United States District Court, W.D. Washington, Tacoma
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
W. Christel United States Magistrate Judge.
filed this action challenging the final decision of the
Commissioner of Social Security (“Commissioner”),
which denied him disability insurance benefits
(“DIB”). See Dkt. 1. Currently before
the Court is Defendant's Motion for Summary Judgment
(“Motion”). Dkt. 12. 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. 5.
reviewing the Motion, the parties' briefing, and the
relevant record, the Court concludes Plaintiff failed to
timely file his Complaint seeking judicial review of the
Commissioner of Social Security's
(“Commissioner”) final decision. Further,
Plaintiff has failed to demonstrate the extraordinary
circumstances which would warrant equitable tolling. As
Plaintiff failed to state a claim upon which relief can be
granted, the Court grants Defendant's Motion (Dkt. 12).
AND PROCEDURAL HISTORY
November 19, 2014, Plaintiff filed an application for DIB,
alleging disability as of June 13, 2014. See Dkt.
12-1, p. 8. The application was denied upon initial
administrative review and on reconsideration. See
id. A hearing was held before ALJ S. Andrew Grace on May
3, 2017. See Id. In a decision dated October 27,
2017, the ALJ determined Plaintiff to be not disabled.
See Id. at pp. 8-18.
undisputed evidence shows that on September 26, 2018, the
Appeals Council issued a “Notice of Appeals Council
Action” (“Notice”), denying Plaintiff's
request for review of the ALJ's decision and making the
ALJ's decision the final decision of the Commissioner.
See Id. at pp. 24-26; 20 C.F.R. §§
404.981, 416.1481. In the Notice, the Appeals Council
informed Plaintiff that he had 60 days to seek judicial
review of the ALJ's decision by filing a civil action.
Dkt. 12-1, p. 25. Specifically, the Notice stated:
• You have 60 days to file a civil action (ask for court
• 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.
• If you cannot file for court review within 60 days,
you may ask the Appeals Council to extend your time to file.
You must have a good reason for waiting more than 60 days to
ask for court review. You must make the request in writing
and give you reason(s) for the request.
undisputed that, because the Appeals Council Notice was dated
September 26, 2018, Plaintiff was presumed to have until
November 30, 2018, to initiate a civil action in this Court.
See id.; see also 20 C.F.R. §
422.210(c). On November 30, 2018, Plaintiff's attorney
requested a 14-day extension from the Appeals Council to file
a civil action. Dkt. 12-1, pp. 30-32. Plaintiff's
attorney stated he requested this extension because he had
been unable to contact Plaintiff for information necessary to
file a civil action, and he now needed time to associate with
local counsel. Id. at p. 32.
December 3, 2018, Plaintiff initiated the civil action in
this Court. See Dkt. 1. On January 16, 2019, the
Appeals Council denied Plaintiff's request for additional
time to file a civil action. Dkt. 12-1, pp. 34-36. The
Appeals Council found the reasons Plaintiff's counsel
stated for needing an extension were “not good reasons
for making or granting the request.” Id. at p.
April 3, 2019, Defendant filed the Motion as a motion to
dismiss pursuant to Rule 12(b)(6), arguing the Court should
dismiss the Complaint for failure to state a claim upon which
relief can be granted. Dkt. 14. On April 22, 2019, Plaintiff
filed a Response. Dkt. 14. Defendant filed a Reply on April
26, 2019. Dkt. 16. Both parties filed declarations and other
documents in support of their arguments about the timeliness
of Plaintiff's Complaint. See Dkt. 12, 12-1, 14,
reviewing the briefing and documents filed by both parties,
the Court, on May 22, 2019, issued the Order Converting
Defendant's Motion to Dismiss to a Motion for Summary
Judgment. See Dkt. 14; see also
Fed.R.Civ.P. 12(d). The Court also gave both parties the
opportunity to file optional supplemental briefing. Dkt. 14.
Neither party filed supplemental briefing. See ...