United States District Court, W.D. Washington, Seattle
KATHY S. MILLER, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
MICHELLE L. PETERSON UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendant's motion to
dismiss for failure to state a claim pursuant to Federal Rule
of Civil Procedure 12(b)(6) for untimely filing the
complaint. (Dkt. # 8 (“Mot. Summ. J.”).) To
support its motion, Defendant submitted several documents,
including a declaration, the Appeals Council decision, and
the administrative law judge (“ALJ”) decision.
(Dkt. # 8-22.) Plaintiff submitted a response with several
exhibits, including declarations and a date-stamped copy
confirming receipt of the Appeals Council decision. (Dkt. ##
9, 9-1, 9-1, 9-3, 9-4, 9-5.) Defendant did not submit a
threshold matter, the Court finds it necessary to convert
Defendant's motion into a motion for summary judgment.
“If, on a motion under Rule 12(b)(6) . . . matters
outside the pleadings are presented to and not excluded by
the court, the motion must be treated as one for summary
judgment under Rule 56.” Fed. Rule Civ. P. 12(d). As
discussed above, Defendant submitted materials outside the
pleadings in support of Defendant's motion and,
similarly, Plaintiff submitted outside materials in support
of her response. The Court finds consideration of that
evidence necessary to resolve the issue of timeliness raised
in Defendant's motion, and thus hereby converts
Defendant's motion to dismiss pursuant to Rule 12(b)(6)
to a motion for summary judgment. Swedberg v.
Marotzke, 339 F.3d 1139, 1146 (9th Cir. 2003) (“A
Rule 12(b)(6) motion to dismiss supported by extraneous
materials cannot be regarded as one for summary judgment
until the district court acts to convert the motion by
indicating, preferably by an explicit ruling, that it will
not exclude those materials from its consideration.”).
motion to dismiss is treated as a motion for summary judgment
on the basis of matters outside the pleadings, “[a]ll
parties must be given a reasonable opportunity to present all
the material that is pertinent to the motion.” Fed.
Rule Civ. P. 12(d). Here, Defendant has already presented
pertinent materials with its motion and Plaintiff has
submitted a response with supporting documents. The Defendant
had an opportunity to present additional materials but chose
not to file a reply. The Court therefore finds it unnecessary
for the parties to submit further materials. For the reasons
set forth below, the Court DENIES Defendant's motion.
April 2, 2018, an ALJ issued a decision regarding
Plaintiff's Title II application for benefits, finding
Plaintiff not disabled. (Dkt. # 8-2 (“Voegele
Decl.”), Ex 1.) Plaintiff requested review of the
decision, which was denied by the Appeals Council on February
1, 2019. (Id., Ex. 2.) Notice of the Appeals Council
decision and Plaintiff's right to commence a civil action
within sixty (60) days from the date of receipt were mailed
to Plaintiff and her representative. (Id. at ¶
3(a).) After receiving notice of the Appeals Council
decision, Plaintiff obtained new counsel. (Dkt. # 9-4
(“Turner Decl.”).) Plaintiff's new counsel
commenced this action on April 11, 2019. (Dkt. # 1.)
judgment is appropriate when a “movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The moving party is entitled to judgment
as a matter of law when the nonmoving party fails to make a
sufficient showing on an essential element of his case with
respect to which he has the burden of proof. Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The
moving party bears the initial burden of showing the district
court “that there is an absence of evidence to support
the nonmoving party's case.” Id. at 325.
The moving party can carry its initial burden by producing
affirmative evidence that negates an essential element of the
nonmovant's case, or by establishing that the nonmovant
lacks the quantum of evidence needed to satisfy its burden of
persuasion at trial. Nissan Fire & Marine Ins. Co.,
Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir.
2000). The burden then shifts to the nonmoving party to
establish a genuine issue of material fact. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986). The Court must draw all reasonable inferences in
favor of the nonmoving party. Id. at 585-87.
opposing party must present significant and probative
evidence to support its claim or defense. Intel Corp. v.
Hartford Accident & Indem. Co., 952 F.2d 1551, 1558
(9th Cir. 1991). “The mere existence of a scintilla of
evidence in support of the non-moving party's position is
not sufficient” to defeat summary judgment.
Triton Energy Corp. v. Square D Co., 68 F.3d 1216,
1221 (9th Cir. 1995). Nor can the nonmoving party
“defeat summary judgment with allegations in the
complaint, or with unsupported conjecture or conclusory
statements.” Hernandez v. Spacelabs Med. Inc.,
343 F.3d 1107, 1112 (9th Cir. 2003).
moves to dismiss the complaint on the grounds that Plaintiff
failed to file her appeal within the time period prescribed
by 42 U.S.C. § 405(g). (Mot. Summ. J. at 3-4.) Section
405(g) states that an individual seeking judicial review of
the final administrative decision is required to file an
action with the court “within sixty (60) days after the
mailing to him of notice of such decision or within such
further time as Commissioner of Social Security may
allow.” 42 U.S.C. § 405(g). By regulation, the
Commissioner of Social Security has required that any civil
action be filed within sixty (60) days of receipt of the
notice denying an individual's request for review. 20
C.F.R. § 422.210(c). The date of receipt is presumed to
be five days after the date of notice, unless there is a
reasonable showing to the contrary. Id. The sixty
(60) day limitations period may be tolled by
“traditional equitable tolling principles, ” such
as when the cause of action is based on duress or undue
influence or when the defendant fraudulently conceals the
cause of action. Bowen v. City of New York, 476 U.S.
467, 479 (1986); Vernon v. Heckler, 811 F.2d 1274,
1277-78 (9th Cir. 1987).
support of Defendant's motion to dismiss, Defendant
submitted the ALJ's decision dated April 2, 2018 and the
notice of the Appeals Council decision dated February 1,
2019. (See Voegele Decl.) Defendant does not allege
which date the notice was actually mailed to Plaintiff and
her representative, but argues the five-day presumption
applies. (Mot. Summ. J. at 4.) Defendant therefore asserts
the presumed date of receipt is February 6, 2019, six-four
(64) days before Plaintiff filed the instant action.
response, Plaintiff submitted a date-stamped copy confirming
receipt of notice of the Appeals Council decision by
Plaintiff's previous counsel on February 11, 2019. (Dkt.
# 9-1.) Plaintiff also submitted declarations from two
employees from Plaintiff's previous counsel's office
which corroborate receipt of notice on February 11, 2019.
(Dkt. ## 9-2 and 9-3.) Further, Plaintiff's current
counsel submitted a declaration stating he confirmed that
Plaintiff's previous counsel received notice on February
11, 2019. (Dkt. # 5.) Lastly, Plaintiff submitted a
declaration herself which states that she left a voicemail
with her previous counsel's office regarding the notice
of decision on the day she received it (Turner Decl.), and
her previous counsel's office logged that voicemail on
February 12, 2019 (dkt. # 9-3 (“Simpson Decl.”)).
Court finds that Plaintiff has overcome the rebuttable
presumption that the date of receipt of notice of the Appeals
Council decision is five-days after the date of notice. Here,
Defendant has not presented any evidence regarding the actual
date that notice of the decision was mailed and instead
relies on the presumption regarding the date of notice. To
rebut this presumption, Plaintiff submitted declarations from
her previous counsel, her previous ...