Walker-Butler v. Colvin

Filing

OPINION issued by Sandra L. Lynch, Appellate Judge; Bobby R. Baldock, Appellate Judge and William J. Kayatta, Jr., Appellate Judge. Published. [16-1944]

Case: 16-1944

Document: 00117154121

Page: 1

Date Filed: 05/12/2017

Entry ID: 6091699

United States Court of Appeals
For the First Circuit
No. 16-1944
CYNTHIA DIANE WALKER-BUTLER,
Plaintiff, Appellant,
v.
NANCY A. BERRYHILL,*
Acting Commissioner of the Social Security Administration,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]

Before
Lynch, Baldock,** and Kayatta
Circuit Judges.

Riley L. Fenner on brief for appellant.
Nicole Sonia, Special Assistant United States Attorney,
Social Security Administration, Office of the General Counsel,
and Thomas E. Delahanty II, United States Attorney, on brief for
appellee.

May 12, 2017

*

Pursuant to Fed. R. App. P. 43(c)(2), Nancy A. Berryhill
has
been
substituted
for
Carolyn
W.
Colvin
as
Acting
Commissioner of the Social Security Administration.
**

Of the Tenth Circuit, sitting by designation.

Case: 16-1944

Document: 00117154121

Page: 2

Date Filed: 05/12/2017

BALDOCK, Circuit Judge.
federal

district

court,

the

Entry ID: 6091699

Following a remand from a

Commissioner

of

Social

Security

issued a partially favorable decision on Plaintiff Cynthia Diane
Walker-Butler's
Dissatisfied,

claim

for

Plaintiff

Title

once

II

again

disability
sought

benefits.

review

of

the

Commissioner's decision in federal court, but the district court
dismissed her complaint as untimely.
whether

a

five-day

§ 422.210(c)

should

grace
have

We consider in this appeal

period

applied

outlined
on

remand

in

20

C.F.R.

and

saved

her

complaint from dismissal.
I.
An
from

the

individual

Social

seeking

Security

Title

II

Administration

disability
may

obtain

benefits
judicial

review in federal district court of "any final decision of the
Commissioner of Social Security [regarding those benefits] made
after a hearing to which he was a party."

42 U.S.C. § 405(g).

On an individual's initial application for disability benefits,
such a final decision arises in only two circumstances.

First,

the decision of the administrative law judge ("ALJ") who held
the hearing on the individual's claim will become the final
decision

of

the

Commissioner

if

the

Appeals

Council

of

the

Social Security Administration denies the individual's request
for further review.

20 C.F.R. §§ 404.981, 422.210(a).

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Second,

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Entry ID: 6091699

if the Appeals Council does decide to review the individual's
claim, the Appeals Council's decision becomes the final decision
of

the

Commissioner.

Id.

In

either

instance,

the

Appeals

Council must take some action—either denying review or issuing
its own decision—before the individual is considered to have
exhausted his or her administrative remedies with the Social
Security Administration and may therefore seek judicial review
in federal district court.

See id.

But what counts as the Commissioner's final decision
differs when the individual's case has already gone to federal
court and been remanded for further proceedings.

In such an

instance, and assuming the individual does not file with the
Appeals Council any written exceptions to the ALJ's new decision
on remand, the ALJ's decision "will become the final decision of
the Commissioner after remand on [the individual's] case unless
the Appeals Council assumes jurisdiction of the case" within
sixty days after the date of the ALJ's new decision.1

1

Id.

If the individual does file written exceptions with the
Appeals Council, then the procedures are much more similar to an
individual's initial application for benefits:
either the
Appeals Council will (1) "conclude[] that there is no reason to
change the decision of the [ALJ]" and deny review, in which case
"the decision of the [ALJ] is the final decision of the
Commissioner after remand," 20 C.F.R. § 404.984(b)(2), or
(2) assume jurisdiction of the case based on the exceptions and
issue a "new, independent decision" that in turn functions as
the final decision of the Commissioner after remand, id.
§ 404.984(b)(3).
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Case: 16-1944

Document: 00117154121

§ 404.984(a), (c)
Appeals

Council

Page: 4

(emphases
does

not

Date Filed: 05/12/2017

added).
need

to

Put
take

Entry ID: 6091699

differently,
action

before

the
the

individual may seek judicial review in federal district court.
See id.

If the Appeals Council chooses to do nothing, the ALJ's

decision

automatically

Commissioner.

the

final

decision

of

the

Id. § 404.984(d).

These
application

becomes

for

differences
disability

in

finality

benefits

and

on
on

an

initial

remand

from

a

district court influence how we calculate the amount of time the
individual has to seek judicial review.

In both situations,

42 U.S.C. § 405(g) applies and mandates that the individual must
file

his

or

her

civil

action

"within

sixty

days

after

the

mailing to him of notice of [the Commissioner's final] decision
or

within

such

further

Security may allow."

time

as

the

Commissioner

42 U.S.C. § 405(g).

of

Social

Even so, the specific

procedural posture of the case changes the practical effect of
this statute.

As we explain more later on, however, the case
currently before us does not involve any decision on remand to
which written exceptions were filed with the Appeals Council.
Thus, for the sake of simplicity, when we discuss cases on
remand or the Commissioner's final decision on remand, we are
specifically referring to the situation where an individual has
not filed any written exceptions to the ALJ's decision.
Similarly, our ultimate decision today is only concerned with
situations where an individual has not filed any written
exceptions.
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Case: 16-1944

Document: 00117154121

On
applying

§ 405(g)

scenario,
always

the

mails

denying

initial

Appeals

review

relatively
Council,

individual
or

issuing

§§ 404.967, 404.981.

Date Filed: 05/12/2017

applications

is

the

Page: 5

a

for

Entry ID: 6091699

disability

benefits,

straightforward.

which

must

notice

of

its

own

take
that

In

that

some

action,

action

(i.e.,

decision).

20

C.F.R.

As such, the default rule under § 405(g)

is that the individual has sixty days from the date the notice
was mailed to bring a civil action unless the Commissioner has
given him or her more time to do so.

And under 20 C.F.R.

§ 422.210(c), the Commissioner has done just that:
this

regulation,

the

sixty-day

time

limit

pursuant to

starts

when

the

individual receives the notice of the Appeals Council's action.
Further,

§ 422.210(c)

provides

that

"[f]or

purposes

of

this

section, the date of receipt of notice . . . shall be presumed
to be 5 days after the date of such notice, unless there is a
reasonable showing to the contrary."
But on remand, the application of § 405(g) is a bit
trickier.
on

remand

While the ALJ must mail a notice of its new decision
to

the

individual,

see

20

C.F.R.

§§ 404.977(c),

404.984(b)(1), the Appeals Council, which has no obligation to
act, need not mail a notice to the individual when it decides
not to assume jurisdiction over the case, see id. § 404.984(d)
(omitting any language suggesting that the Appeals Council must
mail to the individual a notice of its decision not to assume
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Case: 16-1944

Document: 00117154121

jurisdiction).
decision

Page: 6

Date Filed: 05/12/2017

Entry ID: 6091699

In other words, in the situation where the ALJ's

automatically

turns

into

the

final

decision

of

the

Commissioner after sixty days, no new notice is mailed to the
individual informing him or her of that transformation.

This

makes § 405(g) somewhat awkward to apply to these situations on
remand
Appeals

even

though

Council

it

does

undoubtedly
not

mail

a

does

apply:

separate

because

notice

of

the
this

automatic final decision, how can the individual file his or her
civil action in federal court within sixty days of the mailing
of a notice?
Obviously,

the

individual

cannot

do

so.

For

that

reason, § 405(g)'s sixty-day time limit must necessarily begin
to run from the day the ALJ's decision automatically transforms
into the final decision of the Commissioner.2

As one district

court aptly put it, "[t]he Appeals Council's inaction triggers

2

An argument could be made that on remand the ALJ's
notice of decision, which could potentially become the final
decision of the Commissioner after sixty days, instead functions
as the notice from which the sixty-day filing period described
in § 405(g) begins to run.
But this would make little sense.
The practical result of such an interpretation would be that the
individual would still have to wait a full sixty days to see if
the Appeals Council would assume jurisdiction of the case, 20
C.F.R. § 404.984(c), and then if it did not, he or she would
have little to no time left to seek judicial review of the ALJ's
decision in federal court. As should be quite obvious, that
would be manifestly absurd and unjust.
In any event, both
Plaintiff and the Commissioner assume on appeal that the sixtyday filing period under § 405(g) begins to run from the date the
ALJ's decision automatically becomes the Commissioner's final
decision, and we see no reason to disturb this mutual agreement.
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the finality of the decision (without need for any mailing of a
notice of final decision), and a claimant then has sixty days
from that date to commence a civil action."
No.

3:15-cv-05575-RBL,

2015

WL

9302910,

Harris v. Colvin,
at

*1

(W.D.

Wash.

Dec. 18, 2015).
But what about 20 C.F.R. § 422.210(c) and its five-day
grace

period?

Can

it

somehow

apply

on

remand

to

give

an

individual an extra five days to once again seek judicial review
in federal court even though this regulation speaks in terms of
receiving a notice?

The applicability of § 422.210(c) to cases

on remand forms the basis of Plaintiff's appeal today.
II.
Plaintiff
with

the

Social

applied

Security

for

Title

II

disability

Administration.

An

ALJ

benefits
initially

denied her claim after a hearing, and the Appeals Council denied
her request for review.
the

final

sought

decision

judicial

of

Accordingly, the ALJ's decision became
the

review

Commissioner
with

a

from

federal

which

Plaintiff

district

42 U.S.C. § 405(g); 20 C.F.R. §§ 404.981, 422.210.

court.

The district

court remanded her claim for further administrative proceedings
in December 2014.
On August 27, 2015, while on remand, the ALJ changed
course and issued a partially favorable decision on Plaintiff's

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Case: 16-1944

Document: 00117154121

claim.

Page: 8

Date Filed: 05/12/2017

Entry ID: 6091699

The ALJ mailed a copy of the notice of that decision to

Plaintiff.

In pertinent part, the notice stated the following:

If you do not file written exceptions and the Appeals
Council does not review my decision on its own, my
decision will become final on the 61st day following
the date of this notice.
After my decision becomes
final, you will have 60 days to file a new civil
action in Federal district court.
You will lose the
right to a court review if you do not file a civil
action during the 60-day period starting with the day
my decision becomes final. . . . We will not send you
any more notices about your right to file in Federal
district court.
Notably, Plaintiff did not file any written exceptions to the
ALJ's decision on remand.

Similarly, the Appeals Council did

not review the ALJ's decision on its own accord.

The ALJ's

decision therefore became the final decision of the Commissioner
once again.

20 C.F.R. § 404.984.

Plaintiff thereafter filed a civil action in federal
district

court

on

decision on remand.
Plaintiff's
Commissioner

action
argued

January

4,

2016,

challenging

the

ALJ's

The Commissioner, however, moved to dismiss
on

the

that

basis
the

that

ALJ's

it

was

decision

untimely.
became

The

final

on

October 27, 2015, which was the first day after the Appeals
Council's sixty days to assume jurisdiction of the ALJ's August
27, 2015 notice of decision had run.

As such, the Commissioner

calculated that Plaintiff had until only December 26, 2015—sixty
days

after

action

in

the

ALJ's

federal

decision

court

became

challenging
- 8 -

final—to
the

file

decision.

a

civil
Since

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Entry ID: 6091699

December 26 was a Saturday, however, the Commissioner conceded
that Plaintiff could wait until the following Monday, December
28 to file her claim.

But because Plaintiff nonetheless missed

this deadline by several days, the Commissioner believed that
Plaintiff's action was time-barred.
In

response,

Plaintiff

argued

that

20

C.F.R.

§ 422.210(c) and its five-day grace period saved her claim from
being untimely.

By applying this five-day grace period, she

claimed that she was presumed to have received the ALJ's August
27 notice of its decision five days later on September 1, 2015.
As a result, she maintained that the ALJ's decision actually
became final sixty-one days later on November 1, 2015.

But

because November 1 was a Sunday, Plaintiff noted that she could
not have received any notice of the Appeals Council's assumption
of

jurisdiction

over

the

case

"had

following day on Monday, November 2.

it

done

so"

until

the

Under the impression that

this meant she could start counting from November 2, Plaintiff
calculated that her sixty-day filing limit fell on January 1,
2016,

a

federal

holiday.

The

next

business

day

after

this

federal holiday was Monday, January 4, 2016, the date on which
Plaintiff filed her complaint in district court.

Consequently,

and although many steps were involved, Plaintiff claimed that
her civil action was timely.

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Document: 00117154121

The

district

Page: 10

court

Date Filed: 05/12/2017

ruled

against

Entry ID: 6091699

Plaintiff.

It

concluded that "20 C.F.R. § 422.210 is a regulation that deals
with

judicial

review

of

initial

final

decisions,

not

final

decisions on remand," and therefore determined that Plaintiff
could not rely on the five-day grace period outlined in that
regulation.

As a result, the district court sided with the

Commissioner

and

dismissed

her

complaint

for

being

untimely

filed.
Plaintiff

now

appeals

from

the

district

court's

dismissal and asks us to hold that the five-day grace period
outlined in 20 C.F.R. § 422.210(c) applies to final decisions on
remand.
III.
We hold that the five-day grace period outlined in
§ 422.210(c) does not apply to final decisions on remand where
the individual does not file any written exceptions to the ALJ's
decision and the Appeals Council does not assume jurisdiction of
the case.
First, the language of § 422.210(c) itself makes this
conclusion apparent.

By its terms, the five-day grace period

outlined in that regulation applies only when the individual
receives
notice

a

of

"notice
[a]

§ 422.210(c).

of

decision

denial
by

of

the

request
Appeals

for

review . . . or

Council."

20

C.F.R.

Section 422.210(c), therefore, assumes that the
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Appeals Council has taken some action informing the individual
of what it has chosen to do.

And as we explained before, the

only time the Appeals Council must take such action is on an
initial application for benefits.

On remand, by comparison, the

Appeals Council has no obligation to mail any notice to the
individual if it decides not to assume jurisdiction over his or
her case.

For that reason, the terms of § 422.210(c) simply do

not apply to decisions on remand.
Second, and contrary to Plaintiff's suggestion, the
language of 20 C.F.R. § 404.984(c) teaches that the five-day
grace period under § 422.210(c) does not apply instead to the
individual's receipt of the ALJ's notice of decision.

According

to § 404.984(c), the ALJ's decision will become final unless the
Appeals Council assumes jurisdiction of the case "[a]ny time
within 60 days after the date of the decision of the [ALJ]."
C.F.R. § 404.984(c) (emphasis added).

20

The plain language of

this regulation mentions nothing about mailing or receiving the
ALJ's notice; it mentions only the date of the ALJ's notice of
decision.
decision

The date the individual receives the ALJ's notice of
on

remand

is

therefore

irrelevant,

because

under

§ 404.984(c) the date the ALJ's decision becomes final "is not
dependent
decision."

on

the

date

of

plaintiffs

[sic]

Harris, 2015 WL 9302910, at *1.

- 11 -

receipt

of

the

Instead, "the 60-

Case: 16-1944

day

Document: 00117154121

deadline

for

Page: 12

is

action

Date Filed: 05/12/2017

Administration's,

the

Entry ID: 6091699

not

the

Id. (emphasis added).3

plaintiff's."

Third, applying § 422.210(c) to decisions on remand is
simply unnecessary.

In those situations, the individual already

has substantially more time to decide whether to seek judicial
review

than

benefits:

he
in

or

she

addition

would
to

on

the

an

initial

sixty

days

application
under

42

for

U.S.C.

§ 405(g) guaranteed to any individual wishing to challenge the
Commissioner's final decision in federal court, an individual on
remand also has sixty days from the date of the ALJ's decision
under 20 C.F.R. § 404.984(c) when he or she is waiting to see if
that decision will transform into the final decision of the
Commissioner.

In effect, this is extra time for the individual

to contemplate whether he or she will file a claim in federal
court should the ALJ's decision be the final decision of the
Commissioner.
For illustration, assume for the purposes of argument
that

the

ALJ's

egregiously

August

delayed

in

27
the

notice
mail

3

of
and

decision
that

on

remand

Plaintiff

was

actually

As a side note, we also find it interesting that
Plaintiff thinks the ALJ's notice of decision should be
considered as the notice from which she can benefit from the
five-day grace period under § 422.210(c), but should not be
considered as the notice from which the sixty-day time limit for
filing a federal action under § 405(g) begins to run. See supra
note 2.
We are not entirely sure why the ALJ's notice of
decision would apply in one instance but not the other.
It
appears that Plaintiff wants to have her cake and eat it, too.
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received it several weeks later on October 1.

Entry ID: 6091699

Without further

action by the Appeals Council, that decision would still have
become final on October 27, which would mean that Plaintiff
would have had to file an action in federal court challenging it
by December 28.

In that situation, Plaintiff would still have

had nearly three months to decide whether to challenge the ALJ's
action.

Even after factoring in such an egregious delay, this

is still significantly longer than the sixty-five days (sixty
days under 42 U.S.C. § 405(g) plus the five-day grace period
under 20 C.F.R. § 422.210(c)) that an individual usually has to
decide whether to challenge the Commissioner's final decision on
an initial application for benefits.

Thus, giving an individual

on remand recourse to the five-day grace period outlined in
§ 422.210(c) would amount to an unnecessary windfall.
Fourth

and

finally,

the

ALJ's

actual

notice

of

decision that was issued to Plaintiff in this case explicitly
and accurately informed her of the time limits she had to seek
judicial review in federal court.

The ALJ advised Plaintiff

that "my decision will become final on the 61st day following the
date of this notice," which conforms to the requirements of 20
C.F.R. § 404.984(c).

Further, the ALJ also advised Plaintiff

that "[a]fter my decision becomes final, you will have 60 days
to file a new civil action in Federal district court," which
conforms to the requirements of 42 U.S.C. § 405(g).
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Plaintiff

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Entry ID: 6091699

was therefore fully informed of the time in which she could seek
judicial review.
Plaintiff attempts to seize on another portion of the
ALJ's

notice

of

decision

wherein

the

ALJ

informed

her

that

"[t]he Appeals Council assumes that [she] got this notice within
5 days after the date of the notice."
statement

within

a

section

But the ALJ included this

discussing

the

time

within

which

Plaintiff could file written exceptions to his decision.

In

such a context, the five-day grace period under § 422.210(c)
makes

perfect

requirements

sense:

for

filing

the

regulation

written

that

exceptions

outlines

explicitly

the

states

that "[t]he exceptions must be filed within 30 days of the date
you

receive

the

§ 404.984(b)(1)

decision

(emphasis

of

added).

the

[ALJ]."

Because

20

that

C.F.R.

regulation

explicitly speaks in terms of receiving decisions, applying the
five-day grace period under § 422.210(c) presents no problems.
But Plaintiff never filed any written exceptions to the ALJ's
decision.

As such, the section of the ALJ's notice of decision

referencing the five-day grace period has no application for our
present purposes.
In

conclusion,

Plaintiff

cannot

apply

the

five-day

grace period under 20 C.F.R. § 422.210(c) to save her civil
claim from being untimely.

And although the sixty-day time

limit under 42 U.S.C. § 405(g) is subject to equitable tolling,
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Case: 16-1944

see

Document: 00117154121

Bowen

v.

City

of

New

Page: 15

York,

Date Filed: 05/12/2017

476

U.S.

467,

480

Entry ID: 6091699

(1986),

Plaintiff has made no arguments suggesting that this doctrine
should apply to the facts of her case.

We thus deem waived any

argument Plaintiff could have made to that effect.
IV.
For

the

reasons

described

above,

we

AFFIRM

the

district court's decision and order dismissing Plaintiff's claim
as untimely.

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