Simkins v. Social Security, Commissioner of

Filing 19

ORDER ACCEPTING AND ADOPTING Magistrate Judge's 15 Report and Recommendation Report and Recommendation DENYING 12 Motion to Dismiss filed by Social Security, Commissioner of. Signed by District Judge Sean F. Cox. (KJac)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

Anthony Simpkins,
Plaintiff,
v.

Case No. 15-12731
Honorable Sean F. Cox
Magistrate Judge R. Steven Whalen

Commissioner of Social Security,
Defendant.
______________________________/
ORDER ACCEPTING AND ADOPTING
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
On July 27, 2015, Plaintiff filed a pro se complaint1 seeking judicial review of the
Commissioner of Social Security’s determination that he is not entitled to disability benefits for
his physical impairments under 42 U.S.C. § 405(g). (Doc. #1).
On February 23, 2016, Defendant filed a motion to dismiss on the basis that Plaintiff’s
complaint was not filed within the 60-day period set out in 42 U.S.C. § 405(G). (Doc. #12).
Plaintiff responded to the motion on March 11, 2016. (Doc. #13). Defendant replied on March
24, 2016. (Doc. #14). All proceedings in this case were referred to Magistrate Judge R. Steven
Whalen pursuant to 28 U.S.C. §§ 636(b)(1)(A), (b)(1)(B), and (b)(1)(C). (Doc. #2).
On April 10, 2016, Magistrate Judge Whalen issued a Report & Recommendation
(“R&R”), wherein he recommended that the Court DENY Defendant’s motion, and

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Plaintiff’s application to proceed in forma pauperis was granted by Magistrate Judge
Whalen. (Doc. #7).
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recommended that Defendant be ordered to file an answer to Plaintiff’s complaint. (Doc. #15,
R&R). Defendant filed timely objections to the April 10, 2016 R&R on April 25, 2016. (Doc.
#16, Def.’s Objs.). Plaintiff filed a Response to Defendant’s objections on May 9, 2016. (Doc.
#18, Pl.’s Resp.).
The Court finds Defendant’s objections to be improper or without merit. The Court shall
therefore ADOPT the R&R, DENY Defendant’s Motion to Dismiss, and ORDER Defendant to
file an Answer to Plaintiff’s Complaint.
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 72(b), a party objecting to the recommended
disposition of a matter by a Magistrate Judge must file objections to the R&R within fourteen
(14) days after being served with a copy of the R&R. Fed. R. Civ. P. 72(b)(2). Objections must
“(A) specify the part of the order, proposed findings, recommendations, or report to which a
person objects; and (B) state the basis for the objection.” E.D. Mich. LR 72.1(d). Objections are
not “a second opportunity to present the argument already considered by the Magistrate Judge.”
Betancourt v. Ace Ins. Co. of Puerto Rico, 313 F. Supp. 2d 32, 34 (D.P.R. 2004). Moreover, the
district court should not consider arguments that have not first been presented to the magistrate
judge. See Stonecrest Partners, LLC v. Bank of Hampton Roads, 770 F. Supp. 2d 778, 785
(E.D.N.C. 2011). “The district judge must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or return the matter to the magistrate
judge with instructions.” Fed. R. Civ. P. 72(b)(3).

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ANALYSIS
In her motion, Defendant sought to have the Court dismiss Plaintiff’s complaint on the
basis that it was untimely. According to Defendant, Plaintiff’s complaint had to be filed no later
than July 24, 2015.2 Defendant pointed out that the complaint–filed on July 27, 2015–was three
days late. Defendant also argued that Plaintiff was not entitled to equitable tolling. (Def.’s Br.
at 6-7).
Plaintiff countered by arguing that his complaint was timely filed, or alternatively, that
the 60-day deadline should be equitably tolled. (Pl.’s Resp.).3 Plaintiff first maintained that he
did not actually receive the notice until May 27, 2015, making his July 27, 2015 complaint
timely. Plaintiff alternatively argued that his circumstances justified equitable tolling of the 60day deadline. Among the arguments advanced by Plaintiff was the claim that Plaintiff reasonably
relied on his former attorney’s advice that he had 60 days from the date of receipt (May 27,
2015) to file a complaint.
Magistrate Judge Whalen recommended that the Court deny Defendant’s motion to
dismiss and order Defendant to file an Answer to Plaintiff’s complaint. (R&R at 1). In so doing,
the Magistrate Judge rejected Plaintiff’s timeliness argument, but still found that the
circumstances warranted equitable tolling. Id. at 4-5. After concluding that equitable tolling
was warranted, Magistrate Judge Whalen stated that he was “disinclined to deny Plaintiff a full

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Defendant maintained that the decision to deny benefits became final on May 19, 2015,
when the Appeals Council issued its Notice to Plaintiff. (Def.’s Br. at 6). The date of receipt is
presumed to be five days after the date on the notice, unless Plaintiff makes a reasonable
showing to the contrary. Id. at 5 (citing 20 C.F.R. §§ 405(g), (h)).
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Plaintiff secured legal representation by the time Defendant filed her motion to dismiss.
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review of the case simply because he filed the Complaint three days late based on his former
counsel’s advise.” Id. at 5.
Defendant has lodged three objections to the April 10, 2016 R&R, all of which pertain to
the Magistrate Judge’s equitable tolling determination. As explained below, the Court finds
Defendant’s objections to be improper or without merit. Moreover, the Court agrees with the
Magistrate Judge’s determinations as to the challenged issues.
I.

Objection 1
In her first objection, Defendant argues that lack of prejudice to the Commissioner cannot

serve as a basis for applying equitable tolling. (Def.’s Objs. at 2). Defendant appears to advance
two separate arguments.
First, Defendant argues that “a lack of prejudice to the Commissioner is a factor that
cannot be considered in determining whether to apply equitable tolling, pursuant to the Court’s
analysis in Cook.” Id. at 4. This is an improper objection because it raises a new argument not
presented to the Magistrate Judge.4 Notably, this argument is contradicted by Defendant’s own
motion to dismiss, wherein she outlined the five factors “courts must consider” when deciding
whether to apply equitable tolling. See Def.’s Br. at 7 (citing Cook v. Comm’r of Soc. Sec., 480
F.3d 432, 437 (6th Cir. 2007)) (“In considering whether to apply equitable tolling, courts must
consider the following factors: (1) Plaintiff’s lack of actual notice of the filing requirements; (2)
Plaintiff’s lack of constructive knowledge of the filing requirement; (3) Plaintiff’s diligence in

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The Court notes that Defendant’s reply brief in support of her motion to dismiss states
summarily that prejudice cannot serve as a basis for equitable tolling. However, neither the
motion to dismiss nor the reply brief present the specific argument that is now raised in
Defendant’s objection.
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pursuing his rights; (4) prejudice to the Defendant; and (5) Plaintiff’s reasonableness in
remaining ignorant of the legal requirement for filing his claim.”). Moreover, even if
Defendant’s objection was proper, the Court rejects Defendant’s interpretation of Cook.
Defendant does not cite a single Sixth Circuit case to support such an interpretation. See Def.’s
Objs. at n. 4.
Second, Defendant argues that “even if a lack of prejudice to the Commissioner may be a
consideration under Cook, it cannot serve as an independent basis for equitable tolling.” (Def.’s
Objs. at 4). The problem with Defendant’s argument here is that it disregards the Magistrate
Judge’s application of all five factors outlined in Cook. Lack of prejudice to Defendant was
only one factor weighing in favor of equitable tolling. The Magistrate Judge also found that
Plaintiff was diligently pursuing his rights and that Plaintiff’s ignorance as to the legal
requirement for filing his claim was reasonable. (R&R at 5).
For the reasons outlined above, Defendant’s first objection is overruled.
II.

Objection 2
In her second objection, Defendant disputes the determination that Plaintiff was diligent

in pursuing his rights. (Def.’s Objs. at 4). Defendant argues that Magistrate Judge Whalen
provides no explanation for such a finding. Id. at 5. Defendant’s argument overlooks the
Magistrate Judge’s acknowledgment of the circumstances leading up to the filing of Plaintiff’s
pro se complaint. (R&R at 4).
Magistrate Judge Whalen specifically noted that: (1) Plaintiff was advised by his former
attorney that he would not represent Plaintiff in his appeal; (2) that Plaintiff’s former attorney
also advised Plaintiff that he had 60 days from receipt of the notice to file a civil action; (3) that

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Plaintiff attempted to procure another attorney to represent him in his appeal; and (4) that when
Plaintiff’s attempts proved to be unsuccessful, Plaintiff prepared the complaint himself and
mailed it on July 25, 2015. Id. These actions support the Magistrate Judge’s determination that
Plaintiff was reasonably diligent in pursuing his case.
Moreover, Defendant’s reference to Moore v. Comm’r of Soc. Sec., 2013 WL 3467027,
*3 (E.D. Mich. July 10, 2013), does not call into question the Magistrate’s finding. Moore is
factually distinct from the instant case. In Moore, the plaintiff filed her complaint five days past
the statutory deadline. Moore, 2013 WL 3467027, at *3. The court determined that equitable
tolling was not warranted under the circumstances because: (1) the plaintiff was aware that her
complaint may not have been timely filed at the time she filed it; (2) the facts did not establish
that the plaintiff was diligently pursuing her rights5; and (3) the plaintiff could not have been
reasonable in remaining ignorant of the filing deadline because the plaintiff admitted that her
complaint may have been untimely.
Here, unlike in Moore, Plaintiff’s complaint does not concede that it is untimely filed.
Also unlike Moore, Plaintiff was diligent in pursuing this case – as is evidenced by his multiple
attempts to secure legal representation and the eventual filing of the pro se complaint. And
finally, Magistrate Judge Whalen found Plaintiff’s ignorance as to the filing deadline reasonable
because Plaintiff relied on the advice of his former attorney.

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In determining that the plaintiff’s pro se complaint could have been filed before the due
date, the court noted that the complaint and response to the motion to dismiss were typed, well
written, and appeared to be in a standard legal format, and that the plaintiff was “clearly on
notice” that she could have requested an extension if more time to file was needed. Moore, 2013
WL 3467027, at *3. Unlike the plaintiff in Moore, here, Plaintiff’s pro se complaint does not
appear to be in a standard legal format (it consists of a single paragraph), and it is not well
written (it contains grammatical errors).
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Defendant also cites James v. United States Postal Service, 835 F.2d 1265, 1267 (8th Cir.
1998), for the proposition that Plaintiff’s unsuccessful attempts to obtain legal representation do
not justify equitable tolling. (Def.’s Objs. at 5). As a threshold matter, the Court notes that this
case is not binding, and Defendant has not cited a Sixth Circuit case that supports her stated
position. Moreover, James is factually distinct from the present case. Notably, the court in
James did not employ the Cook factors when deciding whether equitable tolling was warranted.
See James, 835 F.2d at 1267. The decision in James did not involve the 60-day deadline that is
at issue here. Id. at 1266. Further, the plaintiff in James did not reasonably rely on the advice of
an attorney. And finally, the plaintiff in James filed his complaint more than two weeks past the
filing deadline. Id.
Defendant’s argument fails for another reason: it presumes that the Magistrate Judge
based his equitable tolling determination solely on Plaintiff’s attempts to secure legal
representation. While this fact, on its own, may not be sufficient for purposes of equitable
tolling, it was one of three other factors that weighed in Plaintiff’s favor.6 (R&R at 5).
For the foregoing reasons, Defendant’s second objection is overruled.
III.

Objection 3
In her third objection, Defendant argues that the Magistrate Judge’s analysis of the fifth

Cook factor is “internally inconsistent.” (Def.’s Objs. at 6).
The Court has reviewed the R&R and finds that Magistrate Judge Whalen’s analysis is
not “internally inconsistent.” For this reason, Defendant’s third objection is overruled.

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Magistrate Judge Whalen determined that the first two Cook factors (actual and
constructive notice) weighed in Defendant’s favor and determined that the last three Cook
factors weighed in Plaintiff’s favor.
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ORDER
For the reasons set forth above, IT IS ORDERED that the Court ACCEPTS AND
ADOPTS the April 10, 2016 R&R. IT IS THEREFORE ORDERED that Defendant’s Motion
to Dismiss is DENIED. IT IS FURTHER ORDERED that Defendant is to file an Answer to
Plaintiff’s Complaint.
IT IS SO ORDERED.

S/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: June 23, 2016
I hereby certify that a copy of the foregoing document was served upon counsel of record on
June 23, 2016, by electronic and/or ordinary mail.
S/Jennifer McCoy
Case Manager

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