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Bachand v. Berryhill

United States District Court, D. Connecticut

November 19, 2018

KEVIN DAVID BACHAND, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security,

          MEMORANDUM OF DECISION RE: MOTION TO DISMISS (ECF # 12)

          Kari A. Dooley United States District Judge.

         Preliminary Statement of the Case

         By this action, the plaintiff appeals the Commissioner's determination that he is not eligible for benefits under Titles II and XVI of the Social Security Act. The Commissioner filed a motion to dismiss the appeal on the ground that it was not timely filed. The plaintiff avers in response that the appeal was timely filed, or in the alternative, that the court should apply principles of equitable tolling and allow the appeal to proceed. For the reasons set forth below, the motion is GRANTED.

         Standard of Review

         The Social Security Act provides the exclusive remedy for a plaintiff seeking judicial review of the Commissioner's final decision. See 42 U.S.C. §§ 405(g), (h). Section 405(g) provides in pertinent part:

Any individual, after a final decision of the Commissioner of Social Security made after a hearing to which he was a party . . . 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.

         The Commissioner may raise a limitations defense in a Rule 12(b)(6) motion. See Paniagua v. Comm'r of Soc. Sec., 15-cv-20138 (JCM), 2017 WL 699117, at *2 (S.D.N.Y. Feb. 21, 2017). In deciding a Rule 12(b)(6) motion, the court accepts all factual allegations in the complaint as true and draws all reasonable inferences from those allegations in plaintiff's favor. See Crawford v. Cuomo, 796 F.3d 252, 256 (2d Cir. 2015); see also Alamo v. Berryhill, No. 3:18-CV-00210 (JCH), 2018 WL 3596751, at *2 (D. Conn. July 26, 2018).

         Facts and Allegations

         The series of events preceding the filing of this action are not in dispute. On December 11, 2014, the plaintiff's prior appeal regarding his claim for disability benefits was remanded from this court for further proceedings before the Commissioner. Thereafter, on August 26, 2015, the Appeals Council remanded the case to the Administrative Law Judge (“ALJ”) that had rendered the original decision from which the plaintiff had first appealed to this court. On January 13, 2017, the ALJ issued a decision, again denying the plaintiff's claim for benefits under Title II and XVI. The decision was mailed to the plaintiff the same day along with a cover letter explaining the plaintiff's options. A copy of both the letter and the opinion was also sent to plaintiff's counsel.

         The letter accompanying the ALJ decision advised the plaintiff that the plaintiff could, if he disagreed with the decision, submit “written exceptions” to the decision. In bold font and separate from all other text, the letter provided: “Time Limit to File Written Exceptions (30 Days).” Immediately thereafter, the letter provided:

You must file your written exceptions with the Appeals Council within 30 days of the date you get this notice. The Appeals Council assumes that you got this notice within 5 days after the date of the notice unless you show that you did not get it within the 5-day period.

         The letter also explained that the plaintiff could seek additional time to file written exceptions by filing a request for same “within 30 days of the date you get the notice.” It advised the plaintiff that the Appeals Council might review the ALJ decision on its own even if the plaintiff did not file written exceptions and that the plaintiff would be notified within 60 days if the Council decided to review the decision on its own.

         Finally, the letter provided:

         Filing An Action In ...


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