Cook v. Commissioner of Social Security
Filing
15
MEMORANDUM OPINION AND ORDER by Magistrate Judge Lanny King on 11/3/2016 granting the Commissioner's 11 MOTION to Dismiss. cc: Counsel (CDR)
ADAM D. COOK
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:16‐CV‐00089‐LLK
PLAINTIFF
DEFENDANT
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security
MEMORANDUM OPINION AND ORDER
This matter is before the Court upon the Commissioner’s motion to dismiss Plaintiff’s complaint
seeking judicial review of the final decision of the Commissioner as having been filed outside the 60‐day
statute of limitations established by 42 U.S.C. § 405(g), to which Plaintiff responded in opposition, and
the Commissioner replied. Dockets 11, 13, and 14. The parties consented to the jurisdiction of the
undersigned Magistrate Judge to determine this case, with any appeal lying before the Sixth Circuit
Court of Appeals. Docket 12. The matter is ripe for determination.
Because the complaint was filed outside the applicable statute of limitations and no factor
supports equitable tolling, the motion to dismiss will be GRANTED.
Discussion
42 U.S.C. 405(g) provides a 60‐day window in which to obtain review of a final decision of the
Commissioner:
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
(emphasis added) to him of notice of such decision or within such further time as the
Commissioner of Social Security may allow.
“The Commissioner has interpreted ‘mailing’ as the date of the applicant's receipt of the decision, and
the date of receipt is presumed to be five days after the notice's date, unless the applicant makes a
reasonable showing to the contrary.” Harris v. Commissioner, 2001 WL 1590669 (6th Cir.) citing 20
C.F.R. 422.210(c).
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It is undisputed that the complaint was filed outside the statute of limitations. In a notice dated
March 22, 2016, the Appeals Council affirmed the administrative law judge’s decision and informed
Plaintiff that “[y]ou have 60 days to file a civil action (ask for court review).” Appeals Council’s decision,
Docket 11‐1, p. 23. Plaintiff does not allege that he actually received the notice other than within the 5‐
day presumption. Therefore, the statute of limitations began running on or about March 28, 2016, and
the 60‐days expired on or about May 28, 2016. The complaint was filed on June 3, 2016.
Plaintiff claims that he is entitled to equitable tolling of the statute of limitations.
When determining whether equitable tolling should apply, the Sixth Circuit considers five
factors: “(1) [Plaintiff’s] lack of [actual] notice of the filing requirement; (2) [Plaintiff’s] lack of
constructive knowledge of the filing requirement; (3) diligence in pursuing [Plaintiff’s] rights; (4) absence
of prejudice to the [Commissioner]; and (5) [Plaintiff’s] reasonableness in remaining ignorant of the legal
requirement for filing his claim.” Kellum v. Commissioner, 295 Fed.Appx. 47, 2008 WL 4428413 (6th Cir.)
citing Cook v. Commissioner, 480 F.3d 432, 437 (6th Cir.2007). For purposes of analyzing equitable
tolling, there is no distinction between Plaintiff’s actions and inactions and those of counsel because
“the actions of a privately retained attorney are imputed to the client.” Id. citing Pioneer Investment
Servs. Co. v. Brunswick Associates Ltd. Partnership, 507 U.S. 380, 396‐97 (1993).
Factors 1, 2, and 5 are of no relevance in this case because Plaintiff does not allege that he was
unaware of the filing requirement.
Factor 4 does not support equitable tolling because neither Plaintiff nor counsel were
particularly diligent in pursuing Plaintiff’s rights. Plaintiff and his counsel agreed that Plaintiff would file
his complaint contemporaneously with a motion to proceed in forma pauperis. Counsel asked Plaintiff
to provide him with the information necessary to file the motion and made Plaintiff aware of the statute
of limitations. Docket 13, p. 2. Rather than calendaring the complaint’s due‐date, however, counsel
assumed that Plaintiff would provide him the information in a timely manner, and this would serve as
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his “prompt[] to timely file the Complaint.” Id. Plaintiff did not provide the information in a timely
manner.
This type of plain, simple mistake does not support an equitable‐tolling claim, which requires a
showing that the deadline was missed due to any “extraordinary occurrence beyond [Plaintiff’s or
counsel’s] control.” Kellum, supra; see also Holland v. Florida, 130 S.Ct. 2549, 2564 (2010) (A “garden
variety claim of excusable neglect” does not warrant equitable tolling”) and Patterson v. Lafler, 455 F.
App'x 606, 609 (6th Cir.2012) (“Attorney neglect or error does not generally give rise to equitable
tolling”).
Factor 3 is of no relevance because courts consider it only after another factor (not present
here) is found to support equitable tolling. See Kellum, supra, citing Baldwin County Welcome Ctr. v.
Brown, 466 U.S. 147, 152 (1984) (“Although absence of prejudice is a factor to be considered in
determining whether the doctrine of equitable tolling should apply once a factor that might justify such
tolling is identified, it is not an independent basis for invoking the doctrine and sanctioning deviations
from established procedures”); see also Cook, supra, at 437 (While there may be no actual prejudice to
the Commissioner in a particular case, “there are millions of applicants for Social Security benefits each
year, and … the lack of a clear filing deadline could create havoc in the system”).
No factor supports equitable tolling.
ORDER
Therefore, the Commissioner’s motion to dismiss (Docket 11) is hereby GRANTED.
November 3, 2016
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