Grant v. Berryhill, 695 F. App'x 592

Grant applied for SSDI on October 22, 2012; his claim was denied initially and on reconsideration, and an ALJ issued an unfavorable decision on July 28, 2014.
Grant requested Appeals Council review; the Appeals Council denied review by Notice dated July 21, 2015, making the ALJ decision final.
The Notice stated a claimant has 60 days to file a civil action, and that the agency presumes receipt 5 days after the notice date unless rebutted.
The agency presumptively treated receipt as July 26, 2015, making the 60-day limitations period expire September 24, 2015.
Grant filed his district-court complaint on September 28, 2015. He submitted an affidavit and a fax suggesting he received the Notice on or about August 1, 2015, attempting to rebut the five-day presumption.
The district court dismissed the complaint as untimely; the First Circuit affirmed, concluding Grant failed to rebut the presumption of receipt within five days and thus filed four days late.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Grant rebutted 20 C.F.R. § 422.210(c)'s presumption that he received the Appeals Council notice 5 days after its date	Grant: his affidavit and fax show actual receipt on/after Aug 1, 2015, so the 60-day period ran to Sept 30, 2015	Commissioner: regulation creates a rebuttable presumption of receipt 5 days after notice; Grant provided insufficient evidence to rebut it	Held: Grant failed to rebut the 5-day presumption; presumed receipt was July 26, 2015, so complaint filed Sept 28, 2015 was untimely
Whether dismissal on statute-of-limitations grounds was appropriate under § 405(g)	Grant: timely because of later alleged actual receipt date	Commissioner: complaint untimely under § 405(g) and must be strictly enforced as condition of waiver of sovereign immunity	Held: § 405(g) period is a limitations period that must be strictly construed; dismissal affirmed

O'Shea ex rel. O'Shea v. UPS Ret. Plan, 837 F.3d 67 (1st Cir. 2016) (standard of review on Rule 12(b)(6))
McLaughlin v. Astrue, [citation="443 F. App'x 571"] (1st Cir. 2011) (discussing 5-day receipt presumption under 20 C.F.R. § 422.210(c))
Matsibekker v. Heckler, 738 F.2d 79 (2d Cir. 1984) (burden-shifting if claimant rebuts receipt presumption)
Bowen v. City of New York, 476 U.S. 467 (1986) (60-day period under § 405(g) is a limitations period and condition on waiver of sovereign immunity)
McCall v. Bowen, 832 F.2d 862 (5th Cir. 1987) (affidavits stating later receipt are insufficient alone to rebut presumption)
Cook v. Comm'r of Soc. Sec., 480 F.3d 432 (6th Cir. 2007) (requiring more than bare assertion to rebut receipt presumption)