United States Court of Appeals 

For the First Circuit 

No. 16-1944 

CYNTHIA DIANE WALKER-BUTLER, 

Plaintiff, Appellant, 

v. 

NANCY A. BERRYHILL,*

Acting Commissioner of the Social Security Administration, 

Defendant, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MAINE 

[Hon. D. Brock Hornby, U.S. District Judge] 

Before 

Lynch, Baldock,** and Kayatta 

Circuit Judges. 

Riley L. Fenner on brief for appellant. 

Nicole Sonia, Special Assistant United States Attorney, 

Social Security Administration, Office of the General Counsel, 

and Thomas E. Delahanty II, United States Attorney, on brief for 

appellee. 

May 12, 2017 

 * Pursuant to Fed. R. App. P. 43(c)(2), Nancy A. Berryhill 

has been substituted for Carolyn W. Colvin as Acting 

Commissioner of the Social Security Administration. 

** Of the Tenth Circuit, sitting by designation.
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BALDOCK, Circuit Judge. Following a remand from a 

federal district court, the Commissioner of Social Security 

issued a partially favorable decision on Plaintiff Cynthia Diane 

Walker-Butler's claim for Title II disability benefits. 

Dissatisfied, Plaintiff once again sought review of the 

Commissioner's decision in federal court, but the district court 

dismissed her complaint as untimely. We consider in this appeal 

whether a five-day grace period outlined in 20 C.F.R. 

§ 422.210(c) should have applied on remand and saved her 

complaint from dismissal. 

I. 

An individual seeking Title II disability benefits 

from the Social Security Administration may obtain judicial 

review in federal district court of "any final decision of the 

Commissioner of Social Security [regarding those benefits] made 

after a hearing to which he was a party." 42 U.S.C. § 405(g). 

On an individual's initial application for disability benefits, 

such a final decision arises in only two circumstances. First, 

the decision of the administrative law judge ("ALJ") who held 

the hearing on the individual's claim will become the final 

decision of the Commissioner if the Appeals Council of the 

Social Security Administration denies the individual's request 

for further review. 20 C.F.R. §§ 404.981, 422.210(a). Second, 
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if the Appeals Council does decide to review the individual's 

claim, the Appeals Council's decision becomes the final decision 

of the Commissioner. Id. In either instance, the Appeals 

Council must take some action—either denying review or issuing 

its own decision—before the individual is considered to have 

exhausted his or her administrative remedies with the Social 

Security Administration and may therefore seek judicial review 

in federal district court. See id. 

But what counts as the Commissioner's final decision 

differs when the individual's case has already gone to federal 

court and been remanded for further proceedings. In such an 

instance, and assuming the individual does not file with the 

Appeals Council any written exceptions to the ALJ's new decision 

on remand, the ALJ's decision "will become the final decision of 

the Commissioner after remand on [the individual's] case unless 

the Appeals Council assumes jurisdiction of the case" within 

sixty days after the date of the ALJ's new decision.1 Id. 

 1 If the individual does file written exceptions with the 

Appeals Council, then the procedures are much more similar to an 

individual's initial application for benefits: either the 

Appeals Council will (1) "conclude[] that there is no reason to 

change the decision of the [ALJ]" and deny review, in which case 

"the decision of the [ALJ] is the final decision of the 

Commissioner after remand," 20 C.F.R. § 404.984(b)(2), or 

(2) assume jurisdiction of the case based on the exceptions and 

issue a "new, independent decision" that in turn functions as 

the final decision of the Commissioner after remand, id. 

§ 404.984(b)(3). 
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§ 404.984(a), (c) (emphases added). Put differently, the 

Appeals Council does not need to take action before the 

individual may seek judicial review in federal district court. 

See id. If the Appeals Council chooses to do nothing, the ALJ's 

decision automatically becomes the final decision of the 

Commissioner. Id. § 404.984(d). 

 These differences in finality on an initial 

application for disability benefits and on remand from a 

district court influence how we calculate the amount of time the 

individual has to seek judicial review. In both situations, 

42 U.S.C. § 405(g) applies and mandates that the individual must 

file his or her civil action "within sixty days after the 

mailing to him of notice of [the Commissioner's final] decision 

or within such further time as the Commissioner of Social 

Security may allow." 42 U.S.C. § 405(g). Even so, the specific 

procedural posture of the case changes the practical effect of 

this statute. 

 

As we explain more later on, however, the case 

currently before us does not involve any decision on remand to 

which written exceptions were filed with the Appeals Council. 

Thus, for the sake of simplicity, when we discuss cases on 

remand or the Commissioner's final decision on remand, we are 

specifically referring to the situation where an individual has 

not filed any written exceptions to the ALJ's decision. 

Similarly, our ultimate decision today is only concerned with 

situations where an individual has not filed any written 

exceptions. 
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 On initial applications for disability benefits, 

applying § 405(g) is relatively straightforward. In that 

scenario, the Appeals Council, which must take some action, 

always mails the individual a notice of that action (i.e., 

denying review or issuing its own decision). 20 C.F.R. 

§§ 404.967, 404.981. As such, the default rule under § 405(g) 

is that the individual has sixty days from the date the notice 

was mailed to bring a civil action unless the Commissioner has 

given him or her more time to do so. And under 20 C.F.R. 

§ 422.210(c), the Commissioner has done just that: pursuant to 

this regulation, the sixty-day time limit starts when the 

individual receives the notice of the Appeals Council's action. 

Further, § 422.210(c) provides that "[f]or purposes of this 

section, the date of receipt of notice . . . shall be presumed 

to be 5 days after the date of such notice, unless there is a 

reasonable showing to the contrary." 

But on remand, the application of § 405(g) is a bit 

trickier. While the ALJ must mail a notice of its new decision 

on remand to the individual, see 20 C.F.R. §§ 404.977(c), 

404.984(b)(1), the Appeals Council, which has no obligation to 

act, need not mail a notice to the individual when it decides 

not to assume jurisdiction over the case, see id. § 404.984(d) 

(omitting any language suggesting that the Appeals Council must 

mail to the individual a notice of its decision not to assume 
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jurisdiction). In other words, in the situation where the ALJ's 

decision automatically turns into the final decision of the 

Commissioner after sixty days, no new notice is mailed to the 

individual informing him or her of that transformation. This 

makes § 405(g) somewhat awkward to apply to these situations on 

remand even though it undoubtedly does apply: because the 

Appeals Council does not mail a separate notice of this 

automatic final decision, how can the individual file his or her 

civil action in federal court within sixty days of the mailing 

of a notice? 

Obviously, the individual cannot do so. For that 

reason, § 405(g)'s sixty-day time limit must necessarily begin 

to run from the day the ALJ's decision automatically transforms 

into the final decision of the Commissioner.2 As one district 

court aptly put it, "[t]he Appeals Council's inaction triggers 

 2 An argument could be made that on remand the ALJ's 

notice of decision, which could potentially become the final 

decision of the Commissioner after sixty days, instead functions 

as the notice from which the sixty-day filing period described 

in § 405(g) begins to run. But this would make little sense. 

The practical result of such an interpretation would be that the 

individual would still have to wait a full sixty days to see if 

the Appeals Council would assume jurisdiction of the case, 20 

C.F.R. § 404.984(c), and then if it did not, he or she would 

have little to no time left to seek judicial review of the ALJ's 

decision in federal court. As should be quite obvious, that 

would be manifestly absurd and unjust. In any event, both 

Plaintiff and the Commissioner assume on appeal that the sixtyday filing period under § 405(g) begins to run from the date the 

ALJ's decision automatically becomes the Commissioner's final 

decision, and we see no reason to disturb this mutual agreement. 
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the finality of the decision (without need for any mailing of a 

notice of final decision), and a claimant then has sixty days 

from that date to commence a civil action." Harris v. Colvin, 

No. 3:15-cv-05575-RBL, 2015 WL 9302910, at *1 (W.D. Wash. 

Dec. 18, 2015). 

But what about 20 C.F.R. § 422.210(c) and its five-day 

grace period? Can it somehow apply on remand to give an 

individual an extra five days to once again seek judicial review 

in federal court even though this regulation speaks in terms of 

receiving a notice? The applicability of § 422.210(c) to cases 

on remand forms the basis of Plaintiff's appeal today. 

II. 

 Plaintiff applied for Title II disability benefits 

with the Social Security Administration. An ALJ initially 

denied her claim after a hearing, and the Appeals Council denied 

her request for review. Accordingly, the ALJ's decision became 

the final decision of the Commissioner from which Plaintiff 

sought judicial review with a federal district court. 

42 U.S.C. § 405(g); 20 C.F.R. §§ 404.981, 422.210. The district 

court remanded her claim for further administrative proceedings 

in December 2014. 

 On August 27, 2015, while on remand, the ALJ changed 

course and issued a partially favorable decision on Plaintiff's 
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claim. The ALJ mailed a copy of the notice of that decision to 

Plaintiff. In pertinent part, the notice stated the following: 

If you do not file written exceptions and the Appeals 

Council does not review my decision on its own, my 

decision will become final on the 61st day following 

the date of this notice. After my decision becomes 

final, you will have 60 days to file a new civil 

action in Federal district court. You will lose the 

right to a court review if you do not file a civil 

action during the 60-day period starting with the day 

my decision becomes final. . . . We will not send you 

any more notices about your right to file in Federal 

district court. 

Notably, Plaintiff did not file any written exceptions to the 

ALJ's decision on remand. Similarly, the Appeals Council did 

not review the ALJ's decision on its own accord. The ALJ's 

decision therefore became the final decision of the Commissioner 

once again. 20 C.F.R. § 404.984. 

 Plaintiff thereafter filed a civil action in federal 

district court on January 4, 2016, challenging the ALJ's 

decision on remand. The Commissioner, however, moved to dismiss 

Plaintiff's action on the basis that it was untimely. The 

Commissioner argued that the ALJ's decision became final on 

October 27, 2015, which was the first day after the Appeals 

Council's sixty days to assume jurisdiction of the ALJ's August 

27, 2015 notice of decision had run. As such, the Commissioner 

calculated that Plaintiff had until only December 26, 2015—sixty 

days after the ALJ's decision became final—to file a civil 

action in federal court challenging the decision. Since 
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December 26 was a Saturday, however, the Commissioner conceded 

that Plaintiff could wait until the following Monday, December 

28 to file her claim. But because Plaintiff nonetheless missed 

this deadline by several days, the Commissioner believed that 

Plaintiff's action was time-barred. 

 In response, Plaintiff argued that 20 C.F.R. 

§ 422.210(c) and its five-day grace period saved her claim from 

being untimely. By applying this five-day grace period, she 

claimed that she was presumed to have received the ALJ's August 

27 notice of its decision five days later on September 1, 2015. 

As a result, she maintained that the ALJ's decision actually 

became final sixty-one days later on November 1, 2015. But 

because November 1 was a Sunday, Plaintiff noted that she could 

not have received any notice of the Appeals Council's assumption 

of jurisdiction over the case "had it done so" until the 

following day on Monday, November 2. Under the impression that 

this meant she could start counting from November 2, Plaintiff 

calculated that her sixty-day filing limit fell on January 1, 

2016, a federal holiday. The next business day after this 

federal holiday was Monday, January 4, 2016, the date on which 

Plaintiff filed her complaint in district court. Consequently, 

and although many steps were involved, Plaintiff claimed that 

her civil action was timely. 
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 The district court ruled against Plaintiff. It 

concluded that "20 C.F.R. § 422.210 is a regulation that deals 

with judicial review of initial final decisions, not final 

decisions on remand," and therefore determined that Plaintiff 

could not rely on the five-day grace period outlined in that 

regulation. As a result, the district court sided with the 

Commissioner and dismissed her complaint for being untimely 

filed. 

 Plaintiff now appeals from the district court's 

dismissal and asks us to hold that the five-day grace period 

outlined in 20 C.F.R. § 422.210(c) applies to final decisions on 

remand. 

III. 

We hold that the five-day grace period outlined in 

§ 422.210(c) does not apply to final decisions on remand where 

the individual does not file any written exceptions to the ALJ's 

decision and the Appeals Council does not assume jurisdiction of 

the case. 

First, the language of § 422.210(c) itself makes this 

conclusion apparent. By its terms, the five-day grace period 

outlined in that regulation applies only when the individual 

receives a "notice of denial of request for review . . . or 

notice of [a] decision by the Appeals Council." 20 C.F.R. 

§ 422.210(c). Section 422.210(c), therefore, assumes that the 
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Appeals Council has taken some action informing the individual 

of what it has chosen to do. And as we explained before, the 

only time the Appeals Council must take such action is on an 

initial application for benefits. On remand, by comparison, the 

Appeals Council has no obligation to mail any notice to the 

individual if it decides not to assume jurisdiction over his or 

her case. For that reason, the terms of § 422.210(c) simply do 

not apply to decisions on remand. 

Second, and contrary to Plaintiff's suggestion, the 

language of 20 C.F.R. § 404.984(c) teaches that the five-day 

grace period under § 422.210(c) does not apply instead to the 

individual's receipt of the ALJ's notice of decision. According 

to § 404.984(c), the ALJ's decision will become final unless the 

Appeals Council assumes jurisdiction of the case "[a]ny time 

within 60 days after the date of the decision of the [ALJ]." 20 

C.F.R. § 404.984(c) (emphasis added). The plain language of 

this regulation mentions nothing about mailing or receiving the 

ALJ's notice; it mentions only the date of the ALJ's notice of 

decision. The date the individual receives the ALJ's notice of 

decision on remand is therefore irrelevant, because under 

§ 404.984(c) the date the ALJ's decision becomes final "is not 

dependent on the date of plaintiffs [sic] receipt of the 

decision." Harris, 2015 WL 9302910, at *1. Instead, "the 60-
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day deadline for action is the Administration's, not the 

plaintiff's." Id. (emphasis added).3 

Third, applying § 422.210(c) to decisions on remand is 

simply unnecessary. In those situations, the individual already 

has substantially more time to decide whether to seek judicial 

review than he or she would on an initial application for 

benefits: in addition to the sixty days under 42 U.S.C. 

§ 405(g) guaranteed to any individual wishing to challenge the 

Commissioner's final decision in federal court, an individual on 

remand also has sixty days from the date of the ALJ's decision 

under 20 C.F.R. § 404.984(c) when he or she is waiting to see if 

that decision will transform into the final decision of the 

Commissioner. In effect, this is extra time for the individual 

to contemplate whether he or she will file a claim in federal 

court should the ALJ's decision be the final decision of the 

Commissioner. 

For illustration, assume for the purposes of argument 

that the ALJ's August 27 notice of decision on remand was 

egregiously delayed in the mail and that Plaintiff actually 

 3 As a side note, we also find it interesting that 

Plaintiff thinks the ALJ's notice of decision should be 

considered as the notice from which she can benefit from the 

five-day grace period under § 422.210(c), but should not be 

considered as the notice from which the sixty-day time limit for 

filing a federal action under § 405(g) begins to run. See supra 

note 2. We are not entirely sure why the ALJ's notice of 

decision would apply in one instance but not the other. It 

appears that Plaintiff wants to have her cake and eat it, too. 
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received it several weeks later on October 1. Without further 

action by the Appeals Council, that decision would still have 

become final on October 27, which would mean that Plaintiff 

would have had to file an action in federal court challenging it 

by December 28. In that situation, Plaintiff would still have 

had nearly three months to decide whether to challenge the ALJ's 

action. Even after factoring in such an egregious delay, this 

is still significantly longer than the sixty-five days (sixty 

days under 42 U.S.C. § 405(g) plus the five-day grace period 

under 20 C.F.R. § 422.210(c)) that an individual usually has to 

decide whether to challenge the Commissioner's final decision on 

an initial application for benefits. Thus, giving an individual 

on remand recourse to the five-day grace period outlined in 

§ 422.210(c) would amount to an unnecessary windfall. 

Fourth and finally, the ALJ's actual notice of 

decision that was issued to Plaintiff in this case explicitly 

and accurately informed her of the time limits she had to seek 

judicial review in federal court. The ALJ advised Plaintiff 

that "my decision will become final on the 61st day following the 

date of this notice," which conforms to the requirements of 20 

C.F.R. § 404.984(c). Further, the ALJ also advised Plaintiff 

that "[a]fter my decision becomes final, you will have 60 days 

to file a new civil action in Federal district court," which 

conforms to the requirements of 42 U.S.C. § 405(g). Plaintiff 
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was therefore fully informed of the time in which she could seek 

judicial review. 

 Plaintiff attempts to seize on another portion of the 

ALJ's notice of decision wherein the ALJ informed her that 

"[t]he Appeals Council assumes that [she] got this notice within 

5 days after the date of the notice." But the ALJ included this 

statement within a section discussing the time within which 

Plaintiff could file written exceptions to his decision. In 

such a context, the five-day grace period under § 422.210(c) 

makes perfect sense: the regulation that outlines the 

requirements for filing written exceptions explicitly states 

that "[t]he exceptions must be filed within 30 days of the date 

you receive the decision of the [ALJ]." 20 C.F.R. 

§ 404.984(b)(1) (emphasis added). Because that regulation 

explicitly speaks in terms of receiving decisions, applying the 

five-day grace period under § 422.210(c) presents no problems. 

But Plaintiff never filed any written exceptions to the ALJ's 

decision. As such, the section of the ALJ's notice of decision 

referencing the five-day grace period has no application for our 

present purposes. 

 In conclusion, Plaintiff cannot apply the five-day 

grace period under 20 C.F.R. § 422.210(c) to save her civil 

claim from being untimely. And although the sixty-day time 

limit under 42 U.S.C. § 405(g) is subject to equitable tolling, 
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see Bowen v. City of New York, 476 U.S. 467, 480 (1986), 

Plaintiff has made no arguments suggesting that this doctrine 

should apply to the facts of her case. We thus deem waived any 

argument Plaintiff could have made to that effect. 

IV. 

For the reasons described above, we AFFIRM the 

district court's decision and order dismissing Plaintiff's claim 

as untimely.