United States District Court, S.D. Ohio, Eastern Division
Michael H. Watson, Judge
REPORT AND RECOMMENDATION
CHELSEY M. VASCURA, UNITED STATES MAGISTRATE JUDGE
Emily Hill (“Plaintiff”), brings this action
under 42 U.S.C. § 405(g) for review of a final decision
of the Commissioner of Social Security
(“Commissioner”) denying her application for
restitution of benefits due to misuse of funds for survivor
beneficiary (ECF No. 3). This matter is before the Court on
the Commissioner's Motion to Dismiss Plaintiff's
Untimely Complaint, or Alternatively, Motion for Summary
Judgment (ECF No. 8) and Plaintiff's Response to
Defendant's Declaration (ECF No. 9). The Commissioner has
not filed a reply, and the time to do so has now expired. For
the reasons that follow, it is RECOMMENDED
that Plaintiff's Complaint be DISMISSED
January 30, 2019, an Administrative Law Judge
(“ALJ”) issued a decision denying the
Plaintiff's claim for Restitution of Benefits Due to
Misuse of Funds for Survivor Beneficiary and mailed a copy
thereof to the Plaintiff and her representative. (Voegele
Dec. ¶ 3(a), ECF No. 8-1; ALJ Decision, ECF No. 8-1,
PAGEID #52.) Plaintiff requested review of the decision, and
on June 12, 2019, the Appeals Council denied that request.
(Voegele Dec. ¶ 3(a), ECF No. 8-1; Notice of Appeals
Council Action, ECF No. 8-1, PAGEID #62.) The Notice of the
Appeals Council's action informed both Plaintiff and her
lawyer that they had sixty days from the date of receipt to
commence an action in federal court. (Id.) The
Appeals Council's denial was sent by mail addressed to
both the Plaintiff, at her home address, with a copy to the
representative, at his legal office. (Id.) The
Appeals Council's denial of review rendered the ALJ's
decision the “final decision” of the
Commissioner, subject to judicial review under 42 U.S.C.
§ 405(g). See 20 C.F.R. § 404.981. The
Commissioner does not have any records of Plaintiff asking
for extension to file a civil action nor does she allege in
her Complaint that she requested such an extension. (Voegele
Dec. ¶ 3(a), ECF No. 8-1; Compl., ECF No. 3.) Plaintiff
did not file her Complaint for judicial review of the
ALJ's decision until August 20, 2019, which was four days
after the deadline. (ECF No. 3). Her Complaint did not allege
that it was timely, nor did she allege she had good cause for
filing her complaint after the deadline. (Id.)
Commissioner filed the present motion on October 25, 2019.
(ECF No. 8.) Although Plaintiff's memorandum in
opposition was due on November 15, 2019, Plaintiff's
counsel waited until November 26, 2019, to file a
“Response to Defendant's Declaration.” (ECF
No. 9.) In this response, Plaintiff's counsel admitted
that “a complaint should have been filed in court by
August 16, 2019 at the latest.” (Resp. 1, RCF No. 9).
He further stated that, “[i]nstead, plaintiff's
complaint was filed on August 20, 2019, based on the
claimant's attorney's notation on his deadlines
calendar that this date was the last date to file within
time.” (Id. 1-2.) Plaintiff's counsel
explains that he simply miscounted the applicable 60-day
period and noted the incorrect deadline in his records.
STANDARD OF REVIEW
Standard of review for dismissal under Rule 12(b)(6)
Rule 12(b)(6), a court may dismiss a complaint for
“failure to state a claim upon which relief can be
granted.” Fed.R.Civ.P. 12(b)(6). When reviewing a
motion to dismiss under Rule 12(b)(6), the Court must
“accept non-conclusory allegations of fact in the
complaint as true and determine if the plaintiff has stated a
plausible clam for relief.” Orton v. Johnny's
Lunch Franchise, LLC, 668 F.3d 843, 846 (6th Cir. 2012)
(citing Ashcroft v. Iqbal, 556 U.S. 662, 678-79
(2009)). “[A] complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.' A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 556, 570 (2007)).
The Court need not convert the Commissioner's motion to
dismiss to a motion for summary judgment.
initial matter, the Undersigned finds that all documents
submitted as exhibits by the Commissioner in support of
summary judgment were referenced in Plaintiff's
Complaint. (ECF No. 3, ¶ 2.) Accordingly, there is no
need to convert the Commissioner's motion to dismiss
under Rule 12(b)(6) to a motion for summary judgment under
Rules 12(d) and 56. Commercial Money Ctr., Inc. v. Ill.
Union Ins. Co., 508 F.3d 327, 335-36 (6th Cir. 2007)
(“[W]hen a document is referred to in the pleadings and
is integral to the claims, it may be considered without
converting a motion to dismiss into one for summary
judgment”). Therefore, the Undersigned considers the
Commissioner's motion for summary judgment under the same
standard as the motion to dismiss.
undisputed facts establish that Plaintiff's Complaint was
untimely. Section 405(g) of the Social Security Act provides
that “any individual . . . 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.” 42 U.S.C. § 405(g). The implementing
regulations consistently provide, “[a]ny civil action .
. . must be instituted within 60 days after the Appeals
Council's notice of denial of request for review of the
administrative law judge's decision . . . is received by
the individual . . . except that this time may be extended by
the Appeals Council upon a showing of good cause.” 20
C.F.R. § 422.210(c). A claimant is presumed to have
received the notice of the Appeals Council's denial of
request for review five days after the date of the notice,
unless the claimant can make a reasonable showing otherwise.
Id. Applying these rules here, Plaintiff is presumed
to have received the June 12, 2019 letter by June 17, 2019.
Thus, Plaintiff had to file her Complaint on or before August
16, 2019, in order to comply with the limitations period of
§ 405(g). Plaintiff did not file until August 20, 2019.
counsel, although he admits the Complaint was untimely,
appears to argue that equitable tolling should save
Plaintiff's Complaint. “Section 405(g) of the
Social Security Act authorizes the Commissioner to toll the
60-day limitations period under appropriate
circumstances.” Cook v. Comm'r of Soc.
Sec., 480 F.3d 432, 437 (6th Cir. 2007). In
Cook, the United States Court of Appeals for the
Sixth Circuit set forth the ...