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Nee v. Berryhill

United States District Court, D. Massachusetts

December 9, 2019

John G. Nee, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Defendant.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge

         I. Introduction

         Plaintiff 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.

         II. Standard of Review

         When 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.

         If the 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 omitted).

         III. Background

         Nee 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 information:

         Time To File a Civil Action

You have 60 days to file a civil action (ask for court review).
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 5-day period.
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.

         IV. ...


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