VALLIERE v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER

Filing 14

REPORT AND RECOMMENDED DECISION re 11 MOTION to Dismiss for Lack of Jurisdiction filed by SOCIAL SECURITY ADMINISTRATION COMMISSIONER Objections to R&R due by 11/13/2017 By MAGISTRATE JUDGE JOHN H. RICH III. (akr)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DAWN BERRY VALLIERE,
Plaintiff
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant

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No. 2:17-cv-00189-JDL

RECOMMENDED DECISION ON MOTION TO DISMISS
Defendant Nancy A. Berryhill, the acting commissioner of Social Security, moves to
dismiss the plaintiff’s complaint challenging the denial of her application for Social Security
benefits on the basis that it was untimely filed pursuant to 42 U.S.C. § 405(g) and, therefore, fails
to state a claim upon which relief can be granted. See Motion To Dismiss (“Motion”) (ECF No.
11); Memorandum in Support of Motion to Dismiss (“Memorandum”) (ECF No. 11-1), attached
thereto, at 2-5. For the reasons that follow, I recommend that the court grant the Motion.
I. Applicable Legal Standards
A. Rule 12(b)(6)1
The Supreme Court has stated:
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. Factual allegations must
be enough to raise a right to relief above the speculative level.

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A motion to dismiss based upon a statute of limitations must be construed to invoke Federal Rule of Civil Procedure
12(b)(6). Ritchie v. Apfel, No. 98-226-B, 1999 WL 1995198, at *1 (D. Me. Mar. 11, 1999).

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Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and internal punctuation
omitted). This standard requires the pleading of “only enough facts to state a claim to relief that
is plausible on its face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In ruling on a motion to dismiss under Rule 12(b)(6), a court assumes the truth of all of the
well-pleaded facts in the complaint and draws all reasonable inferences in favor of the plaintiff.
Román-Oliveras v. Puerto Rico Elec. Power Auth., 655 F.3d 43, 45 (1st Cir. 2011). “There is,
however, a narrow exception for documents the authenticity of which are not disputed by the
parties; for official public records; for documents central to plaintiffs’ claim; or for documents
sufficiently referred to in the complaint.” Id. (citation and internal quotation marks omitted).
Although a pro se plaintiff’s complaint is subject to “less stringent standards than formal
pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), the complaint may not
consist entirely of “conclusory allegations that merely parrot the relevant legal standard[,]” Young
v. Wells Fargo Bank, N.A., 717 F.3d 224, 231 (1st Cir. 2013). See also Ferranti v. Moran, 618
F.2d 888, 890 (1st Cir. 1980) (explaining that the liberal standard applied to the pleadings of pro
se plaintiffs “is not to say that pro se plaintiffs are not required to plead basic facts sufficient to
state a claim”).
B. Section 405(g)
Section 205(g) of the Social Security Act provides that an individual may obtain review of
a final decision of the commissioner “by a civil action commenced within sixty days after the
mailing to him of notice of such decision or within such further time as the Commissioner of Social
Security may allow.” 42 U.S.C. § 405(g). Under the applicable regulation, a claimant is presumed
to have received such notice within “[five] days after the date of such notice, unless there is a
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reasonable showing to the contrary.” 20 C.F.R. § 422.210(c). Accordingly, absent an extension
by the Appeals Council predicated “upon a showing of good cause,” id., a claimant has 65 days
from the date of the commissioner’s final decision to commence a timely action for review of that
decision.
The Congressional intent embodied in 42 U.S.C. § 405(g) was “to impose a 60-day
limitation upon judicial review of the [Commissioner’s] final decision on the initial
claim for benefits.” Califano v. Sanders, 430 U.S. 99, 108 (1977). The 60-day
filing period is not jurisdictional, but rather amounts to a statute of limitation and
compliance with it is a condition imposed on the United States’ waiver of sovereign
immunity that must be strictly construed. Piscopo v. Sec’y of Health & Human
Servs., No. 93-2326, 1994 WL 283919, at *3 . . . (1st Cir. June 27, 1994) . . . .
The 60-day limit is not absolute, however, because the statute does vest authority
in the Commissioner to extend that period in appropriate cases. Because Congress
has vested authority in the Commissioner to extend the 60-day limitations period,
courts should extend the filing period only in cases “where the equities in favor of
tolling the limitations period are so great that deference to the agency’s judgment
is inappropriate.” Bowen v. City of New York, 476 U.S. 467, 480 (1986) (quoting
Mathews v. Eldridge, 424 U.S. 319, 330 (1976)).
Strong v. Soc. Sec. Admin. Comm’r, No. 2:10-cv-00427-GZS, 2011 WL 534042, at *2 (D. Me.
Jan. 26, 2011).
Equitable tolling of the statute of limitations is appropriate upon a litigant’s showing “that
he has been pursuing his rights diligently” and “that some extraordinary circumstance” prevented
him from timely filing his lawsuit. Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005).
II. Factual Background
On March 7, 2016, an administrative law judge (“ALJ”) issued a decision denying the
plaintiff’s claim for Social Security disability benefits. Declaration of Marie Cousins, Court Case
Preparation and Review Branch 2, Office of Disability Adjudication and Review, Social Security
Administration (“Cousins Decl.”) (ECF No. 11-2), attached to Motion, ¶ 3(d) & Exh. 6 (ECF No.
11-8) thereto. The plaintiff requested review of that decision. Cousins Decl. ¶ 3(d). In a Notice
of Appeals Council Action (“Notice”) dated March 15, 2017, the Appeals Council notified the
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plaintiff that it had declined her request for review of the ALJ’s decision, indicating that her
representative had been copied on the Notice. Id. ¶ 3(e) & Exh. 8 (ECF No. 11-10) thereto. The
Notice also informed the plaintiff that (i) she had the right to commence a civil action within 60
days from the date of receipt of the Notice, (ii) the commissioner would assume that she had
received the Notice within five days of the date set forth thereon unless she showed otherwise, and
(iii) if she could not meet that deadline, she could ask the Appeals Council for an extension of time
based on a good reason or reasons. Id.
The plaintiff did not file a request for an extension of time within which to file a civil
action. Cousins Decl. ¶ 3(f). Her deadline to file her complaint was therefore 65 days after the
date of the Notice, or May 19, 2017. She filed her pro se complaint on May 25, 2017. Complaint
(ECF No. 1). Nothing therein addresses the timeliness of that filing. Id.
The plaintiff, still proceeding pro se, does not dispute that her complaint was untimely
filed. See Response to Mo[]tion To Dismiss (“Response”) (ECF No. 12). Instead, she asserts that
she faced mental health barriers and had unmet needs that placed her at a disadvantage in filing a
timely appeal. See id. She attaches letters from a Health Affiliates Maine case manager and social
worker. See Letter dated Aug. 14, 2017, from Cristie Therrien, MHRT/C (“Therrien Letter”) (ECF
No. 12-1), attached to Response; Letter dated Aug. 16, 2017, from Robin Deatrich, LCSW, CH
(“Deatrich Letter”) (ECF No. 12-2), attached to Response.
Both Therrien and Deatrich state that the plaintiff believed that her appeal was timely filed
given the nature of her documented disabilities. Id. They state that Therrien assisted the plaintiff
in attempting to find an attorney but was unsuccessful in doing so, and that it would be
unreasonable to expect her to pursue her appeal pro se given her mental and physical health
conditions. See id. Both Therrien and Deatrich also indicate that the process of completing benefit

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paperwork or navigating through benefit processes triggers, or would trigger, the plaintiff’s posttraumatic stress disorder, exacerbating her mental and physical symptoms. See id. They state that
the plaintiff has been approved by the State of Maine for “section 17 services” because she is
unable to manage her daily living needs independently and is at risk of homelessness. See id.
III. Discussion
The plaintiff neither contends that she sought a deadline extension from the Appeals
Council nor seeks to rebut the presumption that she received the Notice within five days from the
date of its issuance. See Response; 20 C.F.R. § 416.1482 (claimant may request that Appeals
Council extend deadline to file complaint in federal court for good cause shown); McLaughlin v.
Astrue, 443 Fed. Appx. 571, 574-75 (1st Cir. 2011) (if a claimant rebuts the presumption of receipt
of notice, the burden shifts to the commissioner “to prove that the claimant received actual notice
more than 60 days prior to filing the complaint in district court”) (citation and internal punctuation
omitted). Instead, she effectively seeks equitable tolling of the statute of limitations. See
Response. The commissioner argues that she fails to make the showing necessary to warrant that
relief. See Reply to Plaintiff’s Response in Opposition to Defendant’s Motion To Dismiss
(“Reply”) (ECF No. 13) at 1-3. I agree.
“It is well-established that the 60-day filing period set forth in 42 U.S.C. § 405(g) is not
jurisdictional, but rather constitutes a statute of limitations.” Piscopo, 1994 WL 283919, at *3.
“As such, the limitation period constitutes a condition on the waiver of sovereign immunity that
must be strictly construed.” Id. “Thus, 42 U.S.C. § 405(g) generally precludes late judicial
challenge to the denial of benefits.” Id. (citation and internal quotation marks omitted).
As the commissioner observes, see Reply at 1, the First Circuit has “identified five factors
that should guide courts in evaluating a claimant’s entitlement to [equitable] tolling[,]” Jobe v.
INS, 238 F.3d 96, 100 (1st Cir. 2001). These are:
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(1) a lack of actual notice of a time limit; (2) a lack of constructive notice of a time
limit; (3) diligence in the pursuit of one’s rights; (4) an absence of prejudice to a
party opponent; and (5) the claimant’s reasonableness in remaining ignorant of the
time limit.
Id. “The fundamental principle is that equitable tolling is appropriate only when the circumstances
that cause a party to miss a filing deadline are out of his hands.” Id. (citation and internal
punctuation omitted). “For this reason, equitable tolling is unavailable where a party fails to
exercise due diligence.” Id. (citation and internal punctuation omitted).
The commissioner argues that, because the plaintiff does not allege that any of the five
factors apply, the court should assess the merits of her claim on the basis of the fundamental
principle that tolling generally is appropriate only when circumstances beyond a claimant’s control
prevent her from complying with the statute of limitations. See Reply at 2. She contends that the
plaintiff fails to make this showing because, despite her professed difficulties, she was able to file
her complaint on May 25, 2017, and fails to explain why she could not have timely filed it six days
earlier. See id. at 2-3.
While the plaintiff does not assert that any of the relevant five factors applies, her pro se
response can be construed to implicate two of them: her diligence and the reasonableness of her
ignorance of the time limit. Both Therrien and Deatrich state that the plaintiff attempted, with
Therrien’s assistance, to find an attorney but was unsuccessful in doing so. See Therrien Letter;
Deatrich Letter. Therrien asserts that “[i]t would be unreasonable to require the plaintiff to
navigate through the disability claims process, given her mental and physical health conditions[,]”
and Deatrich asserts that “[i]t would be impossible[,]” given those conditions, “for [her] to
thoroughly understand the disability claims process[.]” Id. Therrien and Deatrich both state that
the plaintiff did not know that her appeal was untimely filed, believing it to have been timely filed
given the nature of her documented disabilities. See id.
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Nonetheless, even so construed, the plaintiff’s response does not offer any evidence that
circumstances beyond her control prevented her from complying with the statute of limitations.
Neither an inability to find an attorney nor mental illness, on its face, constitutes a reason to toll
the statute of limitations. See, e.g., Al-Wardi v. Command Airways/Am. Eagle, No. 94-1801, 1994
WL 584548, at *1 (1st Cir. Oct. 25, 1994) (district court did not err in concluding that litigant’s
pro se status did not carry “sufficient equitable weight” to justify equitable tolling); Muldoon v.
Astrue, 590 F.Supp.2d 188, 194 (D. Mass. 2008) (“[T]here is no absolute rule requiring equitable
tolling for mental disability claims.”).
Fundamentally, as the commissioner argues, see Reply at 2-3, the plaintiff does not explain
why she was able to file her complaint on May 25, 2017, but not six days earlier. Nor does she
explain how her mental illness – as opposed to mistake or ignorance – prevented her from realizing
that her appeal was untimely filed. That is fatal to her bid for equitable tolling. See, e.g., Muldoon,
590 F. Supp.2d at 194 (“Muldoon has not alleged any facts to show that mental illness is the reason
for his failure to file his request to reopen before May 29, 2001.”); Merced v. Astrue, No. 1010137-JLT, 2015 WL 5146323, at *3 (D. Mass. Oct. 29, 2010) (“Mere error, inadvertence, or
mistake cannot justify tolling the statute of limitations, especially one that must be strictly
construed[,] because otherwise virtually every statute of limitations would be rendered
meaningless.”) (citation and internal quotation marks omitted).
Because nothing in the plaintiff’s complaint addresses the untimeliness of its filing, and
she does not otherwise make a sufficient showing of entitlement to equitable tolling of the missed
deadline, her complaint fails to state a claim upon which relief can be granted, warranting its
dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6).
IV. Conclusion
For the foregoing reasons, I recommend that the court GRANT the Motion.
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NOTICE
A party may file objections to those specified portions of a magistrate judge’s report or
proposed findings or recommended decisions entered pursuant to 28 U.S.C. § 636(b)(1)(B) for
which de novo review by the district court is sought, together with a supporting memorandum
and request for oral argument before the district judge, if any is sought, within fourteen (14)
days after being served with a copy thereof. A responsive memorandum and any request for
oral argument before the district judge shall be filed within fourteen (14) days after the filing of
the objection.
Failure to file a timely objection shall constitute a waiver of the right to de novo review
by the district court and to appeal the district court’s order.
Dated this 29th day of October, 2017.

/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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