United States District Court, D. Massachusetts
John G. Nee, Plaintiff,
Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Defendant.
MEMORANDUM AND ORDER
J. Casper United States District Judge
John G. Nee (“Nee”), pro se, seeks
judicial review pursuant to 42 U.S.C. § 405(g) of the
denial of his claim for disability insurance benefits under
Title II of the Social Security Act. D. 1. Defendant Acting
Commissioner of the Social Security Administration Nancy A.
Berryhill (the “Commissioner”) moves to dismiss
pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds that this
action is untimely. D. 15. For the reasons stated below, the
Court DENIES the Commissioner's motion to dismiss.
Standard of Review
reviewing a motion pursuant to Fed.R.Civ.P. 12(b)(6), the
Court “may properly consider only facts and documents
that are part of or incorporated into the complaint; if
matters outside the pleadings are considered, the motion must
be decided under the more stringent standards applicable to a
Rule 56 motion for summary judgment.” Trans-Spec
Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 321
(1st Cir. 2008) (citation omitted); see Fed.R.Civ.P.
12(d). The Court may make exceptions for “documents the
authenticity of which are not disputed by the parties; for
official public records; for documents central to
plaintiffs' claim; or for documents sufficiently referred
to in the complaint.” Alt. Energy, Inc. v. St. Paul
Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir.
2001) (quoting Watterson v. Page, 987 F.2d 1, 3 (1st
Cir. 1993)). If the documents do not fall within this narrow
class of exceptions, and the Court nevertheless considers
them in deciding the motion, the motion “must be
treated as one for summary judgment under Rule 56” and
the parties “must be given a reasonable opportunity to
present all the material that is pertinent to the
motion.” Fed.R.Civ.P. 12(d); see Watterson,
987 F.2d at 3.
Court converts the motion to one for summary judgment, the
Court grants summary judgment where there is no genuine
dispute as to any material fact and the undisputed facts
demonstrate that the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). “A fact is
material if it carries with it the potential to affect the
outcome of the suit under the applicable law.”
Santiago-Ramos v. Centennial P.R. Wireless Corp.,
217 F.3d 46, 52 (1st Cir. 2000) (quoting Sánchez
v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). The
movant “bears the burden of demonstrating the absence
of a genuine issue of material fact.” Carmona v.
Toledo, 215 F.3d 124, 132 (1st Cir. 2000); see
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If
the movant meets his or her burden, the non-moving party may
not rest on the allegations or denials in her pleadings,
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986), but “must, with respect to each issue on which
she would bear the burden of proof at trial, demonstrate that
a trier of fact could reasonably resolve that issue in her
favor, ” Borges ex rel. S.M.B.W. v.
Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010) (citation
filed an application for social security disability insurance
benefits on March 3, 2014, alleging disability onset
beginning March 31, 2013. D. 1-2 at 9; D. 16-2 at 5. The
Social Security Administration (the “SSA”) denied
his claim in July 2014 and again upon reconsideration in
October 2014. D. 1-2 at 9; D. 16-2 at 5. On December 17,
2015, Nee received a hearing before an Administrative Law
Judge (“ALJ”). D. 1-2 at 9; D. 16-2 at 5. Prior
to the hearing, Nee, through his attorney, amended the onset
of disability to January 1, 2014. D. 1-2 at 9; D. 16-2 at 5.
On February 22, 2016, the ALJ issued a partially favorable
decision finding that “the claimant has been disabled
under sections 216(i) and 223(d) of the Social Security Act
beginning on June 19, 2015.” D. 1-2 at 17; D. 16-2 at
13. Nee appealed the ALJ's determination and sought
review regarding the onset date from the Appeals Council. D.
16-3. On May 23, 2017, by Notice of Appeals Council Action
(the “Notice”), the Appeals Council denied the
request for review, making the ALJ's decision final. D.
1-2 at 3; D 16-4 at 1. The Notice included the following
To File a Civil Action
You have 60 days to file a civil action (ask for court
The 60 days start the day after you receive this letter. We
assume you received this letter 5 days after the date on it
unless you show us that you did not receive it within the
If you cannot file for court review within 60 days, you may
ask the Appeals Council to extend your time to file. You must
have a good reason for waiting more than 60 days to ask for
court review. You must make the request in writing and give
your reason(s) in the request.
D. 16-4 at 3. The Notice was mailed to Nee on May 26, 2017.
D. 1-2 at 1; D. 16-1 at 3.