Brown v. Social Security, Commissioner of

Filing 23

OPINION and ORDER GRANTING 8 Motion to Dismiss filed by Social Security, Commissioner of, ADOPTING 21 Report and Recommendation Signed by District Judge Paul D. Borman. (DGoo)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBIN R. BROWN,
Plaintiff,

Case No. 11-cv-10572

v.

Paul D. Borman
United States District Judge

COMMISSIONER OF SOCIAL SECURITY,

Michael Hluchaniuk
United States Magistrate Judge

Defendant.
______________________________________/
OPINION AND ORDER (1) ADOPTING THE MAGISTRATE JUDGE’S JANUARY 17, 2012
AMENDED REPORT AND RECOMMENDATION (DKT. NO. 21); (2) DENYING
PLAINTIFF’S OBJECTIONS TO THE REPORT AND RECOMMENDATION (DKT. NO. 22);
and (3) GRANTING DEFENDANT’S MOTION TO DISMISS (DKT. NO. 8)
This matter is before the Court on Plaintiff’s Objections (Dkt. No. 22) to Magistrate Judge
Michael Hluchaniuk’s January 17, 2012 Amended Report and Recommendation (Dkt. No. 21).
Having conducted a de novo review of the parts of the Magistrate Judge’s Report and
Recommendation to which objections have been filed pursuant to 28 U.S.C. § 636(b)(1), the Court
ADOPTS the Magistrate Judge’s Amended Report and Recommendation (Dkt. No. 21), DENIES
Plaintiff’s Objections to the Amended Report and Recommendation (Dkt. No. 22) and GRANTS
Defendant’s Motion to Dismiss (Dkt. No. 8).
I.

BACKGROUND
Magistrate Judge Hluchaniuk’s Amended Report and Recommendation adequately recites

the procedural and factual background in this matter and the Court adopts those sections of the
Report and Recommendation. (Dkt. No. 21, 1-3.) In summary, as relevant to the instant Opinion

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and Order, Plaintiff filed her Complaint in this Court on February 11, 2011, seeking judicial review
of the December 2, 2010 final decision denying her claim for benefits. (Dkt. No. 1, Complaint.)
Simultaneous with the filing of her Complaint, Plaintiff filed an application to proceed in forma
pauperis and an application for appointment of counsel. (Dkt. Nos. 2,3.) On February 14, 2011,
Magistrate Judge Hluchaniuk granted Plaintiff’s motion to proceed in forma pauperis. (Dkt. No.
5.) The Magistrate Judge did not address, at that time, Plaintiff’s application for appointment of
counsel.

On April 25, 2011, the Commissioner filed a motion to dismiss Plaintiff’s Complaint

as untimely filed. (Dkt. No. 8.) Plaintiff requested and was granted a month-long extension of time
within which to respond to the Commissioner’s motion. (Dkt. No. 11.) Plaintiff did respond on July
13, 2011 (Dkt. No. 13) and also requested a further extension of time to respond more fully, which
was granted (Dkt. Nos. 14, 15). The Commissioner filed a reply. (Dkt. No. 16.) On November 21,
2011, the Magistrate Judge issued his original Report and Recommendation agreeing with the
Commissioner that Plaintiff’s Complaint for judicial review was not timely filed and recommending
that the Court grant the Commissioner’s motion to dismiss. (Dkt. No. 18.)
On December 7, 2011, Plaintiff filed a motion for extension of time to file objections to the
Magistrate Judge’s Report and Recommendation and also filed a motion renewing her request for
appointment of counsel. (Dkt. No. 19.) On December 12, 2011, Magistrate Judge Hluchaniuk
issued an Order withdrawing the November 21, 2011 Report and Recommendation, recognizing that
the Court had not yet ruled on Plaintiff’s motion for appointment of counsel. In his December 12,
2011, Magistrate Judge Hluchaniuk denied Plaintiff’s request for appointment of counsel, and gave
Plaintiff an additional thirty (30) days to find counsel or to further supplement her response to
Defendant’s motion to dismiss. The December 12, 2011 Order indicated that if Plaintiff did not take

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appropriate action within that 30 day time frame, the Court would reinstate its Report and
Recommendation. (Dkt. No. 20.)
Plaintiff did not file an objection to the Magistrate Judge’s December 12, 2011 Order, nor
did she supplement her response or indicate to the Court that she had retained counsel. Accordingly,
on January 17, 2012, Magistrate Judge Hluchaniuk filed an Amended Report and Recommendation,
again recommending that the Court grant Defendant’s motion to dismiss Plaintiff’s untimely filed
Complaint. (Dkt. No 21.) Plaintiff filed the instant objections to the Amended Report and
Recommendation on February 3, 2012, three days beyond the date on which her objections were due
per the Amended Report. (Dkt. No. 22.)
II.

STANDARD OF REVIEW
A district court must conduct a de novo review of the parts of a magistrate judge's report and

recommendation to which a party objects. 28 U.S.C. § 636(b)(1). A district “court may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge.” Id. A general objection, or one that merely restates the arguments previously presented,
does not sufficiently identify alleged errors on the part of the magistrate judge. An “objection” that
does nothing more than disagree with a magistrate judge's conclusion, or simply summarizes what
has been argued before, is not considered a valid objection. Howard v. Sec'y of Health and Human
Servs., 932 F.2d 505, 508 (6th Cir.1991).
III.

ANALYSIS
The Court first notes that Plaintiff’s objections were not timely filed. The Magistrate Judge’s

Amended Report and Recommendation clearly stated that Plaintiff had fourteen (14) days from the
date of service (January 17, 2012) to file specific objections to the Report. (Dkt. No. 21, p. 13.)

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Plaintiff’s objections were thus due on or before January 31, 2012, which fell on a Tuesday.
Plaintiff filed her objections three days later, on February 3, 2012. “A party's failure to timely file
objections to a report and recommendation generally constitutes a waiver of that party's right to
appeal that decision.” United States v. Branch, 537 F.3d 582, 587 (6th Cir. 2008). However, even
were the Court to consider Plaintiff’s untimely objections, the Court concludes, on de novo review,
that Plaintiff’s objections lack merit.
A.

The Magistrate Judge Correctly Denied Plaintiff’s Application for the
Appointment of Counsel (Objection No. 1)

As an initial matter, the Court notes that Plaintiff never filed an objection to Magistrate Judge
Hluchaniuk’s December 12, 2011 Order denying her application for appointment of counsel. While
Plaintiff continues to complain about the Magistrate Judge’s denial of her application for
appointment of counsel in her February 3, 2012 Objections, she never filed a timely objection to the
December 12, 2011 Order.
In any event, the Court finds that the Magistrate Judge correctly denied Plaintiff’s application
for the appointment of counsel. The decision whether to appoint counsel rests within the sound
discretion of the district court. Henry v. City of Detroit Manpower Dep’t, 763 F.2d 757, 760 (6th
Cir. 1985). “Appointment of counsel in a civil case is not a constitutional right. It is a privilege that
is justified only by exceptional circumstances.” Lavado v. Keohane, 992 F.2d 601, 605-06 (6th Cir.
1993). “In determining whether ‘exceptional circumstances’ exist, courts have examined the type
of case and the abilities of the plaintiff to represent himself.” Id. at 606 (internal quotation marks
and citations omitted).
Magistrate Judge Hluchaniuk correctly concluded that Plaintiff, who was assisted by counsel
in her administrative hearings, has demonstrated that she has an independent understanding of the
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issues involved in her social security appeal, and also understands the procedural mechanisms
available to her, having multiple times in this Court sought and been granted extensions of time to
file responsive pleadings. Magistrate Judge Hluchaniuk correctly concluded that Plaintiff has failed
to demonstrate “exceptional circumstances” that would justify appointment of counsel in this civil
case.
B.

Magistrate Judge Hluchaniuk Correctly Concluded That Plaintiff’s Complaint
Should be Dismissed as Untimely (Objection Nos. 2, 3)

There is no dispute that the Administrative Law Judge’s (“ALJ”) September 26, 2008
decision in this case became final on December 2, 2010, when the Appeals Council denied
Plaintiff’s request for review. (Dkt. No. 8, Ex. 1, Declaration of Patrick J. Herbst ¶ 3(a) Ex. 1.) The
December 2, 2010 Appeals Council Notice of Action plainly states that Plaintiff has 60 days from
receipt of that Notice to file a civil action seeking court review of the final decision of the
Commissioner. The Appeals Council Notice further states that Plaintiff will be assumed to have
received the Notice five (5) days after its date, in this case resulting in a December 7, 2010 date of
receipt. The Appeals Council Notice clearly explains that a request for an extension of the 60-day
time limit for filing a civil suit challenging the final decision of the Commissioner must be made in
writing, must contain good reason for the request and must be mailed to the Appeals Council at the
address indicated on the Notice. (Dkt. No. 13, Pl.’s Resp. 9.) Plaintiff’s filing was accordingly due
in this Court no later than February 7, 2011. Plaintiff filed her Complaint four days late - on
February 11, 2011.
The Commissioner indicates in his motion to dismiss that Plaintiff did not request from the
Appeals Council an extension of time to file a civil action, although the process for doing so was
explained in detail in the December 2, 2010 Notice of Appeals Council Action. (Dkt. No. 8, Herbst
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Decl. ¶ 3(b).) Indeed, Plaintiff concedes twice in her Objections that she never requested an
extension of time from the Appeals Council. (Dkt. No. 22, Pl.’s Objs. 7, 10.) Instead of following
the express instructions for seeking an extension of time that were set forth in her December 2, 2010
Notice of Appeals Council Action, on December 10, 2010, Plaintiff wrote a letter to the
Commissioner of Insurance complaining about the December 2, 2010 final denial of benefits. (Dkt.
No. 13, Pl.’s Resp. 10.) In response, on January 7, 2011, the Associate Commissioner of Insurance
responded to Plaintiff’s letter, explaining that the December 2, 2010 Notice of Appeals Council
Action was the final decision in her case and explaining: “You may, of course, file a civil action in
the appropriate United States District court within 60 days after receiving the Appeals Council’s
decision notice.” (Dkt. No. 13, Pl.’s Resp. 13.)
Plaintiff argues that she was “confused” by the January 7, 2011 letter from the Commissioner
and thought that the March 17, 2010 date mentioned in that letter was the “final decision” in her case
and that she believed that her 60 day time limit began to run on January 7, 2011, the date of the
Commissioner’s response to her letter. The Court agrees with Magistrate Judge Hluchaniuk’s
conclusion that Plaintiff’s “confusion” is patently implausible and that her correspondence to the
Commissioner did nothing to impliedly extend her time to file a civil action. Plaintiff cannot create
an implied extension of time by ignoring the directive in the Notice to apply to the Appeals Council
for an extension of time and instead writing a letter to the Commissioner of Insurance. Biron v.
Harris, 668 F.2d 259, 261 (6th Cir. 1982) (holding that the time limitations in 42 U.S.C. § 405 are
jurisdictional and cannot be waived and that correspondence with the Commissioner’s secretary
cannot create an implied extension of those limitations). Any other conclusion would vitiate the
time limits for filing a civil suit and make a mockery of the process for seeking an extension of time

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as explained in the Appeals Council Notice.
Additionally, the Court agrees with the Magistrate Judge’s conclusion that there was nothing
confusing about the January 7, 2011 letter from the Commissioner, which clearly reiterated that the
December 2, 2010 Appeals Council Notice was the final decision in Plaintiff’s case and
reemphasizing Plaintiff’s appeal rights with respect to that Notice. Plaintiff’s four-day delay in
filing suit in this Court was without excuse and necessitates dismissal of her claim. Several courts
in this circuit and district have recognized that the statute of limitations applicable to social security
appeals is to be strictly construed, with the result that even one-day delays have required dismissal.
Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 437 (6th Cir. 2007) (finding a one-day delay
necessitated dismissal); Burton v. Comm’r of Soc. Sec., No. 10-14040, 2011 WL 3862346 (E.D.
Mich. Feb. 25, 2011) (recognizing that courts have strictly construed the statute of limitations in
social security appeals and finding plaintiff’s two week delay justified dismissal of her claim);
Goldsmith v. Comm’r of Soc. Sec., No. 09-627, 2010 WL 2507970 (W.D. Mich. May 25, 2010)
(finding an eight day delay necessitated dismissal).
The Court further agrees with the Magistrate Judge’s finding that equitable tolling cannot
be applied in this case. The doctrine of equitable tolling requires the Court to examine: (1) whether
Plaintiff had actual or constructive notice of the filing deadline; (2) whether Plaintiff was diligent
in pursuing her rights; (3) whether prejudice to the Commissioner will result if equitable tolling is
applied; and (4) whether Plaintiff was reasonable in remaining ignorant of the legal requirements
for filing her claim. Cook, 480 F.3d at 437 (quoting Dunlap v. United States, 250 F.3d 1001, 1008
(6th Cir. 2001)). There is no question that the December 2, 2010 Notice of Appeals Council Action
informed Plaintiff of the filing deadline and that the January 7, 2011 letter from the Commissioner

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confirmed that the deadline for filing her civil action was 60 days from receipt of that December 2,
2010 Notice. See Cook 480 F.3d at 437 (finding that plaintiff could not argue lack of actual notice
when he had acknowledged receipt of the Appeals Council Notice specifically informing him of the
60 day filing deadline).
Plaintiff was not diligent in pursuing her rights because she chose to ignore the express
instructions for seeking an extension of time within which to file her civil action and has offered no
explanation for her failure to seek an extension. Even assuming Plaintiff was unclear about her
appeal rights based on the December 2, 2010 Notice, the January 7, 2010 letter reaffirmed this
information and Plaintiff still had a month within which to seek an extension or timely file a claim.
She did neither and the Court finds no justification for her failure to ignore the filing and extension
deadlines. Finally, the Court concludes that, while standing alone Plaintiff’s four-day delay in one
case may not seem burdensome to the Commissioner, given the heavy burden faced by the Social
Security Administration in the “millions” of applications it receives it each year, the filing deadline
must be strictly enforced. Cook, 480 F.3d at 437 (refusing to apply the doctrine of equitable tolling
where plaintiff filed one day late, noting that “[a]lthough allowing Cook to file his complaint one
day late likely would create little prejudice to the Commissioner in this particular case, we are
mindful of the fact that there are millions of applicants for Social Security benefits each year, and
that the lack of a clear filing deadline could create havoc in the system.”)
IV.

CONCLUSION
For the foregoing reasons, the Court:
(1) ADOPTS the Magistrate Judge’s January 17, 2012 Amended Report and

Recommendation (Dkt. No. 21).

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(2) DENIES Plaintiff’s Objections to the Amended Report and Recommendation (Dkt. No.
22); and
(3) GRANTS Defendant’s Motion to Dismiss (Dkt. No. 8).
IT IS SO ORDERED.

S/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: April 30, 2012
CERTIFICATE OF SERVICE
Copies of this Order were served on the attorneys of record by electronic means and upon
Robin R. Brown; 2256 W. Philadelphia; Detroit, MI 48206 by U.S. Mail on April 30, 2012.

S/Denise Goodine
Case Manager

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