FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEBRUARY 27, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-15134

Non-Argument Calendar

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D. C. Docket No. 04-00488-CV-OC-10-GRJ

WESLEY S. WALLER, 

Plaintiff-Appellant, 

versus 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant-Appellee. 

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Appeal from the United States District Court

for the Middle District of Florida

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(February 27, 2006)

Before TJOFLAT, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
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Wesley Stephen Waller appeals the district court’s order granting the

Commissioner of Social Security’s motion for summary judgment because Waller

failed to timely file his disability benefits case in the district court, as required by

42 U.S.C. §§ 405(g), 1383(c)(3). We conclude the district court did not err, and

affirm. 

I. BACKGROUND

On November 5, 2004, Waller filed a complaint in the district court claiming

that the Administrative Law Judge (ALJ) erred in denying his disability benefits, a

decision which the Appeals Council (AC) refused to review. The Commissioner

filed a motion to dismiss, or, in the alternative, for summary judgment, stating:

(1) the AC denied Waller’s request for review of the ALJ’s decision on August 12,

2004; (2) pursuant to 42 U.S.C. § 405(g), Waller was required to file his complaint

in the district court 60 days from the AC’s denial, or by October 18, 2004; and

(3) he did not file his complaint until November 5, 2004. The Commissioner

asserted because Waller had failed to timely file his complaint, and circumstances

did not warrant equitable tolling of the statute of limitations, his claim should be

dismissed. Attached to the motion was a letter, dated August 27, 2004, addressed

to the Social Security Administration’s Office of the General Counsel (OGC), and

signed by Waller, requesting an “extension of time to hire an attorney to file a civil
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action.” Also attached was a declaration by John J. Timlin, the AC administrator

in charge of Waller’s case, stating that: (1) upon review of the ALJ’s decision, the

AC sent a notice of its action to Waller; (2) the notice informed Waller of his right

to commence a civil action within 60 days of receipt of the notice; and (3) he was

not aware, at the time he signed the declaration, of Waller’s request for an

extension of time to file a civil action. The district court granted the motion for

summary judgment.

Waller appeals, asserting the AC erred in not granting his request for an

extension because he had good cause. Waller further contends an affidavit in

which he described his state of mind constituted sufficient evidence of mental

illness to apply equitable tolling. 

II. DISCUSSION

A. Request for extension

As an initial matter, to the extent Waller challenges the decision of the AC

not to grant an extension, that decision is not subject to judicial review. In Stone v.

Heckler, 778 F.2d 645 (11th Cir. 1985), we held the AC’s decision not to grant an

extension was not subject to judicial review and stated “a Social Security claimant

should not rely upon the possibility of an administrative extension of time” and

allowing judicial review “would allow claimants to frustrate the Congressional
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intent to forestall belated litigation of stale eligibility claims.” Id. at 648

(quotations, alteration, and citation omitted). 

B. Equitable tolling

“The question of whether equitable tolling applies is a legal one subject to de

novo review.” Cabello v. Fernandez-Larios, 402 F.3d 1148, 1153 (11th Cir.

2005). We review a district court’s grant of summary judgment de novo. Patrick

v. Floyd Medical Center, 201 F.3d 1313, 1315 (11th Cir. 2000). 

Section 405(g) of Title 42 states, in relevant part:

Any individual, after any final decision of the Commissioner . . . 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.

42 U.S.C. § 405(g) (emphasis added); see also 42 U.S.C. § 1383 (incorporating

§ 405(g) by reference). The Supreme Court has held “application of a traditional

equitable tolling principle to the 60-day requirement of § 405(g) is fully consistent

with the overall congressional purpose and is nowhere eschewed by Congress.” 

Bowen v. City of New York, 106 S. Ct. 2022, 2030 (1986) (quotations and citation

omitted).

In Bowen, the Supreme Court held because “the Government’s secretive

conduct prevent[ed] plaintiffs from knowing of a violation of rights,” equitable
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tolling of § 405(g) was appropriate. 106 S. Ct. at 2030. We have held equitable

tolling is reserved for “extraordinary circumstances,” which “is a fact-specific

determination because a finding of extraordinary circumstances necessary for

equitable tolling is reserved for extraordinary facts.” Cabello, 402 F.3d at 1154-55

(quotations, alteration, and citation omitted). In Cabello, we noted:

equitable tolling is appropriate in situations where the defendant

misleads the plaintiff, allowing the statutory period to lapse; or when

the plaintiff has no reasonable way of discovering the wrong

perpetrated against her, as is the case here. Additionally, in order to

apply equitable tolling, courts usually require some affirmative

misconduct, such as deliberate concealment.

Id. at 1155 (quotation and citation omitted). 

Here, it is undisputed Waller filed his complaint after the expiration of the

60-day statute of limitations. The only issue for this Court to resolve is whether

the evidence presented in Waller’s affidavit and the Bojarski Evaluation, construed

in the light most favorable to Waller, would give rise to equitable tolling. 

Despite Waller’s statement in his affidavit regarding his inability to act due

to his mental illness, other evidence revealed: (1) Waller sent a letter to the OGC

requesting a time extension; and (2) Waller visited an attorney and provided her

with SSA documents prior to the expiration of the 60-day statute of limitations. 

Additionally, the only professional evaluation of Waller’s condition, the Bojarski

Evaluation, was conducted more than eight months prior to the date on which he
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received notice of the AC’s decision, and, significantly, concluded Waller’s: 

(1) ability to understand, remember, and carry out “short simple instructions” was

not impaired; and (2) ability to do so with “detailed instructions” only was 

moderately impaired. These acts and evaluations are in conflict with his assertion

he was unable to timely file his complaint. Therefore, his affidavit constitutes “[a]

mere scintilla of evidence [and] . . . is insufficient to defeat a motion for summary

judgment.” Kesinger ex rel. Estate of Kesinger v. Herrington, 381 F.3d 1243,

1249-50 (11th Cir. 2004). 

III. CONCLUSION

Waller’s assertion the AC erred by not granting his request for an extension

is not subject to judicial review. Additionally, Waller did not show any affirmative

misconduct by the Commissioner which prevented him from filing his complaint

within the statute of limitations period, or that he was entitled to equitable tolling

for any other reason. The district court did not err in granting the Commissioner’s

motion for summary judgment.

AFFIRMED.