Manchester v . SSA CV-04-476-PB 10/06/05
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Russell Manchester
v. Civil N o . 04-CV-476-PB Opinion N o . 2005 DNH 139 Jo Anne B . Barnhart,Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Russell Manchester appeals a decision of the Commissioner of
the Social Security Administration denying his request for Social
Security Disability Insurance benefits under Title II of the
Social Security Act, 42 U.S.C. § 423. The Commissioner moves to
dismiss the complaint as untimely filed. For the reasons set
forth below, I grant the Commissioner’s Motion to Dismiss. (Doc.
No. 4 ) .
I. BACKGROUND
On June 2 5 , 2003, an Administrative Law Judge (ALJ) denied
Manchester’s claim for disability insurance benefits but granted his claim for Medicare benefits. Mot. to Dismiss, Ex. 1 (Doc.
No. 4 ) . Manchester requested review of this decision, which the
Appeals Council denied. Mot. to Dismiss, Ex. 2 (Doc. N o . 4 ) .
Manchester received notice of the Appeals Council’s decision on
October 1 2 , 2004. Compl. ¶ I I . The notice stated that
Manchester had the right to seek review of the ALJ’s decision by
commencing a civil action in district court within sixty days of
receipt of the notice. Mot. to Dismiss, Ex. 2 (Doc. N o . 4 ) .
Manchester filed a civil action in this court on December
1 6 , 2004. Compl. at 3 . On the same day, he submitted a request
to the Appeals Council for an extension of time to file his civil
action. P l . O b j . to Mot. to Dismiss ¶ 2 (Doc. N o . 9 ) . The
Appeals Council denied his request for an extension on February
2 5 , 2005. Id. ¶ 3 . The Commissioner now moves to dismiss the
complaint due to Manchester’s failure to file his claim within
the sixty-day limitation period established by 42 U.S.C. §
405(g).
II. STANDARD OF REVIEW
When considering a motion to dismiss, I must “accept as true
all well-pleaded allegations and give [the plaintiff] the benefit
-2- of all reasonable inferences.” Cooperman v . Individual, Inc.,
171 F.3d 4 3 , 46 (1st Cir. 1999). “Granting a motion to dismiss
based on a limitations defense is entirely appropriate when the
pleader’s allegations leave no doubt that an asserted claim is
time-barred.” Edes v . Verizon Communications, Inc., 417 F.3d
133, 137 (1st Cir. 2005) (quotation omitted).
III. DISCUSSION
The Commissioner argues that Manchester’s complaint should
be dismissed because he filed it more than sixty days after he
received notice of the Appeals Council’s decision. 42 U.S.C. §
405(g) provides:
Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision 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. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides . . .
Section 405(g) operates as a statute of limitation on the
time period in which a claimant may appeal a final decision of
-3- the Commissioner. Bowen v . City of New York, 476 U.S. 4 6 7 , 478
(1986). “[T]he statute of limitations embodied in § 405(g) is a
mechanism by which Congress was able to move cases to speedy
resolution in a bureaucracy that processes millions of claims
annually. Thus, the limitation serves both the interest of the
claimant and the interest of the Government.” Id. at 481.
Although § 405(g) states that the limitation period begins
to run when the notice is mailed, 20 C.F.R. § § 422.210(c) more
generously provides that any civil action to appeal a final
decision of the Commissioner “must be instituted within 60 days
after . . . notice of the decision by the Appeals Council is
received by the individual, . . . except that this time may be
extended by the Appeals Council upon a showing of good cause.”
(Emphasis added). There is a rebuttable presumption that the
claimant received the notice five days after the date of the
notice, “unless there is a reasonable showing to the contrary.”
Id.
Here, Manchester acknowledges that he received notice of the
Appeals Council’s decision on October 1 2 , 2004. Compl. ¶ I I .
Thus, he was required to file his complaint on or before December
-4- 1 0 , 2004 1 in order for it to be timely.2
Manchester concedes that he filed his complaint and his
request for an extension of time to file on December 1 6 , 2004,
six days after the deadline. He argues, however, that I should
apply the doctrine of equitable tolling to extend the limitation
period because he was attempting to get new information from the
Veteran’s Administration concerning his special veteran’s
preference employment prior to filing his complaint. P l . O b j . to
Mot. to Dismiss ¶ 3 . He also maintains that the Appeals Council
improperly denied his request for an extension without
considering the reasons for his delay.
The Supreme Court has held that courts may extend the
limitation period under § 405(g) when “the equities in favor of
1 The Commissioner incorrectly calculates the due date as December 1 1 , 2004, and notes that because that day was a Saturday, Manchester had until Monday, December 1 3 , 2004 to file his complaint. See Fed. R. Civ. P. 6 ( a ) . Under either calculation, Manchester’s filing on December 1 6 , 2004 was late. 2 Manchester initially argued that his complaint was timely filed within 65 days of the date of decision. Compl. ¶ I I . Manchester now apparently concedes that the limitation period is 60 days from the date of receipt of notice from the Appeals Council. See P l . O b j . to Mot. to Dismiss ¶¶ 1 , 8 , 1 5 ; see also Worthy v . Heckler, 611 F. Supp. 2 7 1 , 273 (W.D.N.Y. 1985) (noting that presumption regarding date of receipt does not change the limitation period from 60 to 65 days).
-5- tolling the limitations period are ‘so great that deference to
the agency's judgment is inappropriate.’” City of New York, 476
U.S. at 480 (quoting Mathews v . Eldridge, 424 U.S. 319, 330
(1976)). “Generally, equitable circumstances that might toll a
limitations period involve conduct (by someone other than the
claimant) that is misleading or fraudulent.” Turner v . Bowen,
862 F.2d 7 0 8 , 710 (8th Cir. 1988).
For example, in Bowen v . City of New York, the Supreme Court
held that it was appropriate for the district court to toll the
60-day limitation period in a class action challenging an
internal government policy. City of New York, 476 U.S. at 480.
The class members claimed that use of an unlawful, unpublished
policy resulted in denials of benefits for numerous claimants.
Id. at 473. The Court reasoned that although the claimants knew
they had been denied benefits, “they did not and could not know
Free access — add to your briefcase to read the full text and ask questions with AI
Manchester v . SSA CV-04-476-PB 10/06/05
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Russell Manchester
v. Civil N o . 04-CV-476-PB Opinion N o . 2005 DNH 139 Jo Anne B . Barnhart,Commissioner, Social Security Administration
MEMORANDUM AND ORDER
Russell Manchester appeals a decision of the Commissioner of
the Social Security Administration denying his request for Social
Security Disability Insurance benefits under Title II of the
Social Security Act, 42 U.S.C. § 423. The Commissioner moves to
dismiss the complaint as untimely filed. For the reasons set
forth below, I grant the Commissioner’s Motion to Dismiss. (Doc.
No. 4 ) .
I. BACKGROUND
On June 2 5 , 2003, an Administrative Law Judge (ALJ) denied
Manchester’s claim for disability insurance benefits but granted his claim for Medicare benefits. Mot. to Dismiss, Ex. 1 (Doc.
No. 4 ) . Manchester requested review of this decision, which the
Appeals Council denied. Mot. to Dismiss, Ex. 2 (Doc. N o . 4 ) .
Manchester received notice of the Appeals Council’s decision on
October 1 2 , 2004. Compl. ¶ I I . The notice stated that
Manchester had the right to seek review of the ALJ’s decision by
commencing a civil action in district court within sixty days of
receipt of the notice. Mot. to Dismiss, Ex. 2 (Doc. N o . 4 ) .
Manchester filed a civil action in this court on December
1 6 , 2004. Compl. at 3 . On the same day, he submitted a request
to the Appeals Council for an extension of time to file his civil
action. P l . O b j . to Mot. to Dismiss ¶ 2 (Doc. N o . 9 ) . The
Appeals Council denied his request for an extension on February
2 5 , 2005. Id. ¶ 3 . The Commissioner now moves to dismiss the
complaint due to Manchester’s failure to file his claim within
the sixty-day limitation period established by 42 U.S.C. §
405(g).
II. STANDARD OF REVIEW
When considering a motion to dismiss, I must “accept as true
all well-pleaded allegations and give [the plaintiff] the benefit
-2- of all reasonable inferences.” Cooperman v . Individual, Inc.,
171 F.3d 4 3 , 46 (1st Cir. 1999). “Granting a motion to dismiss
based on a limitations defense is entirely appropriate when the
pleader’s allegations leave no doubt that an asserted claim is
time-barred.” Edes v . Verizon Communications, Inc., 417 F.3d
133, 137 (1st Cir. 2005) (quotation omitted).
III. DISCUSSION
The Commissioner argues that Manchester’s complaint should
be dismissed because he filed it more than sixty days after he
received notice of the Appeals Council’s decision. 42 U.S.C. §
405(g) provides:
Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision 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. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides . . .
Section 405(g) operates as a statute of limitation on the
time period in which a claimant may appeal a final decision of
-3- the Commissioner. Bowen v . City of New York, 476 U.S. 4 6 7 , 478
(1986). “[T]he statute of limitations embodied in § 405(g) is a
mechanism by which Congress was able to move cases to speedy
resolution in a bureaucracy that processes millions of claims
annually. Thus, the limitation serves both the interest of the
claimant and the interest of the Government.” Id. at 481.
Although § 405(g) states that the limitation period begins
to run when the notice is mailed, 20 C.F.R. § § 422.210(c) more
generously provides that any civil action to appeal a final
decision of the Commissioner “must be instituted within 60 days
after . . . notice of the decision by the Appeals Council is
received by the individual, . . . except that this time may be
extended by the Appeals Council upon a showing of good cause.”
(Emphasis added). There is a rebuttable presumption that the
claimant received the notice five days after the date of the
notice, “unless there is a reasonable showing to the contrary.”
Id.
Here, Manchester acknowledges that he received notice of the
Appeals Council’s decision on October 1 2 , 2004. Compl. ¶ I I .
Thus, he was required to file his complaint on or before December
-4- 1 0 , 2004 1 in order for it to be timely.2
Manchester concedes that he filed his complaint and his
request for an extension of time to file on December 1 6 , 2004,
six days after the deadline. He argues, however, that I should
apply the doctrine of equitable tolling to extend the limitation
period because he was attempting to get new information from the
Veteran’s Administration concerning his special veteran’s
preference employment prior to filing his complaint. P l . O b j . to
Mot. to Dismiss ¶ 3 . He also maintains that the Appeals Council
improperly denied his request for an extension without
considering the reasons for his delay.
The Supreme Court has held that courts may extend the
limitation period under § 405(g) when “the equities in favor of
1 The Commissioner incorrectly calculates the due date as December 1 1 , 2004, and notes that because that day was a Saturday, Manchester had until Monday, December 1 3 , 2004 to file his complaint. See Fed. R. Civ. P. 6 ( a ) . Under either calculation, Manchester’s filing on December 1 6 , 2004 was late. 2 Manchester initially argued that his complaint was timely filed within 65 days of the date of decision. Compl. ¶ I I . Manchester now apparently concedes that the limitation period is 60 days from the date of receipt of notice from the Appeals Council. See P l . O b j . to Mot. to Dismiss ¶¶ 1 , 8 , 1 5 ; see also Worthy v . Heckler, 611 F. Supp. 2 7 1 , 273 (W.D.N.Y. 1985) (noting that presumption regarding date of receipt does not change the limitation period from 60 to 65 days).
-5- tolling the limitations period are ‘so great that deference to
the agency's judgment is inappropriate.’” City of New York, 476
U.S. at 480 (quoting Mathews v . Eldridge, 424 U.S. 319, 330
(1976)). “Generally, equitable circumstances that might toll a
limitations period involve conduct (by someone other than the
claimant) that is misleading or fraudulent.” Turner v . Bowen,
862 F.2d 7 0 8 , 710 (8th Cir. 1988).
For example, in Bowen v . City of New York, the Supreme Court
held that it was appropriate for the district court to toll the
60-day limitation period in a class action challenging an
internal government policy. City of New York, 476 U.S. at 480.
The class members claimed that use of an unlawful, unpublished
policy resulted in denials of benefits for numerous claimants.
Id. at 473. The Court reasoned that although the claimants knew
they had been denied benefits, “they did not and could not know
that those adverse decisions had been made on the basis of a
systematic procedural irregularity that rendered them subject to
court challenge.” Id. at 480-81. Thus, the district court
properly included claimants in the class who had not sought
judicial review within the 60-day limitation period. Id. at 481-
82.
-6- Other courts, in contrast, have refused to extend the
limitation period when a claimant fails to exercise reasonable
diligence in appealing an unfavorable administrative decision.
See, e.g., Pereira v . Shalala, 841 F. Supp. 323, 327 (C.D. Cal.
1993) (dismissing complaint that was filed late despite finding
that correspondence concerning the disability benefits awarded
was “likely to confuse and deceive a reasonable claimant.”)
“Federal courts have typically extended equitable relief only
sparingly. . . . We have generally been much less forgiving in
receiving late filings where the claimant failed to exercise due
diligence in preserving his legal rights.” Irwin v . Dep’t of
Veterans Affairs, 498 U.S. 8 9 , 96 (1990). This is consistent
with the principle that, as a condition on the government’s
waiver of sovereign immunity, the sixty-day statute of limitation
must be strictly construed. City of New York, 476 U.S. at 479.
Manchester relies upon two unpublished opinions from this
circuit to bolster his argument that the equities support tolling
the statute of limitation in this case.3 See Boothby v . Soc.
3 Manchester also cites Matos v . Sec’y of Health, Educ. & Welfare, 581 F.2d 2 8 2 , 287 n.8 (1st Cir. 1978), for the proposition that courts will consider proof of a mental impairment as a factor in tolling the limitation period. In that
-7- Sec. Admin. Comm’r, 132 F.3d 30 (table), 1997 WL 727535 (1st Cir.
Nov. 1 8 , 1997); Blake v . Soc. Sec. Admin., N o . Civ. 02-112-B,
2003 WL 22703220 (D. N.H. Nov. 1 4 , 2003). In both cases, the
claimants suffered from mental impairments that could have
prevented them from understanding the administrative review
process. Boothby, 1997 WL 727535, at * 2 ; Blake, 2003 WL
22703220, at * 1 . The cases were remanded for further
consideration by the Social Security Administration because the
claimants were not given sufficient opportunities to prove to the
ALJ that their mental impairments prevented them from timely
requesting review of prior decisions that denied them social
security benefits. Boothby, 1997 WL 727535, at * 2 ; Blake, 2003
WL 22703220, at * 3 ; see also Canales, 936 F.2d at 759 (remanding
case to permit claimant to present evidence that mental
impairment interfered with her ability to seek timely judicial
review).
case, however, the First Circuit declined to consider the effect of the claimant’s alleged mental disability because there was insufficient evidence to show that she was unable to pursue her administrative remedies during the limitation period. Id. at 287.
-8- Neither Boothby nor Blake compels a finding that the
circumstances of this case warrant tolling of the sixty-day
limitation period. Manchester has not alleged that a mental
impairment interfered with his ability to understand or follow
the administrative review process.4 Nor has Manchester alleged
any inappropriate conduct on the Commissioner’s part that would
have prevented him from filing a timely appeal. Instead, his
request to the Appeals Council for an extension of time to file
maintained that his complaint was filed late due to his efforts
to obtain additional information from the Veteran’s
Administration.
Furthermore, Manchester was represented by experienced
counsel who has handled numerous disability benefits claims.
See, e.g., Blake, 2003 WL 22703220. Manchester nevertheless
failed to request an extension of time to file a civil action
during the sixty-day limitation period. I thus find that this is
not a case where “the equities in favor of tolling the
limitations period are so great that deference to the agency's
4 The first mention of Manchester’s mental impairment appears in his Objection to the Commissioner’s Motion to Dismiss at ¶ 1 0 . Manchester does not explain how this mental impairment might have interfered with his ability to file a timely claim.
-9- judgment is inappropriate.” City of New York, 476 U.S. at 480
(quotation omitted). Because the Appeals Council’s denial of a
request for an extension of time to file is not subject to
judicial review, I need not address Manchester’s argument that
the Council failed to consider the reasons for his delay. See 42
U.S.C. § 405(g); Boock v . Shalala, 48 F.3d 3 4 8 , 351 (8th Cir.
1995).
IV. CONCLUSION
The Commissioner’s Motion to Dismiss (Doc. N o . 4 ) is
granted. The clerk is instructed to enter judgment accordingly.
SO ORDERED.
/s/Paul Barbadoro Paul Barbadoro United States District Judge
October 6, 2005
cc: Raymond J. Kelly, Esq. David L . Broderick, Esq.
-10-