MEMORANDUM OPINION and ORDER
KEVIN McNULTY, District Judge.
The plaintiff, Gabriel Amparo, filed this appeal from the Commissioner's denial of supplemental social security income (SSI) benefits on October 11, 2012. The final decision of the Appeals Council, from which he appeals, is dated August 1, 2012. The Commissioner moves to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(1) because it was not filed within 60 days of Mr. Amparo's receipt of notice of the Appeals Council's denial. I find that the doctrine of equitable estoppel applies, and excuse the filing of this appeal approximately five days late. The motion to dismiss is therefore denied.
After Mr. Amparo's application for SSI benefits was denied in 2009 and again in 2010, he filed a timely request for hearing. He appeared and testified before Administrative Law Judge James Andres in Newark on April 4, 2011. On April 28, 2011, Judge Andres gave Notice of his unfavorable decision, finding Mr. Amparo ineligible for benefits in an eleven-page opinion. Amparo requested that the Appeals Council review the ALJ's decision. On August 1, 2012 the Appeals Council gave notice of its denial of review. The parties agree that this is a final decision' and that Plaintiff had 60 days from his receipt of notice to file a civil action, unless he received an extension.
Plaintiff filed this action on October 11, 2012. He admits that this filing occurred more than 60 days following the date he received the Appeals Council's notice. (The date of receipt is deemed by law to occur five days after the date of notice of the final decision.) He contends, however, that he received an extension of the time to file his civil action. Central to this issue are the events of September 25, 2012, the day that Mr. Amparo visited the Social Security district office in Jersey City.
In his Complaint, Mr. Amparo alleges that the "Appeals Council extended [his] time to file a Civil Action to October 25, 2012 on September 25, 2012." (Complaint at ¶ 8). In an affidavit submitted in opposition to the Commissioner's Motion to Dismiss, he swears that he visited the Social Security district office on September 25, 2012, and was informed by a "representative" that "the Appeals Council had granted a 30 day extension within which to file a District Court complaint. The 30 days were to commence with the date of my visit that day." (Pl. Aff. ¶ 4). He further swears that a representative at the district office "returned my copy of the August 1, 2012 Appeals Council Notice after date stamping proof of my September 25, 2012 visit with the hand-written words EXTENSION GIVEN.'" ( Id. at ¶ 5). A copy of that document is attached to Amparo's affidavit.
Steven Rapka, the claims representative who was present at the district office on September 25, 2012, acknowledges that he interviewed Mr. Amparo and stamped Amparo's copy of the Appeals Council notice, memorializing Amparo's appearance at the district office. Rapka states, however, that he "did not write Extension Given' on the Appeals Council notice" and "did not grant Plaintiff an extension of time to file his civil action." (Rapka Decl. at TT 4-8). He adds: "I am neither authorized nor would I grant an extension of time on behalf of the Appeals Council." ( Id. at 119).
Rapka entered into the Social Security Administration's electronic records system a description of Plaintiff's visit to the District Office. That record does not mention the grant of an extension of time. It does, however, state that Mr. Amparo would "be seeing his attorney on 10/4/12, which is close to the end of his appeal period, " and relates that Amparo "was afraid if he didn't visit our office to inform us of his actions, his appeal would be denied due to late filing." A copy of that electronic record is attached to Rapka's certification. (Rapka Cert. ¶ 4 and Ex. A).
Courts are empowered to review final decisions of the Commissioner of Social Security pursuant to 42 U.S.C. §§ 405(g)-(h) and 42 U.S.C. 1383(c)(3).
(g) Judicial review. Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, 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...
(h) Finality of Commissioner's decision. The findings and decisions of the Commissioner of Social Security after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Commissioner of Social Security shall be reviewed by any person, tribunal, or governmental agency except as herein provided...
42 USC § 405 (emphasis added). Here, there is no dispute that the Appeals Council's decision to deny Plaintiff a review of the ALJ's decision constituted a final decision of the Commissioner.
Pursuant to regulation, "mailing" of notice, for purposes of section 405(g), is deemed to occur on the date that the claimant actually receives the Appeals Council's notice of denial. Absent independent proof, the date of receipt is legally presumed to be five days after the date of notice. 20 C.F.R. § 416.1841; ...