                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit

No. 16-2188

                         DAVID PEABODY GRANT,

                        Plaintiff, Appellant,

                                     v.

                      NANCY A. BERRYHILL,*
     Acting 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

                  Torruella, Lynch, and Kayatta,
                          Circuit Judges.


     Riley L. Fenner, on brief for appellant.
     Timothy S. Bolen, Special Assistant United States Attorney,
Social Security Administration, Office of the General Counsel, and
Thomas E. Delahanty II, United States Attorney, on brief for
appellee.


                            August 16, 2017




*   Pursuant to Fed. R. App. P. 43(c)(2), Acting Commissioner
Nancy A. Berryhill is substituted for former Acting Commissioner
Carolyn W. Colvin as defendant-appellee.
             Per Curiam.   Claimant-Appellant David Peabody Grant

("Grant") appeals from the dismissal, on statute of limitations

grounds, of his complaint, which challenged the denial of his claim

for social security disability benefits.      Because Grant failed to

rebut the statutory presumption that the day of receipt of notice

of the decision by the Appeals Council was five days after it was

issued, we agree that his complaint was untimely filed and thus,

we affirm.

                            I. Background

             Grant filed for social security disability insurance

benefits ("SSDI") on October 22, 2012.       His claim was denied by

the Social Security Administration on January 24, 2013, and again

on reconsideration on April 16, 2013.       A hearing was held before

an administrative law judge ("ALJ") on June 12, 2014.1       On July

28, 2014, the ALJ issued an unfavorable decision finding Grant not

disabled, and therefore ineligible for SSDI.      Grant sought review

from the ALJ's decision before the Appeals Council.      On July 21,

2015, by Notice of Appeals Council Action (the "Notice"), the

Appeals Council denied the request for review, making the ALJ's

decision final.    The notice included the following information:




1 During the course of this hearing, Grant was represented by Mr.
Peter Clifford, a non-attorney representative.

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        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.

           On September 28, 2015, Grant filed the current civil

action in the United States District Court for the District of

Maine against the Acting Commissioner of the Social Security

Administration (the "Commissioner") asking for judicial review of

the   Commissioner's     final   decision.     On    March   4,   2016,   the

Commissioner filed a motion to dismiss pursuant to Fed. R. Civ. P.

12(b)(6), alleging that the complaint was filed untimely pursuant

to 42 U.S.C. § 405(g)(2015).        On June 27, 2016, Magistrate Judge

John H. Rich issued a Report and Recommendation on the Motion to

Dismiss, where he recommended that the motion be granted and the

complaint dismissed because Grant was unable to demonstrate that

the complaint was timely filed.        On July 20, 2016, the district

court   made   a   de   novo   determination   and   concurred    with    the


                                   - 3 -
Magistrate's recommendation granting the Commissioner's motion to

dismiss.    This appeal followed.

                               II. Analysis

            Grant argues that the district court erred when it

dismissed his complaint as untimely.            He posits that he met his

burden of rebutting the statutory presumption by showing that he

received the Notice of the decision by the Appeals Council more

than five days after the date of such Notice and that he filed his

complaint within sixty days of having received the Notice.

            Our review of the district court's grant of a Rule

12(b)(6) motion is de novo.          O'Shea ex rel. O'Shea v. UPS Ret.

Plan, 837 F.3d 67, 77 (1st Cir. 2016).              In our review, we take

"all factual allegations in the complaint as true and draw[] all

reasonable inferences in the non-moving party's favor."                Id.

            Congress has prescribed the exclusive procedures and

conditions that govern judicial review of a Commissioner's final

decision.     42 U.S.C. § 405(g) provides a claimant with sixty days

to   initiate   a   civil   action    seeking     judicial    review   of    such

decision.       This   sixty-day     limitation    period    begins    after    a

claimant receives the Appeals Council's notice of denial of request

for review.     See 20 C.F.R. § 422.210(c) (1997).           At the same time,

this regulation "creates a presumption that the date of receipt is

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

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'a reasonable showing to the contrary.'"       McLaughlin v. Astrue,

443 F. App'x 571, 572 (1st Cir. 2011) (quoting 20 C.F.R. §

422.210(c)).    If a claimant is able to rebut the presumption, then

the Commissioner "must prove that [the claimant] received actual

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

court."   Id. at 575 (alteration in original) (citation omitted);

see also Matsibekker v. Heckler, 738 F.2d 79, 81 (2d Cir. 1984).

          The sixty-day filing period "is not jurisdictional, but

rather constitutes a period of limitations."    Bowen v. City of New

York, 476 U.S. 467, 478 (1986) (citing Mathews v. Eldridge, 424

U.S. 319, 328 n.9 (1976)).    This limitation period constitutes "a

condition on the waiver of sovereign immunity and thus must be

strictly construed."     Id. at 479.    Consequently, 42 U.S.C. §

405(g) "generally precludes late judicial challenge to the denial

of benefits."    Piscopo v. Sec'y of Health & Human Servs., No. 93-

2326, 1994 WL 283919, at *3 (1st Cir. 1994) (citation omitted).

          The record before us shows that the Appeal Council's

Notice denying Grant's request for review is dated July 21, 2015.

Accordingly, the presumed five-day period ended on July 26, 2015.

The sixty-day period to file a complaint for judicial review of

the Commissioner's determination concluded on Thursday, September




                                - 5 -
24, 2015.2     Grant filed his complaint on Monday, September 28,

2015.

            Grant argues that the sixty-day period started to run on

the date of his alleged actual receipt of the Appeal's Council

Notice, on or about August 1, 2015, and therefore lasted until

September 30, 2015.     In order to rebut the presumption of receipt

on July, 26, 2015, Grant filed his own affidavit and a facsimile

transmission.     In these documents Grant contends that he "received

notice of the Appeals Council's decision . . . on or after August

1, 2015."      However, the facsimile transmission does not provide

any evidence supporting a date of receipt, but instead only notes

when Grant contacted his current attorney.           The only relevant

evidence claimant has provided is his own affidavit.

            It has been "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."     McLaughlin, 443 F. App'x at 574; see also McCall

v. Bowen, 832 F.2d 862, 864 (5th Cir. 1987).        In this case, Grant

merely recalls receiving the notice on or after August 1, 2015.

Yet, this is insufficient to rebut the presumption that the notice



2   Grant did not dispute this calculation.

                                    - 6 -
was received within five days of its issuance.            Cf. e.g., Cook v.

Comm'r of Soc. Sec., 480 F.3d 432, 436-37 (6th Cir. 2007).            Without

a reasonable showing to the contrary by Grant, it is presumed that

he received notice on July 26, 2015.             The last day to file a

complaint       seeking   judicial     review    of     the   Commissioner's

determination under § 405(g) was September 24, 2015.            Grant filed

his complaint on September 28, 2015, and thus it was four days

late.

            Grant further contends that the Commissioner makes the

presumption that the Notice was received within five days after it

was    issued   without   providing    corroborating     evidence    that   the

Appeals Council's Notice was actually mailed to him on July 21,

2015.    This argument, however, is inapposite.          It is Grant who had

the burden of rebutting the presumption.          This presumption is not

derived     from   any    assessment    of   evidence     provided    by    the

Commissioner, but rather from the agency's regulation.               20 C.F.R.

§    422.210(c).      Only   if   a   claimant   successfully    rebuts     the

presumption must "the Commissioner . . . 'prove that [the claimant]

received actual notice more than 60 days prior to filing the

complaint in district court.'"          McLaughlin, 443 F. App'x at 575

(emphasis omitted) (citing Matsibekker, 738 F.2d at 81).              That was

not the case here.3


3   We express no opinion on the matter of whether the triggering
                                - 7 -
                         III. Conclusion

          Given the foregoing, Grant's complaint was untimely

filed, and for that reason we affirm the judgment of the district

court.




date for the sixty-day period begins on the date the claimant or
his or her attorney receives the notice, but take note that
another circuit has determined "that notice received by either
the individual or the individual's attorney, whichever occurs
first, triggers the sixty-day limitations period." Bess v.
Barnhart, 337 F.3d 988, 990 (8th Cir. 2003).

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