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Butler v. Berryhill

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

December 14, 2017

DONALD R. BUTLER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          David W. Christel United States Magistrate Judge

         Plaintiff appeals from the final decision of the Administrative Law Judge (“ALJ”) denying his applications for Social Security Disability Insurance benefits. Defendant filed a Motion to Dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure (“Motion”) based upon Plaintiff's failure to file a timely appeal of the ALJ's final decision. Dkt. 10. Plaintiff did not file an opposition to the Motion. See generally Dkt. Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 8.

         Plaintiff's Complaint was not filed within the sixty-day limitations period articulated in 42 U.S.C. § 405(g), and Plaintiff has not demonstrated extraordinary circumstances warranting equitable tolling. Thus, the Court grants Defendant's Motion and dismisses this case with prejudice.


         On February 6, 2016, an ALJ issued an unfavorable decision denying Plaintiff's claim for benefits under Titles II and XVI of the Social Security Act (Act). Dkt. 10-1, Exhibit 1, Declaration of Nancy Chung ¶ (3)(a). Plaintiff requested review of the decision by the Appeals Council. Id. On June 1, 2017, the Appeals Council mailed a notice to Plaintiff, with a copy to Plaintiff's attorney, [1] denying his request for review of the ALJ's decision, thus making the ALJ's decision the Commissioner's final decision. Dkt. 10-1, Exhibit 2 at 1-3. The notice from the Appeals Council informed Plaintiff if he wished to commence a civil action, he must do so within sixty days of the letter's receipt, which was assumed to be five days after the date of the denial of the request for review. Dkt. 10-1, Exhibit 2 at 3-4. The notice also informed Plaintiff he could request more time to file for judicial review. Dkt. 10-2 at 4.

         On August 11, 2017, Plaintiff filed a Motion for Leave to Proceed In Forma Pauperis (“Motion for IFP”), which the Court granted, along with his Complaint. Dkts. 1, 3. The Court now considers Defendant's Rule 12(b)(6) Motion. Dkt. 10.


         Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint on the grounds it “fails to state a claim upon which relief can be granted.” To state a claim for which relief may be granted, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

         Defendant attached the following exhibits to support the Motion: Declaration of Nancy Chung, [2] Exhibit 1: ALJ Decision; Exhibit 2: Appeals Council Denial of Review (“Exhibits”). See Dkt. 10-1. In ruling on a motion to dismiss, “a court may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007). If, on a motion to dismiss under Rule 12,

matters outside the pleading are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given reasonable opportunity to present all the material that is pertinent to the motion.

Fed. R. Civ. P. 12(d).

         However, the Court may consider documents whose authenticity is not in question, and upon which the complaint necessarily relies, but which are not attached to the complaint. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). The Ninth Circuit has “extended the ‘incorporation by reference' doctrine to situations in which the plaintiff's claim depends on the contents of a document, the defendant attaches the document to its motion to dismiss, and the parties do not dispute the authenticity of the document, even though the plaintiff does not explicitly allege the contents of that document in the complaint.” Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005); see Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006); Wheat v. Comm'r of Soc. Sec., 2017 WL 469311, at *3 (E.D. Cal. Feb. 3, 2017) (granting motion to dismiss for failure to file complaint within the sixty-day statute of limitations based on documents attached to defendant's motion to dismiss pursuant to Rule 12(b)(6)). Here, the Exhibits are ones upon which Plaintiff's Complaint depends, thus, the Court will consider them as incorporated by reference.

         Here, Defendant contends dismissal is required because Plaintiff failed to file his Complaint within the sixty-day statute of limitations provided by 42 U.S.C. § 405(g). Although the statute-of-limitations defense is usually raised in an answer to a complaint, “it may be raised in a motion to dismiss when the running of the statute is apparent from the face of the complaint.” See Vernon v. Heckler, 811 F.2d 1274, 1278 (9th Cir. 1987) (citing Conerly v. Westinghouse Elec. Corp., 623 F.2d 117, 119 (9th Cir. 1980)). ‚ÄúSuch a motion to dismiss should be granted only if the assertions of ...

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