                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit

No. 11-1140

                       MICHELLE L. MCLAUGHLIN,

                        Plaintiff, Appellant,

                                     v.

                        MICHAEL J. ASTRUE,
         Commissioner of Social Security Administration,

                         Defendant, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

        [Hon. John A. Woodcock, Jr., U.S. District Judge]



                                  Before

                       Lynch, Chief Judge,
              Torruella and Howard, Circuit Judges.



     Andrew J. Bernstein and Law Offices of Joe Bornstein on brief
for appellant.
     Timothy A. Landry, Special Assistant U.S. Attorney and Thomas
E. Delahanty II, United States Attorney, on brief for appellee.



                           October 27, 2011
             Per Curiam.       Claimant Michelle McLaughlin appeals from

the dismissal, on statute of limitations grounds, of her complaint

challenging the denial of her applications for disability and

supplemental security income benefits.              Under 42 U.S.C. § 405(g),

a claimant has 60 days in which to commence an action for judicial

review of such a denial, and the 60-day period runs from the date

on   which   the    claimant    receives     the    Appeals    Council's     notice

regarding    its    decision.1       See    20    C.F.R.   §   422.210(c).      The

regulation also creates a presumption that the date of receipt is

five days after the date on the notice unless the claimant makes “a

reasonable showing to the contrary.”              Id.   The district court here

concluded that claimant had not made such a showing and that the

complaint therefore had been filed late.                   Because the analysis

underlying this conclusion is questionable, we vacate and remand

for further proceedings.

                                       I.

             It    is   undisputed   that    the    Appeals    Council’s     notice

denying claimant’s request for review is dated April 16, 2010, and

claimant does not challenge the Commissioner’s averment that the

notice was mailed on the same day.               Receipt therefore is presumed

to have occurred on April 21, and the 60-day limitations period


      1
      We note that the parties and the district court all assumed
that the date that a claimant, not his or her attorney, receives
the notice is the triggering date. Although there are different
points of view, we express no opinion on the matter, and will
proceed on the same assumption.

                                       -2-
expired on June 21.        Claimant, however, did not file her complaint

until June 28, seven days later.

            In an effort to rebut the presumption of receipt on April

21, claimant filed her own affidavit and an affidavit from her then

attorney.   As for counsel’s affidavit, counsel stated that she had

not received the Appeals Council’s notice until Friday, April 30.

Counsel, also submitted, in support, a copy of the notice that had

been date-stamped April 30 by the law firm’s office personnel.

            Claimant,      in   her   own     affidavit,    then     averred     that,

although she could not remember the exact date that she had

received the Appeals Council’s notice, she nonetheless was sure

that receipt had not occurred until after April 21.                  As for why she

was sure, claimant essentially explained that she had spoken with

counsel on either Monday or Tuesday, May 3 or May 4, regarding a

possible appeal      and    that,     since    she    was   disappointed        in   the

decision and anxious to learn about the next step, she would not

have waited more than a “few days” after receipt to speak with

counsel.    Based on the foregoing, claimant argued that since she

and counsel were located in adjacent small towns in Maine, it was

more than likely that she also had received the notice on Friday,

April 30, or, at the earliest, on Thursday, April 29 – i.e., a “few

days”   prior   to   the    Monday,     May     3    or   Tuesday,    May   4    phone

conversation.




                                        -3-
             We pause to note, before proceeding further, that the

district court and the parties all assumed that if receipt had

occurred prior to Thursday, April 29, the June 28 complaint would

be untimely.    They are mistaken, however.        That is, if receipt had

occurred on Tuesday, April 27 or Wednesday, April 28, the 60-day

time limit would have expired on Saturday, June 26 or Sunday, June

27 respectively. Thus, even if claimant had received the notice on

either of these earlier dates, she still had until Monday, June 28

to file a timely complaint.

             Turning to the merits, then, the magistrate judge to whom

the matter had been referred determined that claimant’s showing was

insufficient to rebut the presumed receipt date of April 21.                The

analysis     underlying      this   conclusion,    however,     is   somewhat

confusing, and we therefore describe it in some detail.

             In this regard, the magistrate judge first determined (1)

that the April 30 receipt date by claimant’s attorney did not

corroborate claimant’s assertion that she herself had received the

notice on or after April 29 and (2) that an equally reasonable

inference was that claimant had received the notice on April 28 or

April   27   (which,    as   noted,   everyone    assumed   would    make   the

complaint late but which, in reality, would still result in a

timely filing).        Recommended Decision, at 3-4.          Based on these

findings, the magistrate judge then concluded as follows:

                  The evidence presented by McLaughlin
                  concerning her receipt date is not

                                      -4-
                sufficient to rebut the regulatory
                presumption of receipt on April 21.
                Attorney Jordan's receipt date, her
                office's corroborating date stamp,
                and McLaughlin's vague personal
                recollections make it plausible that
                McLaughlin received the notice after
                April 21, but they do not make it
                probable that [she] received the
                notice on or after April 29.

Id. (emphasis added).

          From the foregoing, it seems that the magistrate judge

essentially was requiring claimant to show, in order to rebut the

presumed receipt date of April 21, that she had received the notice

not only after the 21st but also on or after April 29 (the wrong

date in any event).     Another possibility is that the magistrate

judge was conflating two separate inquiries:       (1) whether claimant

had rebutted the regulatory presumption -- i.e., whether she had

demonstrated that she had received the notice after April 21 (which

may have been answered in the affirmative); and (2) if so, whether

the complaint had been timely filed -- i.e., whether claimant had

actually received the notice within 60 days of the June 28 filing

(which appears to have been answered in the negative).

          The   district   court,    without   discussion,   adopted   the

magistrate   judge’s   recommended    decision, and   judgment   entered

dismissing the complaint.     Given the confusion, we think that a

remand is in order so that the district court, in light of the

following, can reconsider the motion to dismiss.



                                    -5-
                                II.

          We begin with the presumption. It seems clear to us that

a claimant need not allege a specific date of receipt of the

Appeals Council’s notice in order to make a reasonable showing that

he or she received the notice after the five-day presumptive period

had ended.   Indeed, some claimants, for various reasons, assert

that they never received the notice and, as such, simply cannot

allege any receipt date.    Thus, to the extent that the district

court was requiring claimant to establish exactly when she received

the notice in order to show receipt after April 21, this was error.

          As for rebutting the presumption, it is fairly well-

accepted that affidavits that merely state a date of receipt more

than five days after the Appeals Council’s notice, or allege non-

receipt within the five days, are not sufficient, standing alone,

to rebut the presumption.    See, e.g., McCall v. Bowen, 832 F.2d

862, 864-65 (5th Cir. 1987); Leslie v. Bowen, 695 F. Supp. 504, 506

(D. Kan. 1988); Rouse v. Harris, 482 F. Supp. 766, 768-69 (D.N.J.

1980).   On the other end of the spectrum, courts have found that

the presumption has been rebutted where a claimant can show that

the Appeals Council’s notice had not been mailed until five days

after the date on the notice or that the notice had been mailed to

an incorrect address.   See, e.g., Matsibekker v. Heckler, 738 F.2d

79, 81 (2d Cir. 1984); Chiappa v. Califano, 480 F. Supp. 856, 857

(S.D.N.Y. 1979).


                                -6-
          The case at hand, we think, falls somewhere between the

two situations outlined above.        That is, claimant did not merely

aver that she had failed to receive the Appeals Council's notice

prior to April 21.     Rather, she provided an explanation for why she

was sure that receipt had occurred after the 21st and she submitted

evidence in support -- i.e., her attorney’s copy of the notice,

dated-stamped April 30.      A case on point, and to which we direct

the court's and the parties' attention, is Pettway v. Barnhart, 233

F. Supp. 2d 1354 (S.D. Ala. 2002).

          We only pause to address the Commissioner’s observation

regarding the failure of claimant's counsel to have requested an

extension of the deadline to submit the complaint.              We assume,

although the Commissioner does not spell it out, that he is arguing

that counsel’s lack of diligence somehow should be taken into

account in determining whether the presumption has been rebutted.

While we disagree, we note that the lack of diligence is clear.

          Even with a receipt date of April 30, over six weeks

remained in which a complaint could have been timely filed by June

21, the   date   the   limitations    period   expired,   if   receipt   had

occurred on the presumed date of April 21.       Thus, this whole matter

could have been avoided had the complaint been filed sometime

during these six weeks.     Although this lack of diligence bars the

application of equitable tolling, see Donahue v. United States, 634

F.3d 615, 629 (1st Cir. 2011) ("[d]ue diligence is a prerequisite


                                     -7-
for equitable tolling"), it is not relevant to rebutting the

presumption. See Pettway, 233 F. Supp. 2d at 1363 (”[s]atisfaction

of the statute of limitations . . . depends on when events did

occur   and    not   on    when   they    might   more   prudently    have   been

arranged”).     Further, and the Commissioner cites no cases to the

contrary, it seems clear that, under the regulation, once the

presumption has been rebutted, a claimant has the full 60 days in

which to file his or her complaint.

              Last, we turn to the second step in the statute of

limitations analysis -- i.e., whether, if the presumption has been

rebutted, the complaint was timely filed within 60 days of the date

that claimant received the Appeals Council’s notice.                    In this

regard, since the statute of limitations in the case at hand is an

affirmative defense, the burden is on the Commissioner, not the

claimant, at this stage of the proceedings.               See Fed. R. Civ. P.

8(c)(1); McCall, 832 F.2d at 864; Matsibekker, 738 F.2d at 81;

Pettway, 233 F. Supp. 2d at 1363; Sinatra v. Heckler, 566 F. Supp.

1354,   1358-59      (E.D.N.Y.    1983)    (holding   that   “the    presumption

contained in the regulations is of the going-forward variety, with

the ultimate burden of persuasion with respect to lack of timely

filing on the agency”).            Thus, once the presumption has been

rebutted, the Commissioner must “prove that [the claimant] received

actual notice more than 60 days prior to filing the complaint in

district court.”          Matsibekker, 738 F.2d at 81.              Here, if the


                                         -8-
district court, in fact, made it to this step of the analysis, the

burden erroneously was placed on claimant to show a timely filing.

                                III.

          Given the foregoing, the judgment of the district court

is vacated and the matter is remanded for further proceedings

consistent with this opinion.   No costs are awarded.




                                -9-
