Case Name in Social Security Case - Unavailable

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
George Allicon
v. 	Case No. 21-cv-1042-JL
Kilolo Kijakazi, Acting Commissioner,
Social Security Administration
REPORT AND RECOMMENDATION
Pro se plaintiff George Allicon, appearing in forma
pauperis, brings this action against the Acting Commissioner of
the Social Security Administration (“SSA” or “the
Commissioner”),1 seeking reinstatement of certain benefits. 	The
matter is before the court for preliminary review. 	See 28
U.S.C. § 1915(e)(2); LR 4.3(d)(2).2
1Mr. Allicon named “U.S. Social Security” in the caption of
his Amended Complaint. 	The court construes the Amended
Complaint as naming the Acting Commissioner, as he is the only
proper party in a Social Security appeal brought in federal
court. 	See Balodis v. Leavitt, 704 F. Supp. 2d 255, 256 n.1
(E.D.N.Y. 2010).
2The court previously ordered (Doc. No. 7) Mr. Allicon to
amend his Complaint (Doc. No. 1) to include information related
to whether he was challenging a final decision of the
Commissioner and whether his Complaint was timely. 	Mr. Allicon
filed an Amended Complaint (Doc. No. 8) and a motion for “full
retribution of earned insurance money.” (Doc. No. 9). The court
construes the latter document as a complaint addendum. 	The
court also includes the allegations from Mr. Allicon’s original
Complaint and his Motion for Relief (Doc. No. 3) in its
analysis.
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Standard
This court conducts a preliminary review of complaints
filed in forma pauperis. 	See 28 U.S.C. § 1915(e)(2). 	Claims may
be dismissed sua sponte, if, among other things, the court lacks
jurisdiction, a defendant is immune from the relief sought, or
the complaint fails to state a claim upon which relief may be
granted. 	See id. 	In considering whether the complaint states a
claim, the court determines if, stripped of legal conclusions
and with all reasonable inferences construed in plaintiff’s
favor, the complaint contains “sufficient factual matter,
accepted as true, to state a claim to relief” upon which relief
can be granted. 	Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citation omitted). 	In undertaking this review, the
court is mindful that pro se complaints must be construed
liberally. 	See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam).
Discussion
As was the case with his original Complaint, Mr. Allicon’s
Amended Complaint and addendum are not clear or organized. 	The
gist of Mr. Allicon’s allegations appears to be that an
Administrative Law Judge (“ALJ”) improperly denied him a portion
of Supplemental Security Income benefits in 1994, something he
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did not realize until 2019, when he submitted information to the
SSA to support his continuing eligibility for the benefits he
was previously awarded. 	Am. Compl. (Doc. No. 8) at 2;
Redetermination summary (Doc. No. 8-1).
A. 	Administrative Remedies
Pursuant to 42 U.S.C. § 405(g), a claimant can seek
judicial review of “any final decision” of the Commissioner
“made after a hearing[.]” 	Social Security claimants must
generally proceed through a four-step process before they can
obtain review from a federal court. 	First, the claimant must
seek an initial determination as to his eligibility. Second, the
claimant must seek reconsideration of the initial determination.
Third, the claimant must request a hearing, which is conducted
by an ALJ. Fourth, the claimant must seek review of the ALJ's
decision by the Appeals Council. Smith v. Berryhill, 139 S. Ct.
1765, 1772 (2019); 20 CFR § 416.1400. If a claimant has
proceeded through all four steps on the merits, § 405(g)
entitles him to judicial review in federal district court. Id.;
see Wilson v. Sec'y of Health & Human Servs., 671 F.2d 673, 677
(1st Cir. 1982) (noting that a claimant must exhaust
administrative remedies on the denial of benefits, and obtain a
final decision of the SSA Commissioner before seeking relief in
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federal court); see 20 C.F.R. § 404.900(b) (noting that if a
claimant do[es] not take the next step within the stated time
period he loses his right to further administrative review and
to judicial review, unless he can show good cause for his
failure to make a timely request for review).
Nothing in the record before the court suggests that Mr.
Allicon has sought review of the ALJs decision regarding the
alleged benefit shortfall in light of the information he
discovered in 2019, or that he has good cause for the failure to
do so. 	This failure deprives the court of subject matter
jurisdiction over Mr. Allicon’s claim.
B. 	Statute of Limitations
In addition to the requirement of administrative review, a
complaint challenging a final decision of the Commissioner of
Social Security must be filed within 60 days of the claimant’s
receipt of the notice of decision. 	See 42 U.S.C. § 405(g); 20
C.F.R. § 422.210. 	“[T]he statute of limitations embodied in §
405(g) is a mechanism by which Congress was able to move cases
to speedy resolution in a bureaucracy that processes millions of
claims annually. 	Thus, the limitation serves both the interest
of the claimant and the interest of the Government.” 	Bowen v.
City of New York, 476 U.S. 467, 481 (1986). 	Though the sixty-
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day limit is non-jurisdictional, it is a condition on the waiver
of sovereign immunity and, thus, is 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. June 27, 1994). 	The limitations period, however, is
subject to equitable tolling if the requirements of that
doctrine are satisfied. Bowen, 476 U.S. at 480. 	A claimant is
entitled to equitable tolling only upon showing: “(1) that he
has been pursuing his rights diligently, and (2) that some
extraordinary circumstance stood in his way and prevented timely
filing.” 	Holland v. Florida, 560 U.S. 631, 649 (2010); Jobe v.
I.N.S., 238 F.3d 96, 100 (1st Cir. 2001) (“The fundamental
principle is that equitable tolling is appropriate only when the
circumstances that cause a [party] to miss a filing deadline are
out of his hands.”) (quotation marks omitted).
There is nothing in the record before the court suggesting
a basis for applying equitable tolling to the limitations period
applicable to a decision rendered in 1995, or Mr. Allicon’s 2019
“discovery.” 	Indeed, Mr. Allicon alleges that he “accepted but
disagreed” with the ALJ’s 1995 decision. Pltff. Mot. (Doc. No.
9) at 1. 	In addition, while Mr. Allicon cites deficiencies in
his then-attorney’s performance in handling the disability claim
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in 1995, he notes that he never followed up with those lawyers
after instructing them to appeal, as he was “indisposed in
another state [for] a lengthy period.” 	Id. at 4, 7. 	Finally,
Mr. Allicon notes that he again appeared before the same ALJ in
2001, and he received some amount toward his original disability
claim. 	Id. at 8. 	Taken together, and added to his failure to
seek any relief after his 2019 discovery, these instances
covering more than twenty years demonstrate that Mr. Allicon has
neither been “pursuing his rights diligently,” nor been subject
to “extraordinary circumstances [that] stood in his way.”
Holland, 560 U.S at 649.
Conclusion
Based on the foregoing, the district judge should dismiss
this case for lack of subject matter jurisdiction, or, in the
alternative for failure to state a claim, as it appears that Mr.
Allicon has filed this suit well beyond the expiration of the
statute of limitations.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion.
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Only those issues raised in the objection(s) to this Report
and Recommendation are subject to review in the district
court. 	See Sch. Union No. 37 v. United Nat’l Ins. Co., 617 F.3d
554, 564 (1st Cir. 2010). 	Any issues not preserved by such
objection(s) are precluded on appeal. 	See id. 	Failure to file
any objections within the specified time waives the right to
appeal the district court’s Order. 	See Santos-Santos v. Torres-
Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
March 9, 2022
cc: 	George Allicon, pro se
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