Brown v. Social Security, Commissioner of
Filing
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OPINION AND ORDER REJECTING 11 REPORT AND RECOMMENDATION AND GRANTING 5 MOTION to Dismiss filed by Social Security, Commissioner of. Signed by District Judge Paul D. Borman. (DTof)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROSHAWN L. BROWN,
Case No. 14-12525
Plaintiff,
Paul D. Borman
United States District Judge
v.
Patricia T. Morris
United States Magistrate Judge
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
______________________________/
OPINION AND ORDER: (1) GRANTING DEFENDANT’S OBJECTIONS (ECF NO. 13);
REJECTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION (ECF NO. 11);
AND (3) GRANTING DEFENDANT’S MOTION TO DISMISS (ECF NO. 5)
Now before the Court is Defendant Commissioner of Social Security’s (“Defendant”)
Objections to Magistrate Judge Patricia T. Morris’ December 11, 2014 Report and
Recommendation wherein she suggested that this Court deny Defendant’s motion to dismiss.
(ECF No. 13, Objections). The Plaintiff filed a response to Defendant’s Objections. (ECF No.
15). 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 GRANTS Defendant’s Objections, REJECTS the Magistrate Judge’s Report and
Recommendation, GRANTS Defendant’s Motion to Dismiss (ECF No. 5).
I. BACKGROUND
Plaintiff Roshawn L. Brown brings this action pursuant to 42 U.S.C. § 405(g),
challenging the final decision of Defendant denying his application for Disability Insurance
Benefits (“DIB”) under the Social Security Act (the “Act”). Plaintiff’s application for benefits
was denied by an Administrative Law Judge on January 17, 2013. Thereafter, Plaintiff appealed
the unfavorable decision to the Appeals Council. The ALJ’s denial became the final decision of
Defendant on April 19, 2014 when the Appeals Council denied his appeal.
Defendant provides that the Notice of Appeals Council Action (“Notice”) was mailed to
Plaintiff and his counsel on April 19, 2014. (ECF No. 6, Herbst Decl. ¶ 3(a)). Plaintiff argues
that his counsel received the Notice on April 28, 2014. Plaintiff relies upon an affidavit of
Plaintiff’s counsel’s legal assistant who processes daily mail (ECF No. 9, Ex. 2, McNeilly Aff.)
and a copy of the Notice that was sent to Plaintiff’s counsel which was stamped with the
following:
RECEIVED
APR 28, 2014
BY _______
(ECF No. 9, Ex. 1).
Plaintiff filed the present complaint on June 26, 2014. Thereafter, Defendant moved to
dismiss Plaintiff’s complaint on the basis that it was filed past the statute of limitations as
provided in the Act and Regulations. (ECF No. 5). Plaintiff filed a response and Defendant
thereafter filed a reply. (ECF Nos. 9, 10).
On December 11, 2014, Magistrate Judge Morris issued her Report and Recommendation
suggesting that the Court should deny Defendant’s motion to dismiss. Magistrate Judge Morris
concluded that Plaintiff had rebutted the presumption that he received the Notice on April 24,
2014, by evidencing that his attorney actually received the Notice on April 28, 2014. Magistrate
Judge Morris then concluded that because Plaintiff had made a “reasonable showing” that the
Notice was not received until April 28, 2014, then the statute of limitations did not run out until
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June 27, 2014 and Plaintiff’s complaint, which was filed on June 26, 2014, was timely.
On January 14, 2015, Defendant filed the present Objections to the Magistrate Judge’s
Report and Recommendation and the Plaintiff filed a response. (ECF Nos. 13, 15).
II. STANDARD OF REVIEW
Where a party has objected to portions of a Magistrate Judge’s Report and
Recommendation, the Court conducts a de novo review of those portions. FED. R. CIV. P. 72(b);
Lyons v. Comm’r of Soc. Sec., 351 F. Supp. 2d 659, 661 (E.D. Mich. 2004). The Court notes that
while Defendant frames the present motion as a motion to dismiss pursuant to Federal Rule
12(b)(6), both Plaintiff and Defendant have submitted evidence to the Court that was not
excluded by the Magistrate Judge. Indeed, Plaintiff submitted two affidavits as well as the datestamped Notice itself, and Defendant also submitted the Declaration of Patrick J. Herbst in
support of its motion. Therefore, where such evidence is presented to and not excluded, the
motion must be treated as a motion for summary judgment pursuant to Federal Rule of Civil
Procedure 56. See FED. R. CIV. P. 12(d).
This rule provides that a court “shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” If this burden is met by the moving party, the non-moving party=s failure to
make a showing that is “sufficient to establish the existence of an element essential to that
party=s case, and on which that party will bear the burden of proof at trial” will mandate the entry
of summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The non-moving
party may not rest upon the mere allegations or denials of his pleadings, but the response, by
affidavits or as otherwise provided in Rule 56, must set forth specific facts which demonstrate
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that there is a genuine issue for trial. FED. R. CIV. P. 56(e). The rule requires the non-moving
party to introduce “evidence of evidentiary quality” demonstrating the existence of a material
fact. Bailey v. Floyd County Bd. of Educ., 106 F.3d 135, 145 (6th Cir. 1997); see Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (holding that the non-moving party must produce
more than a scintilla of evidence to survive summary judgment).
III. ANALYSIS
“The 60-day limit for seeking review of an adverse Social-Security-benefits
determination is ‘not jurisdictional but a period of limitations.’” Cook v. Comm’r of Soc. Sec.,
480 F.3d 432, 436 (6th Cir. 2007) (citing Day v. Shalala, 23 F.3d 1052, 1058 (6th Cir. 1994)).
Section 405(g) of the Act provides that:
Any individual, after any final decision of the Commissioner 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.
42 U.S.C. § 405(g). Although the Act uses the phrase “after the mailing”, “the regulations
clarify that the 60-day period begins five days after the date of the denial notice.” Cook, 480
F.3d at 436. Indeed, the regulations state that any action:
must be instituted within 60 days after the Appeals Council’s notice of denial
request for review of the administrative law judge’s decision or notice of the
decision by the Appeals Council is received by the individual, institution, or
agency, except this time may be extended by the Appeals Council upon a showing
of good cause. For purposes of this section, the date of receipt of notice of denial
of request for review of the presiding officer’s decision or notice of the decision
by the Appeals Council shall be presumed to be 5 days after the date of such
notice, unless there is a reasonable showing to the contrary.
20 C.F.R. § 422.210(c).
Accordingly, the Sixth Circuit has held that “the date for filing a Social Security
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complaint runs from the date that the applicant receives the SSA’s denial notice [or denial of a
request for a review], not from the date of mailing.” Cook, 480 F.3d at 436 (citing McKentry v.
Sec’y of Health and Human Servs., 655 F.2d 721, 724 (6th Cir. 1981)). A plaintiff can rebut the
presumption that he or she received the Notice within five days of the date of the Notice by a
“reasonable showing to the contrary.” Harris v. Comm’r of Soc. Sec., 25 F. App’x 273, 274 (6th
Cir. 2001). The Sixth Circuit has strictly construed this statute of limitations. See Cook, 480
F.3d at 437 (affirming the dismissal of a complaint filed one day late).
In the present action, Defendant has set forth through declaration that the Notice was
mailed on April 19, 2014. (ECF No. 6, Herbst Decl. ¶ 3(a)). Therefore, if the presumption is not
rebutted, Plaintiff had until June 23, 2014 to file his Complaint with this Court. If Plaintiff can
“reasonably show” that he received the Notice on April 28, 2014, then his Complaint was due on
June 27, 2014 and his June 26, 2014 Complaint was timely filed.
Defendant makes two objections to the Magistrate Judge’s Report and Recommendation:
(1) that Plaintiff failed to set forth any evidence regarding when the Plaintiff himself received the
Notice, as opposed to his counsel, and therefore his arguments are irrelevant; and (2) Plaintiff’s
submitted evidence does not constitute a “reasonable showing” that the Notice was actually
received by Plaintiff on April 28, 2014.
As an initial matter, the Court notes that ordinarily when a Defendant fails to make an
argument to the Magistrate Judge, such an argument is waived. Murr v. United States, 200 F.3d
895, 902 n .1 (6th Cir. 2000); see also Heston v. Comm’r of Soc. Sec., 245 F.3d 528 (6th Cir.
2001). Here, Defendant failed to set forth the argument to the Magistrate Judge that in the Sixth
Circuit it is non-receipt by the claimant, rather than the claimant’s attorney, that is significant for
determining whether the presumption has been rebutted. (See ECF No. 13, n. 1, acknowledging
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that the argument was not raised in the papers filed with the Magistrate Judge). However, the
Court finds that Magistrate Judge acknowledged this correct legal conclusion in her Report and
Recommendation but misapplied the facts in the record. Therefore, the Court will not disregard
Defendant’s argument that to rebut the presumption, Plaintiff must show that he, himself, did not
receive the Notice within five days of the mailing date.
Indeed, the Magistrate Judge made clear in the Report and Recommendation that “[t]he
question, in this case, is whether a date-received stamp, stamped on the Notice by Plaintiff’s
attorney’s legal assistant upon receipt, is ‘actual evidence’ that Plaintiff received the Notice after
the five days, thus rebutting the presumption.” (R&R, at *4, emphasis added). This statement is
consistent with the law of the courts in the Sixth Circuit that have addressed the issue, which
have found that “plaintiff herself must rebut the presumption that plaintiff received the Appeals
Council decision”. Salter v. Colvin, 4:12-cv-888, 2014 WL 1280269, *5-6 (N.D. Oh. Mar. 27,
2014) (relying upon the Sixth Circuit’s decision in Cook to find that the individual referenced in
the statute is the claimant rather than her attorney); see also Ashcraft v. Astrue, 5:11-cv-00144-R,
2012 WL 1231789, *2-3 (N.D. Ohio. Apr. 12, 2012) (finding same); Singleton v. Comm’r of Soc.
Sec., No. 1:09-CV-933, 2010 WL 3734053, at *1 (W.D. Mich. Sept. 20, 2010) (concluding that
“[t]he ‘individual’ referenced by the statute is the claimant or applicant for Social Security
benefits”.). The Magistrate Judge then concluded that Plaintiff had reasonably shown he did not
receive Notice within five days of the mailing day of the Notice. However, the Court finds that
Plaintiff failed to set forth any evidence, affidavit or otherwise, that indicated if or when he,
himself, received the Notice. In response to Defendant’s objections, Plaintiff did submit an
affidavit that states he “concurs in the factual statements contained” in the Response to the
Objection. (ECF No. 15, Ex. 1, Brown Aff. ¶¶ 1-2). However, the Response to the Objection
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merely asserts that Plaintiff “has no records, whatsoever, indicating the date the denial was
received by him”. (ECF No. 15, at *2). Accordingly, Plaintiff is silent on the issue and did not
make any claim, though affidavit or otherwise, to this Court or the Magistrate Judge that he
received the Notice after (or before) April 24, 2014.
Additionally, Plaintiff has made no legal argument nor recited any case law that would
support the conclusion that a claimant could rebut the five day mailing presumption solely
through a date stamped Notice and corroborating affidavit of the date the Notice was received by
the claimant’s legal counsel. See Salter, 4:12-cv-888, 2014 WL 1280269, *5 (N.D. Oh. Mar. 27,
2014) (“No circuit that has addressed the issue has stated that receipt of notice by the claimant’s
attorney can wholly replace receipt by the claimant herself.”); Ashcraft, 5:11-cv-00144-R, 2012
WL 1231789, *2-3 (N.D. Ohio. Apr. 12, 2012) (rejecting Magistrate Judge’s recommendation
that “the date of the counsel’s receipt of notice supersedes the five-day presumption of delivery
to the claimant in 20 C.F.R. 422.210(c)” and finding claim untimely when “Plaintiff is silent on
the matter since no affidavit or statement has been present on whether she received notice from
the Appeals Council or not.”).
Finally, the Magistrate Judge concluded that the date stamped document and the
corroborating affidavit of Plaintiff’s counsel’s assistant was sufficient to rebut the presumption
by relying on Pettway v. Barnhart, 233 F. Supp. 2d 1354, 1357-58 (S.D. Ala. 2002). Yet, the
Pettway decision is distinguishable from the facts of this action. In Pettway, the court found that
the claimant had rebutted the presumption by relying upon (1) the claimant’s affidavit indicating
that she received the Notice two days after the five day period, (2) the corroborating evidence of
a date-received stamped Notice with a handwritten notation from claimant’s attorney, and (3) the
claimant’s counsel’s representation that her mail clerk was carefully trained in use of the date
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stamp. Id. at 1356-57, 1363. The Pettway court noted that the claimant’s affidavit alone would
never suffice to rebut the presumption, but where it was corroborated with the date stamped
Notice, the handwritten note and the counsel’s attestation to the fact his assistant was trained in
mail processing, the presumption was rebutted. (Id. at 1357, 1362-63). In the present case,
however, there is nothing in the record indicating that Plaintiff received the Notice after April
24, 2014.
Accordingly, the Court finds that Plaintiff has failed to make a “reasonable showing” that
he did not receive the Notice within five days of its being mailed. Therefore, Plaintiff is deemed
to have received the Notice on or before April 24, 2014, and his Complaint was due on June 23,
2014. Plaintiff’s complaint was therefore untimely filed on June 26, 2014.
IV. CONCLUSION
For all these reasons, the Court GRANTS Defendant’s Objections (ECF No. 13);
REJECTS the Magistrate Judge’s Report and Recommendation (ECF No. 11); and GRANTS
Defendant’s Motion to Dismiss (ECF No. 5).
IT IS SO ORDERED.
s/Paul D. Borman
PAUL D. BORMAN
UNITED STATES DISTRICT JUDGE
Dated: September 25, 2015
CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing order was served upon each attorney or
party of record herein by electronic means or first class U.S. mail on September 25, 2015.
s/Deborah Tofil
Case Manager
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