United States District Court, D. Maine
RECOMMENDED DECISION ON MOTION TO DISMISS
H. Rich III United States Magistrate Judge
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
Applicable Legal Standards
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
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).
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).
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
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,
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