(SS) Fox v. Commissioner of Social Security

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA CORINA FOX, Case No. 1:22-cv-01466-CDB (SS) 12 Plaintiff, ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS AND 13 v. DIRECTING CLERK OF COURT TO ISSUE SUMMONS, SCHEDULING COMMISSIONER OF SOCIAL SECURITY, ORDER, AND CONSENT OR REQUEST FOR REASSIGNMENT DOCUMENTS 15 Defendant. (ECF Nos. 2, 4) 18 Plaintiff Corina Fox (“Plaintiff”) seeks judicial review of an administrative decision of the Commissioner of Social Security denying Petitioner’s claim for disability benefits under the Social Security Act. (ECF No. 1). On November 14, 2022, Plaintiff filed a motion to proceed in forma pauperis (“IFP”). (ECF No. 2). On November 17, 2022, the Court issued a screening order dismissing Plaintiff’s complaint and denying petitioner’s motion to proceed IFP as the complaint did not specify the date an extension to the Appeals Council was requested and what good cause, if any, Plaintiff had in delaying her filing of this civil action. (ECF No. 3 at 4).

25 On December 19, 2022, Plaintiff filed a first amended complaint. (ECF No. 4). Pursuant to 28 U.S.C. §§ 1915, the Court shall screen the first amended complaint.

27 /// 1 Plaintiff seeks review of a decision by the Commissioner of Social Security denying disability benefits. The Court may have jurisdiction pursuant to 42 U.S.C. § 405(g), which provides: 4 Any individual after any final decision of the Commissioner made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a 5 review of such decision by a civil action commenced within sixty days after the mailing to him of such decision or within such further time as the Commissioner 6 may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides or has his principal place of 7 business…The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the 8 Commissioner of Social Security, with or without remanding the cause for a rehearing.

10 Id. Except as provided by statute, “[n]o findings of fact or decision of the Commissioner shall be reviewed by any person, tribunal, or governmental agency.” 42 U.S.C. § 405(h).

12 Plaintiff’s first amended complaint asserts the Appeals Council issued a decision denying plaintiff’s claim on July 26, 2022. (ECF No. 4 at ¶ 9). On August 18, 2022, Plaintiff alleges her counsel requested an extension of time for Plaintiff to file a civil action appealing the “unfavorable decision due to plaintiff’s worsening medical condition of renal failure requiring hospitalization.” (Id. at ¶ 10). On October 7, 2022, the Appeals Council granted Plaintiff’s request for an extension of time, through November 14, 2022, within which to file a civil action.

18 (Id. at ¶ 11).

19 Petitioner filed an extension of time to the Appeals Council within the sixty-day period set by 42 U.S.C. § 405(g). Accordingly, the Court finds it appropriate to equitably toll the statute of limitations for the purpose of screening the amended complaint. E.g., Walsh v. Colvin, No. 1:13- cv-00991-JLT, 2013 WL 3936905, *2 (E.D. Cal. July 30, 2013); Olvera v. Colvin, No. 1:13-cv- 00515-JLT, 2013 WL 2100567, *2 (E.D. Cal. May 14, 2013); Aschettino v. Sullivan, 724 F.

24 Supp. 1116, 1117-18 (W.D.N.Y. 1989). Moreover, Petitioner’s amended complaint notes she resides Fresno County, California. (ECF No. 4 at ¶ 1). Therefore, the Court has jurisdiction over this action.

27 Petitioner’s first amended complaint states a cognizable claim for review of the | ORDERED that Petitioner’s motion to proceed IFP (ECF No. 2) is GRANTED. The Clerk of | Court is directed to issue the following: 1) a Summons; 2) the Scheduling Order; 3) the Order re | Consent or Request for Reassignment; and 4) a Consent to Assignment or Request for | Reassignment form.

5 IT IS SO ORDERED. °| Dated: December 22, 2022 | hr Rr 7 UNITED STATES MAGISTRATE JUDGE