, plaintiff's attorney's office re-faxed the above paperwork to the Puyallup field office. See ECF #11-1, pp. 1, 7. On April 18, 2013, plaintiff's attorney's office received confirmation of receipt of that paperwork by the Puyallup field office. See ECF #11-1, p. 9. On April 25, 2013, plaintiff's attorney's office received a notice from the Chief Administrative Hearing administrative law judge ("ALJ"), informing them that they needed to provide an explanation as to why the filing of the hearing request was late. See ECF #11-1, p. 1, ECF #11-2, p. 2. On April 30, 2013, plaintiff's attorney's office responded by faxing a statement explaining their attempts to file the hearing request, along with the good cause statement that previously twice had been sent to the Puyallup field office. See ECF #11-1, pp. 1, 8-10.

On May 8, 2013, however, plaintiff's request for a hearing was dismissed by an ALJ. See ECF #10-2, p. 3, Exhibit 4. In her order of dismissal, the ALJ found in relevant part:

This claim was denied initially on July 17, 2012 and upon reconsideration on November 5, 2012. Thereafter, the claimant filed an untimely written request for hearing on April 18, 2013....
An Administrative Law Judge may dismiss a request for hearing if the claimant did not request a hearing within the stated time period and no extension of time has been granted for requesting the hearing (20 CFR 404.957(c)(3)).
A request for hearing must be filed within 60 days after the date the claimant received notice of the previous determination (or within the extended time period if an extension of time has been granted) (20 CFR 404.933(b)(1)). The notice of the previous determination is presumed to have been received 5 days after the date on the notice, unless the claimant can establish that he did not receive the notice within the 5-day period (20 CFR 404.901). If the claimant has a right to a hearing, but has not requested one in time, he may ask for more time to request the request. The request for an extension of time must be in writing and give the reasons why the request for a hearing was not timely filed. If the claimant can ...

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