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Walker-Butler v. Berryhill

United States Court of Appeals, First Circuit

May 12, 2017

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.

          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.

          Before Lynch, Baldock, [**] and Kayatta Circuit Judges.

          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, 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. § 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.

         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 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 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 § ...


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