United States District Court, D. Utah Central Division
CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant. KAREN M. BALDWIN, Plaintiff,
Waddoups Clark, District Judge
REPORT AND RECOMMENDATION
M. WARNER, United States Magistrate Judge
District Judge Clark Waddoups Magistrate Judge Paul M. Warner
District Judge Clark Waddoups referred this matter to
Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. §
636(b)(1)(B). The court previously granted plaintiff
Karen M. Baldwin's (“Plaintiff”) application
to proceed in forma pauperis. Before the court
is a motion to dismiss by defendant Carolyn W. Colvin, Acting
Commissioner of Social Security Administration
(“Defendant”). Plaintiff failed to oppose the motion.
to civil rule 7-1(f) of the United States District Court for
the District of Utah Rules of Practice, the court elects to
determine the motions on the basis of the written memoranda
and finds that oral argument would not be helpful and is not
necessary. DUCivR 7-1(f).
court RECOMMENDS that the motion to dismiss be GRANTED.
seeks to appeal a November 2, 2011 decision by an
administrative law judge (“ALJ”), denying her
claims for disability insurance benefits and supplemental
security income under Titles II and XVI of the Social
Security Act, 42 U.S.C. §§ 423, 1382. The agency's
Appeals Council declined Plaintiff's request for review
in June 12, 2013, making the ALJ's decision the
Commissioner's final decision for purposes of judicial
review. See 20 C.F.R. § 422.210.
previously filed a complaint challenging the same November
2011 ALJ decision in August 2013. After repeated failures to
prosecute the case, Judge Nuffer adopted a report and
recommendation and dismissed the case without
prejudice. Plaintiff did not appeal the dismissal.
filed her complaint in the underlying action in February
2015. The complaint is virtually identical to the original
complaint and challenges the same November 2011
action seeking judicial review of an action arising under the
Social Security Act must be “commenced within sixty
days after the mailing” of the Commissioner's final
decision “or within such further time as the
Commissioner of Social Security may allow.” 42 U.S.C.
§ 405(g); 20 C.F.R. §§ 404.981, 416.1481,
422.210; Califano v. Sanders, 430 U.S. 99, 108
(1977); Dozier v. Bowen, 891 F.2d 769, 772 (10th
Cir. 1989). “Mailing” has been interpreted as the
date of receipt by the individual. See 20 C.F.R.
§§ 404.901, 416.1401, 422.210(c). The date of
receipt is presumed to be five days after the date of such
notice, unless there is a reasonable showing to the contrary
made to the Appeals Council. See 20 C.F.R.
§§ 404.901, 416.1401, 422.210(c).
the sixty-day period for commencing a civil action ended on
or about August 16, 2013. Because Plaintiff did not file the
underlying complaint until February 5, 2015, her complaint is
foregoing reasons, IT IS HEREBY RECOMMENDED that that the
motion to dismiss be GRANTED. Because amendment of the
complaint would be futile, it is ...