UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

Russell Manchester

Civil No. 04-CV-476-PB

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 25, 2003, an Administrative Law Judge (ALJ) denied

Manchester’s claim for disability insurance benefits but granted 

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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. No. 4). 

Manchester received notice of the Appeals Council’s decision on

October 12, 2004. Compl. ¶ II. 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. No. 4). 

Manchester filed a civil action in this court on December

16, 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. Pl. Obj. to Mot. to Dismiss ¶ 2 (Doc. No. 9). The

Appeals Council denied his request for an extension on February

25, 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

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of all reasonable inferences.” Cooperman v. Individual, Inc.,

171 F.3d 43, 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

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the Commissioner. Bowen v. City of New York, 476 U.S. 467, 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 12, 2004. Compl. ¶ II. 

Thus, he was required to file his complaint on or before December

Case 1:04-cv-00476-PB Document 11 Filed 10/06/05 Page 4 of 10
 The Commissioner incorrectly calculates the due date as 1

December 11, 2004, and notes that because that day was a

Saturday, Manchester had until Monday, December 13, 2004 to file

his complaint. See Fed. R. Civ. P. 6(a). Under either

calculation, Manchester’s filing on December 16, 2004 was late.

 Manchester initially argued that his complaint was timely 2

filed within 65 days of the date of decision. Compl. ¶ II. 

Manchester now apparently concedes that the limitation period is

60 days from the date of receipt of notice from the Appeals

Council. See Pl. Obj. to Mot. to Dismiss ¶¶ 1, 8, 15; see also

Worthy v. Heckler, 611 F. Supp. 271, 273 (W.D.N.Y. 1985) (noting

that presumption regarding date of receipt does not change the

limitation period from 60 to 65 days). 

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10, 2004 in order for it to be timely. 

1 2

Manchester concedes that he filed his complaint and his

request for an extension of time to file on December 16, 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. Pl. Obj. 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

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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 708, 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.

Case 1:04-cv-00476-PB Document 11 Filed 10/06/05 Page 6 of 10
 Manchester also cites Matos v. Sec’y of Health, Educ. & 3

Welfare, 581 F.2d 282, 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

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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. 89, 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. See Boothby v. Soc. 3

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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.

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Sec. Admin. Comm’r, 132 F.3d 30 (table), 1997 WL 727535 (1st Cir.

Nov. 18, 1997); Blake v. Soc. Sec. Admin., No. Civ. 02-112-B,

2003 WL 22703220 (D. N.H. Nov. 14, 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). 

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 The first mention of Manchester’s mental impairment 4

appears in his Objection to the Commissioner’s Motion to Dismiss

at ¶ 10. Manchester does not explain how this mental impairment

might have interfered with his ability to file a timely claim. 

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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. Nor has Manchester alleged 4

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

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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 348, 351 (8th Cir.

1995).

IV. CONCLUSION

The Commissioner’s Motion to Dismiss (Doc. No. 4) is

granted. The clerk is instructed to enter judgment accordingly.

SO ORDERED.

Paul Barbadoro

United States District Judge

October , 2005

cc: Raymond J. Kelly, Esq.

David L. Broderick, Esq.

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