Grant v. Colvin

Filing

OPINION issued by Juan R. Torruella, Appellate Judge; Sandra L. Lynch, Appellate Judge and William J. Kayatta , Jr., Appellate Judge. Per Curiam. Unpublished. [16-2188]

Case: 16-2188

Document: 00117190164

Page: 1

Date Filed: 08/16/2017

Entry ID: 6113639

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit
No. 16-2188
DAVID PEABODY GRANT,
Plaintiff, Appellant,
v.
NANCY A. BERRYHILL,*
Acting Commissioner of Social Security Administration,
Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before
Torruella, Lynch, and Kayatta,
Circuit Judges.

Riley L. Fenner, on brief for appellant.
Timothy S. Bolen, 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.

August 16, 2017

*

Pursuant to Fed. R. App. P. 43(c)(2), Acting Commissioner
Nancy A. Berryhill is substituted for former Acting Commissioner
Carolyn W. Colvin as defendant-appellee.

Case: 16-2188

Document: 00117190164

Per Curiam.

Page: 2

Date Filed: 08/16/2017

Entry ID: 6113639

Claimant-Appellant David Peabody Grant

("Grant") appeals from the dismissal, on statute of limitations
grounds, of his complaint, which challenged the denial of his claim
for social security disability benefits.

Because Grant failed to

rebut the statutory presumption that the day of receipt of notice
of the decision by the Appeals Council was five days after it was
issued, we agree that his complaint was untimely filed and thus,
we affirm.
I. Background
Grant filed for social security disability insurance
benefits ("SSDI") on October 22, 2012.

His claim was denied by

the Social Security Administration on January 24, 2013, and again
on reconsideration on April 16, 2013.

A hearing was held before

an administrative law judge ("ALJ") on June 12, 2014.1

On July

28, 2014, the ALJ issued an unfavorable decision finding Grant not
disabled, and therefore ineligible for SSDI.

Grant sought review

from the ALJ's decision before the Appeals Council.

On July 21,

2015, by Notice of Appeals Council Action (the "Notice"), the
Appeals Council denied the request for review, making the ALJ's
decision final.

The notice included the following information:

1

During the course of this hearing, Grant was represented by Mr.
Peter Clifford, a non-attorney representative.
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Time to File a Civil Action
You have 60 days to file a civil action (ask for court
review).
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
than 60 days to ask for court review. You must make
the request in writing and give your reason(s) in the
request.
On September 28, 2015, Grant filed the current civil
action in the United States District Court for the District of
Maine against the Acting Commissioner of the Social Security
Administration (the "Commissioner") asking for judicial review of
the

Commissioner's

final

decision.

On

March

4,

2016,

the

Commissioner filed a motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(6), alleging that the complaint was filed untimely pursuant
to 42 U.S.C. § 405(g)(2015).

On June 27, 2016, Magistrate Judge

John H. Rich issued a Report and Recommendation on the Motion to
Dismiss, where he recommended that the motion be granted and the
complaint dismissed because Grant was unable to demonstrate that
the complaint was timely filed.
court

made

a

de

novo

On July 20, 2016, the district

determination

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and

concurred

with

the

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Magistrate's recommendation granting the Commissioner's motion to
dismiss.

This appeal followed.
II. Analysis
Grant argues that the district court erred when it

dismissed his complaint as untimely.

He posits that he met his

burden of rebutting the statutory presumption by showing that he
received the Notice of the decision by the Appeals Council more
than five days after the date of such Notice and that he filed his
complaint within sixty days of having received the Notice.
Our review of the district court's grant of a Rule
12(b)(6) motion is de novo.

O'Shea ex rel. O'Shea v. UPS Ret.

Plan, 837 F.3d 67, 77 (1st Cir. 2016).

In our review, we take

"all factual allegations in the complaint as true and draw[] all
reasonable inferences in the non-moving party's favor."

Id.

Congress has prescribed the exclusive procedures and
conditions that govern judicial review of a Commissioner's final
decision.
to

42 U.S.C. § 405(g) provides a claimant with sixty days

initiate

decision.

a

civil

This

action

sixty-day

seeking
limitation

judicial

review

of

such

period

begins

after

a

claimant receives the Appeals Council's notice of denial of request
for review.

See 20 C.F.R. § 422.210(c) (1997).

At the same time,

this regulation "creates a presumption that the date of receipt is
five days after the date on the notice unless the claimant makes
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'a reasonable showing to the contrary.'"

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McLaughlin v. Astrue,

443 F. App'x 571, 572 (1st Cir. 2011) (quoting 20 C.F.R. §
422.210(c)).

If a claimant is able to rebut the presumption, then

the Commissioner "must prove that [the claimant] received actual
notice more than 60 days prior to filing the complaint in district
court."

Id. at 575 (alteration in original) (citation omitted);

see also Matsibekker v. Heckler, 738 F.2d 79, 81 (2d Cir. 1984).
The sixty-day filing period "is not jurisdictional, but
rather constitutes a period of limitations."

Bowen v. City of New

York, 476 U.S. 467, 478 (1986) (citing Mathews v. Eldridge, 424
U.S. 319, 328 n.9 (1976)).

This limitation period constitutes "a

condition on the waiver of sovereign immunity and thus must be
strictly construed."

Id. at 479.

Consequently, 42 U.S.C. §

405(g) "generally precludes late judicial challenge to the denial
of benefits."

Piscopo v. Sec'y of Health & Human Servs., No. 93-

2326, 1994 WL 283919, at *3 (1st Cir. 1994) (citation omitted).
The record before us shows that the Appeal Council's
Notice denying Grant's request for review is dated July 21, 2015.
Accordingly, the presumed five-day period ended on July 26, 2015.
The sixty-day period to file a complaint for judicial review of
the Commissioner's determination concluded on Thursday, September

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24, 2015.2

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Grant filed his complaint on Monday, September 28,

2015.
Grant argues that the sixty-day period started to run on
the date of his alleged actual receipt of the Appeal's Council
Notice, on or about August 1, 2015, and therefore lasted until
September 30, 2015.

In order to rebut the presumption of receipt

on July, 26, 2015, Grant filed his own affidavit and a facsimile
transmission.

In these documents Grant contends that he "received

notice of the Appeals Council's decision . . . on or after August
1, 2015."

However, the facsimile transmission does not provide

any evidence supporting a date of receipt, but instead only notes
when Grant contacted his current attorney.

The only relevant

evidence claimant has provided is his own affidavit.
It has been "fairly well-accepted that affidavits that
merely state a date of receipt more than five days after the
Appeals Council's notice, or allege non-receipt within the five
days,

are

not

presumption."

sufficient,

standing

alone,

to

rebut

the

McLaughlin, 443 F. App'x at 574; see also McCall

v. Bowen, 832 F.2d 862, 864 (5th Cir. 1987).

In this case, Grant

merely recalls receiving the notice on or after August 1, 2015.
Yet, this is insufficient to rebut the presumption that the notice

2

Grant did not dispute this calculation.
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was received within five days of its issuance.

Entry ID: 6113639

Cf. e.g., Cook v.

Comm'r of Soc. Sec., 480 F.3d 432, 436-37 (6th Cir. 2007).

Without

a reasonable showing to the contrary by Grant, it is presumed that
he received notice on July 26, 2015.

The last day to file a

complaint

of

seeking

judicial

review

the

Commissioner's

determination under § 405(g) was September 24, 2015.

Grant filed

his complaint on September 28, 2015, and thus it was four days
late.
Grant further contends that the Commissioner makes the
presumption that the Notice was received within five days after it
was

issued

without

providing

corroborating

evidence

that

the

Appeals Council's Notice was actually mailed to him on July 21,
2015.

This argument, however, is inapposite.

the burden of rebutting the presumption.
derived

from

any

assessment

of

It is Grant who had

This presumption is not

evidence

provided

Commissioner, but rather from the agency's regulation.
§

422.210(c).

Only

if

a

claimant

successfully

by

the

20 C.F.R.
rebuts

the

presumption must "the Commissioner . . . 'prove that [the claimant]
received actual notice more than 60 days prior to filing the
complaint in district court.'"

McLaughlin, 443 F. App'x at 575

(emphasis omitted) (citing Matsibekker, 738 F.2d at 81).

That was

not the case here.3

3

We express no opinion on the matter of whether the triggering
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III. Conclusion
Given the foregoing, Grant's complaint was untimely
filed, and for that reason we affirm the judgment of the district
court.

date for the sixty-day period begins on the date the claimant or
his or her attorney receives the notice, but take note that
another circuit has determined "that notice received by either
the individual or the individual's attorney, whichever occurs
first, triggers the sixty-day limitations period." Bess v.
Barnhart, 337 F.3d 988, 990 (8th Cir. 2003).
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