United States District Court, D. Utah, Central Division
Benson, District Judge
REPORT AND RECOMMENDATION
C. Wells, Magistrate Judge
matter is referred to the undersigned in accordance with
28 U.S.C. 636(b)(1)(b) for a Report and
Recommendation on all dispositive matters. Plaintiff, Debra
D.G.,  sought judicial review of the
Commissioner's decision denying her application for
supplemental security income (SSI) under the Social Security
Defendant requests dismissal of Plaintiff's Complaint as
untimely under Rule 12(b)(6). After careful consideration of
the record, relevant law, and Defendant's memoranda, the
court has determined oral argument is unnecessary. For the
reasons set forth below, the undersigned recommends that
Defendant's Motion to Dismiss be GRANTED.
an administrative law judge issued a decision denying
Plaintiff disability benefits on September 30, 2016,
Plaintiff filed a Request of Review with the Appeals
Council. On September 18, 2017, the Appeals Council
issued a Notice denying the Request for Review. The Notice
expressly provides as follows:
·You have 60 days to file a civil action (ask for
·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 then 60 days to
ask for court review. You must make the request in writing
and give your reason(s) in the request.
Notice was mailed to both Plaintiff and her
counsel. Pursuant to the Notice, Plaintiff needed
to file a civil action on or before November 22, 2017.
Plaintiff did not file her civil action until November 28,
2017,  six days past the deadline. There is
nothing in the record indicating Plaintiff requested an
extension of time. Moreover, Plaintiff did not oppose, or in
any way respond, to Defendant's motion to dismiss.
Rule 12(b)(6) motion, if “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,
[and] [a]ll parties must be given a reasonable opportunity to
present all the material that is pertinent to the
motion.” “[I]n general, a motion to dismiss
should be converted to a summary judgement motion if a party
submits, and the district court considers, materials outside
the pleadings.” However, notwithstanding this rule,
“the court may consider documents referred to in the
complaint if the documents are central to the plaintiff's
claim and the parties do not dispute the document's
attached to its motion to dismiss documents referenced in the
Complaint, which are central to the Plaintiff's claims.
Plaintiff's counsel received a copy of the motion,
including all the attachments. Plaintiff never responded to
the motion or disputed the authenticity of any of the
attachments. The court has reviewed the attachments to verify
the allegations in both the Complaint and motion to dismiss.
Plaintiff had 60-days from the mailing of the Notice in which
to file her appeal.The Commissioner has interpreted the term
“mailing” as the date of receipt of the Notice by
the individual. The date of receipt is presumed to be
five days after the date of the Notice,  in this case
September 23, 2018. Thus, Plaintiff had until November 22,
2018 (60 days from the date of the Notice, plus five days for
mailing) to ...