United States District Court, S.D. Ohio, Western Division, Dayton
SUSAN L. NASON, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendants.
M. Rose District Judge.
REPORT AND RECOMMENDATION THAT
DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A
CLAIM (DOC. 12) BE DENIED
Michael J. Newman United States Magistrate Judge.
Social Security disability benefits appeal is before the
Court on the Commissioner's motion to dismiss. Doc. 12.
Plaintiff filed a memorandum in opposition. Doc. 13. The
Commissioner did not file a reply, and the time for doing so
facts as relevant to the Commissioner's motion to dismiss
are undisputed. Plaintiff's application for Social
Security disability insurance benefits (“DIB”)
was denied by an Administrative Law Judge (“ALJ”)
on May 29, 2014. Doc. 2 at PageID 16. Thereafter, the Appeals
Council affirmed the ALJ's decision on December 1, 2015.
Id. Plaintiff filed her motion for leave to proceed
in forma pauperis (“IFP”) in this Court
on February 12, 2016 (doc. 1),  seventy-three (73) days after the
date of the Appeals Council's notice. See doc.
12-2 at PageID 108. (“IFP”). Doc. 1. The
Commissioner now moves to dismiss Plaintiff's complaint
arguing that it was not timely filed within the 60-day appeal
period provided for in 42 U.S.C. § 405(g). Doc. 12.
review of Social Security decisions is governed by 42 U.S.C.
§ 405(g), which provides that:
Any individual, after any final decision of the Commissioner
. . . made after a hearing to which he was a party . . . may
obtain a review of such decision by a civil action commenced
within sixty days after the mailing to him [or her] of notice
of such decision or within such further time as the
Commissioner . . . may allow.
regulations define “mailing” as the date the
individual receives the Appeals Council's notice of a
denial of a request for review. See 20 C.F.R. §
422.210(c). The date of receipt is presumed to be 5 days
after the date of issuance of such notice by the Appeals
Council, unless there is a reasonable showing to the
contrary. See 20 C.F.R. §§ 404.901,
422.210(c); see also Cook v. Comm'r of Soc.
Sec., 480 F.3d 432, 435-36 (6th Cir. 2007). The 60-day
time limit for seeking judicial review of an ALJ's
decision is not a jurisdictional bar but, rather, a statute
of limitations subject to equitable tolling. Cook,
480 F.3d at 435. In determining whether equitable tolling is
appropriate under the circumstances, courts consider the
(1) the petitioner's lack of [actual] notice of the
filing requirement; (2) the petitioner's lack of
constructive knowledge of the filing requirement; (3)
diligence in pursuing one's rights; (4) absence of
prejudice to the respondent; and (5) the petitioner's
reasonableness in remaining ignorant of the legal requirement
for filing his claim.
Id. (citing Dunlap v. United States, 250
F.3d 1001, 1008 (6th Cir. 2001)).
the Appeals Council's notice is dated December 1, 2015.
Doc. 13 at PageID 116. Under the Commissioner's
regulations, supra, Plaintiff presumptively received
that notice in the mail on or before December 6, 2015.
See 20 C.F.R. §§ 404.901, 422.210(c).
Assuming Plaintiff received the notice on December 6, 2015,
her appeal was due to be filed 60 days later, i.e.,
on or before February 4, 2016. Again, Plaintiff did not
initiate this appeal until February 12, 2016, i.e.,
eight days after expiration of the presumptive deadline for
filing an appeal. Doc. 1. Thus, without dispute, this case
was not timely filed and the issue is whether equitable
tolling is appropriate under the circumstances.
to expiration of the limitations period, Plaintiff did,
through counsel, request “additional time to file the
Appeal due to a medical emergency in [counsel's] office
and [counsel's] current caseload.” Doc. 13 at
PageID 115. Thus, there is evidence of diligence on
Plaintiff's part to pursue her rights. Id.
Further, the Commissioner demonstrates no prejudice resulting
from Plaintiff's slight delay in filing suit in this
Court. Accordingly, the undersigned finds equitable tolling
appropriate in this case and RECOMMENDS that the
Commissioner's motion to dismiss (doc. 12) be DENIED.
to Fed.R.Civ.P. 72(b), any party may serve and file specific,
written objections to the proposed findings and
recommendations within FOURTEEN days after being served with
this Report and Recommendation. This period is not extended
by virtue of Fed.R.Civ.P. 6(d) if served on you by electronic
means, such as via the Court's CM/ECF filing system. If,
however, this Report and Recommendation was served upon you
by mail, this deadline is extended to SEVENTEEN DAYS by
application of Fed.R.Civ.P. 6(d). Parties may seek an
extension of the deadline to file objections by filing a
motion for extension, which the Court may grant upon a
showing of good cause.
objections filed shall specify the portions of the Report and
Recommendation objected to, and shall be accompanied by a
memorandum of law in support of the objections. If the Report
and Recommendation is based, in whole or in part, upon
matters occurring of record at an oral hearing, the objecting
party shall promptly arrange for the transcription of the
record, or such portions of it as all parties ...