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Bean v. Colvin

United States District Court, D. Maine

November 14, 2016

DOUGLAS ALAN BEAN, Plaintiff
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

          RECOMMENDED DECISION ON MOTION TO DISMISS

          John H. Rich III United States Magistrate Judge

         The defendant, the acting commissioner of Social Security, moves to dismiss this appeal from the denial of the plaintiff's application for Social Security benefits, on the ground that it was untimely filed. 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.

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).

         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 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. Social 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 ...


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