Opinion
CV-23-00304-TUC-RM (AMM)
12-12-2023
Lillian A Osbond, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable Angela M. Martinez, United States Magistrate Judge
Plaintiff Lillian A. Osbond (“Plaintiff”) initiated this action on July 3, 2023. (Doc. 1.) Plaintiff seeks review of the decision of the Commissioner of Social Security (the “Commissioner”) regarding an overpayment of benefits. (Id.; doc. 14-2) Pending before the Court is the Commissioner's Motion to Dismiss, filed on August 25, 2023. (Doc. 14.) On September 27, 2023, the Court issued an Order directing Plaintiff, who is selfrepresented, to respond to the Motion to Dismiss by October 17, 2023, and warning her that a failure to respond “may in the discretion of the Court be deemed a consent to the granting of that Motion without further notice, and judgment may be entered dismissing the complaint and action with prejudice pursuant to LRCiv. 7.2(i).” (Doc. 15); see also Brydges v. Lewis, 18 F.3d 651 (9th Cir. 1994) (dismissal for non-response appropriate where plaintiff was warned of consequence of failure to respond). The deadline has passed, and Plaintiff has not responded. Because the Motion to Dismiss is meritorious, and in the absence of any counterargument by Plaintiff, the Court recommends granting the Motion to Dismiss.
In the Motion to Dismiss, the Commissioner argues that the Complaint was untimely filed and, because a basis for tolling the statute of limitations is lacking, the Complaint should be dismissed as untimely. (Doc. 14.)
Social security claimants may file a civil action in the District Court within sixty days after the Appeals Council mails its notice of decision, or within such additional time as the Commissioner allows. 42 U.S.C. § 405(g)-(h). By law, the Commissioner allows five additional days after the date of the notice. 20 C.F.R. § 422.210(c). Thus, absent a request for an extension of time, an individual must file a civil action under 42 U.S.C. § 405 within sixty-five days of the date the Appeals Council denies review. Equitable tolling is available only under limited circumstances, which have not been raised and do not appear to be present here. See Menominee Indian Tribe of Wisconsin v. United States, 577 U.S. 250, 255 (2016) (equitable tolling of statute of limitations available only if the litigant has pursued her rights diligently and extraordinary circumstances prevented her from timely filing).
Here, the Appeals Council denied Plaintiff's request for review on March 27, 2023. (Doc. 14-3.) Plaintiff commenced this action on July 3, 2023, ninety-eight days after the Appeals Council denied review. (Doc. 1.) Plaintiff would have had to file her Complaint on or before May 31, 2023 to be within the sixty-five day statute of limitations. However, Plaintiff filed the Complaint 33 days late, did not offer an explanation for the late filing, and has not responded to the Motion to Dismiss. Accordingly, pursuant to the Court's prior Order and Brydges, dismissal is appropriate. The Court recommends dismissal without prejudice as it is possible that Plaintiff may articulate a basis for equitably tolling the statute of limitations. See Wisenbaker v. Farwell, 341 F.Supp.2d 1160, 1166 (D. Nev. 2004) (citing McCoy v. Goord, 255 F.Supp.2d 233, 252 (S.D.N.Y. 2003)).
Accordingly, IT IS RECOMMENDED that the District Court enter an Order granting the Motion to Dismiss (doc. 14) and dismissing without prejudice the above-captioned action.