(SS) Sedano San Nicolas v. Commissioner of Social Security, No. 2:2015cv02179 - Document 17 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 2/1/16 RECOMMENDING that Defendant's 14 motion to dismiss be granted, and this action be closed. Matter referred to District Judge Troy L. Nunley. Within 14 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. (Kastilahn, A)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PRIMARIA SEDANO NICOLAS, 12 13 14 15 16 No. 2:15-cv-2179 TLN CKD Plaintiff, v. FINDINGS AND RECOMMENDATIONS CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 17 18 Pending before the court is defendant’s motion to dismiss. Plaintiff has filed a statement 19 of no opposition. Upon review of the documents in support, no opposition having been filed, and 20 good cause appearing, THE COURT FINDS AS FOLLOWS: 21 22 23 Defendant moves to dismiss under Federal Rule of Civil Procedure 12(b)(6), contending the action is time barred. Defendant’s contention is correct. Pursuant to 42 U.S.C. § 405(g), a civil action seeking review of a final decision of the 24 Commissioner of Social Security must be commenced within sixty days after mailing to plaintiff 25 of the final agency decision. The governing regulations provide that “mailing” means the date of 26 receipt by plaintiff, which is presumed to be five days after the date of notice of the final decision. 27 See 20 C.F.R. § 422.210(c). The sixty day limitation is not jurisdictional but is a statute of 28 limitations. See Vernon v. Heckler, 811 F.2d 1274, 1277 (9th Cir. 1987). 1 1 In a decision dated March 13, 2014, the Administrative Law Judge (“ALJ”) determined 2 plaintiff is not disabled. Thereafter, by letter dated July 30, 2015, plaintiff was notified that the 3 Appeals Council had denied plaintiff’s request for review of the ALJ’s decision. The pending 4 action was not filed until October 19, 2015, outside of the sixty day time limit. In filing no 5 opposition, plaintiff has failed to demonstrate extraordinary circumstances, such as fraud, 6 misinformation, or deliberate concealment, sufficient to equitably toll the statute of limitations. 7 See Jackson v. Astrue, 506 F.3d 1349, 1355 (11th Cir. 2007); see also Bowen v. City of New 8 York, 476 U.S. 467, 481 (1986) (tolling appropriate only in rare cases). 9 Accordingly, IT IS HEREBY RECOMMENDED that: 10 1. Defendant’s motion to dismiss (ECF No. 14) be granted; and 11 2. This action be closed. 12 These findings and recommendations are submitted to the United States District Judge 13 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 14 after being served with these findings and recommendations, any party may file written 15 objections with the court and serve a copy on all parties. Such a document should be captioned 16 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 17 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 18 Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 Dated: February 1, 2016 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 20 21 22 4 sedano2179.mtd.57 23 24 25 26 27 28 2
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