United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION NOTED FOR NOVEMBER 24,
Theresa L. Fricke United States Magistrate Judge
matter is before the Court on defendant's motion to
dismiss plaintiff's complaint seeking review of the
Commissioner's denial of her application for disability
insurance benefits. Dkt. 15. This matter has been referred to
the undersigned Magistrate Judge. Mathews, Sec'y of
H.E.W. v. Weber, 423 U.S. 261 (1976); 28 U.S.C. §
636(b)(1)(B); Local Rule MJR 4(a)(4). For the reasons set
forth below, the undersigned recommends that the Court deny
defendant's motion to dismiss.
27, 2013, plaintiff filed an application for disability
insurance benefits. An administrative law judge
(“ALJ”) found that plaintiff was not disabled in
a decision dated June 10, 2015. Dkt. 15-1, pp. 5-23. On
December 16, 2016, the Appeals Council denied plaintiff's
request for review of that decision, making the ALJ's
decision the final decision of the Commissioner. Dkt. 2-1 at
p.1; 20 C.F.R. § 416.1481. On February 24, 2017,
plaintiff filed a proposed complaint in this Court seeking
review of the Commissioner's final decision, and the
complaint was subsequently filed on February 28, 2017. Dkts.
1-2. Defendant seeks dismissal of the complaint on the basis
that it was untimely filed, and therefore that the Court
lacks subject matter jurisdiction.
challenge to the Court's subject matter jurisdiction is
“treated as brought under” Federal Rule of Civil
Procedure (FRCP) 12(b)(1). Corrie v. Caterpillar,
Inc., 503 F.3d 974, 980 (9th Cir. 2007); St. Clair
v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989). A
motion to dismiss brought under FRCP 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.” Id. 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.
not an abuse of the Court's discretion, therefore, 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
may obtain judicial review of the Commissioner's final
decision by commencing a civil action in federal court
“within sixty days after the mailing to him of notice
of such decision or within such further time as the Secretary
may allow.” 42 U.S.C. § 405(g); 20 C.F.R. §
404.981 (a claimant may file an action in federal court
within 60 days after the date the notice of the Appeals
Council's action is received). The date notice of the
Appeals Council's decision is received is “presumed
to be 5 days after the date of such notice, unless there is a
reasonable showing to the contrary.” 20 C.F.R. §
noted above, the Appeals Council issued its denial of
plaintiff's request for review on December 16, 2016.
Plaintiff filed her proposed complaint with the Court on
February 24, 2017, which both parties agree was more than the
65 days of allotted time for seeking judicial
review.However, plaintiff argues she had good
cause for filing her complaint late, and asks the Court to
deny defendant's motion on that basis. She claims she was
hindered in her efforts to timely file her complaint by the
fact that: (1) her legal counsel informed her that they would
no longer represent her two weeks after she received the
Appeal Council's notice; (2) her efforts to obtain new
legal counsel to assist in seeking judicial review; and (3)
her mental health conditions.
requirement that a claimant seek judicial review of a
“final decision” made after a hearing by filing a
civil action in federal court within 60 days of mailing the
notice thereof to him or her, may be waived by the Court.
Johnson v. Shalala, 2 F.3d 918, 923 (9th Cir. 1993).
The principal of equitable tolling applies to Section
405(g)'s 60-day filing rule. Bowen v. City of New
York, 476 U.S. 467 480 (1986); see generally,
20 C.F.R. §§ 404.911(b), 404.982. Equitable
tolling applies “when the plaintiff is prevented from
asserting a claim by wrongful conduct on the part of the
defendant, or when extraordinary circumstances beyond the
plaintiff's control made it impossible to file a claim on
time.” Stoll v. Runyon, 165 F.3d 1238, 1242
(9th Cir. 1999). A plaintiff's mental illness or
condition should be considered as a legitimate reason to
apply equitable tolling if the mental illness is severe and
the mental illness or condition caused the plaintiff to file
in an untimely manner. See, Zapata v. Astrue,
C08-5670BHS (W.D. Wash. 2009) 2009 WL 1919008 (allowing
equitable tolling when a mentally ill claimant failed to file
an appeal on time in a Social Security case); Forbess v.
Franke, 749 F.3d 837, 840-842 (9th Cir. 2014) (applying
equitable tolling and reversing the district court's
decision to dismiss under the one-year statute of
limitations, because the petitioner's severe mental
illness afflicted him with delusions, the delusions prevented
him from understanding the one-year deadline for filing a
federal habeas corpus petition, and his mental condition
caused him to fail to meet the deadline).
is no allegation or evidence of any wrongful conduct on the
Commissioner's part here. However, the Court finds that
extraordinary circumstances beyond plaintiff's control
made it impossible for her to file her claim on time.
According to the evidence currently before the Court,
plaintiff received the Appeals Council's notice on
December 24, 2016, meaning she had until February 22, 2017,
to file her complaint in federal court, just two days prior
to when she actually did so. Dkt. 16 at 4-5 (Declaration of
plaintiff's counsel); Dkt. 17, p. 1; Dkt. 17-1; Dkt.
during the second week of January 2017, plaintiff was
informed by the legal representative who handled her claim at
the administrative review level that they would no longer be
handling her claim. Dkt. 17-2. Plaintiff states she started
the process of finding another legal representative on
January 24, 2017, with her sister's help. Id.
She first consulted with an attorney on January 31, 2017, and
learned on February 6, 2017, that that attorney had declined
to pursue her case. Id. A second attorney with whom
she consulted on February 9, 2017, declined to take her case
as well, although it is not entirely clear whether that
attorney declined to do so on that date or sometime later.
February 15, 2017, plaintiff wrote to the Appeals Council
about her efforts to find new legal counsel, and explained
that her “ability to function daily, and the additional
stress upon receiving [the Appeals Council's notice and
the notice from her legal representative] deepened [her]
symptoms preventing [her] from taking immediate
action.” Dkt. 17-2. Plaintiff told the Appeals Council
that her sister was trying to locate an attorney on her
behalf, it seemed unlikely the plaintiff would timely file a
complaint, and consequently she was requesting an extension
of the time to do so. Id.
met current legal counsel on February 22, 2017, the last day
on which she could timely file her complaint. Dkt. 16 at 4-5;
Dkt. 17, p. 2. Two days later, plaintiff's legal counsel
filed her proposed complaint. Dkt. 1. The record also
contains a letter dated February 10, 2017, from Hannah
Hamilton, LMHC, a mental health therapist who has treated Ms.
Cromer since December 2016. In that letter, Ms. Hamilton
states that plaintiff has severe symptoms of bipolar
depressive episode and post-traumatic stress disorder have
impacted her functioning; these symptoms include insomnia,
fatigue, diminished ability to concentrate, thoughts of
death, and persistent negative beliefs that she is unable to
follow up on tasks. Dkt. 17-3. Ms. Hamilton goes on to state
that those symptoms “also cause her to believe that she
and the world are unsafe which makes it difficult to trust
the system.” Id. Ms. Hamilton asserts that
plaintiff “has been unable to follow-through on a
timely request for an appeal due to her PTSD and
addition, the record shows that the ALJ found the plaintiff
has severe mental health impairments including bipolar
affective disorder, post-traumatic stress disorder, and
borderline personality disorder. Dkt. 15-1 at pp. 10-11.
does not take issue with the plaintiff's allegations of
fact, nor does the defendant argue that the facts fail to
support a determination that plaintiff is entitled to
equitable tolling. The Court finds that in the interests of
justice equitable tolling should be applied in this case.
See generally, Lytle v. McDaniel,184 Fed.Appx. 595,
596 (9th Cir. 2006) (finding petition for habeas corpus under
28 U.S.C. § 2254, filed 56 days beyond the one-year
statute of limitations was subject to equitable tolling, when
the petitioner's lawyers withdrew and did not send the
file until a new lawyer was appointed several months later).
Plaintiff was forced to attempt to find new legal counsel two
weeks after she received the Appeals Council's notice.
Dkt. 17-2. While she did not start ...