Young v. Commissioner of Social Security
Filing
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Memorandum Opinion and Order declining to adopt the Report and Recommendation of the MagistrateJudge (Docket # 19 ). Defendants Motion to Dismiss Plaintiffs Untimely Complaint, or in theAlternative, Motion for Summary Judgment (Docket # 13 ) is hereby DENIED.This matter is returned to the Magistrate Judge so that it may proceed on the merits. Judge Donald C. Nugent (C,KA)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
EMMANUEL YOUNG,
Plaintiff,
v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
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CASE NO. 1:10 CV 2900
JUDGE DONALD C. NUGENT
Magistrate Judge James R. Knepp II
MEMORANDUM OPINION
AND ORDER
This matter is before the Court on the Report and Recommendation of Magistrate Judge
James R. Knepp II (Docket # 19), recommending that the Motion to Dismiss filed by Defendant,
Commissioner of Social Security, be granted and this case dismissed. The Commissioner asserts
that Plaintiff is barred from filing this action based on the 60-day statute of limitations period set
forth in 42 U.S.C. § 405(g). Plaintiff argues that equitable tolling applies and that the Motion to
Dismiss filed by the Commissioner should be denied.
Procedural Background
On March 4, 2009, the Administrative Law Judge denied Plaintiff’s application for
Disability Insurance Benefits and Supplemental Security Income. Plaintiff requested that the
Appeals Council review the ALJ’s decision. On October 15, 2010, the Appeals Council denied
Plaintiff’s request for review of the ALJ’s decision, making the ALJ’s decision the final decision
of the Commissioner. Plaintiff’s Counsel received the final decision of the Commissioner on
October 20, 2010. Plaintiff filed his Complaint in this Court on December 22, 2010, seeking
judicial review of the ALJ’s decision denying Plaintiff benefits. Plaintiff’s Complaint was filed
two days beyond the 60-day statute of limitations.
On April 7, 2011, the Commissioner filed a Motion to Dismiss the Complaint as untimely
or, in the alternative, for Motion for Summary Judgment. (Docket #13.) On May 7, 2011,
Plaintiff filed his Opposition Brief. (Docket #14.) On August 8, 2011, Counsel for Plaintiff sent
a letter to the Appeals Council, requesting a two-day extension of the 60-day statute of
limitations, explaining conditions in her law practice which caused her to miss the filing deadline
by two days.
On August 18, 2011, the Magistrate Judge issued his Report and Recommendation.
(Docket #19.) Citing Pace v. Dguglielmo, 544 U.S. 408, 418 (2005), the Magistrate Judge
recommends that Plaintiff’s Complaint be dismissed based on the fact that Plaintiff has failed to
offer any “extraordinary circumstances” which prevented him from filing his Complaint within
the limitations period.
On September 2, 2011, Plaintiff filed Objections to the Magistrate’s Report and
Recommendation. (Docket #20.) Plaintiff asserts that equitable tolling is appropriate not only
upon demonstrating extraordinary circumstances, but also when a plaintiff demonstrates that
tolling is consistent with Congressional intent and where the facts establish that tolling is
appropriate. Bowen v. New York, 476 U.S. 467, 480 (1986) and Cook v. Commissioner of Social
Security, 480 F.3d 432 (2007). Plaintiff asserts that the circumstances in this case support
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equitable tolling of the statute of limitations, given that he has diligently pursued his claim and
tolling the statute of limitations would result in very little prejudice to the Commissioner.
Standard of Review for a Magistrate Judge’s Report and Recommendation
The applicable district court standard of review for a magistrate judge’s report and
recommendation depends upon whether objections were made to the report. When objections
are made to a report and recommendation of a magistrate judge, the district court reviews the
case de novo. FED. R. CIV. P. 72(b) provides:
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.
The standard of review for a magistrate judge’s report and recommendation is
distinct from the standard of review for the Commissioner of Social Security’s decision
regarding benefits. Judicial review of the Commissioner’s decision, as reflected in the
decisions of the ALJ, is limited to whether the decision is supported by substantial
evidence. See Smith v. Secretary of Health and Human Servs., 893 F.2d 106, 108 (6th
Cir. 1989). “Substantial evidence exists when a reasonable mind could accept the
evidence as adequate to support the challenged conclusion, even if that evidence could
support a decision the other way.” Casey v. Secretary of Health and Human Servs., 987
F.2d 1230, 1233 (6th Cir. 1993) (citation omitted).
Discussion
This Court has reviewed the Magistrate Judge’s Report and Recommendation de novo
and has considered all of the pleadings, transcripts, and filings of the parties, as well as the
Objections to the Report and Recommendation filed by Plaintiff. After careful evaluation of the
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record, this Court declines to adopt the recommendation of the Magistrate Judge.
The 60-day time limit in Section 405(g) is not jurisdictional, but a period of limitations
which, consistent with congressional purpose, may be tolled when equity so requires. Bowen,
476 U.S. 467, 474. The Bowen Court noted circumstances such as illness, accident, destruction
of records, mistake, or a claimant’s misunderstanding of the appeals process as circumstances
under which the statute of limitations may be equitably tolled. Id. at Note 12. The Sixth Circuit
uses a five-factor analysis in determining whether equitable tolling is appropriate, analyzing the
following: “(1) the petitioner’s lack of [actual] notice of the filing requirement; (2) the
petitioner’s lack of constructive knowledge of the filing requirement; (3) diligence in pursuing
one’s rights; (4) absence of prejudice to the respondent; and (5) the petitioner’s reasonableness
in remaining ignorant of the legal requirement for fling his claim.” See Cook v. Comm’r of Soc.
Sec., 480 F.3d 432, 437 (6th Cir. 2007).
Plaintiff’s Complaint was filed in this Court two days beyond the 60-day period
established by 42 U.S.C. § 405(g). The Court’s review of this case reveals Plaintiff’s diligence
in pursuing his rights thus far. Plaintiff has requested the Appeals Council grant him a two-day
extension of the 60-day statute of limitations period, explaining circumstances in the law office
of Plaintiff’s Counsel which resulted in the late filing. The Court has no indication that the
Appeals Counsel has responded to Plaintiff’s request. While the circumstances may not be
extraordinary, given the resulting prejudice to Plaintiff if the case is dismissed; the fact that
Counsel’s error appears to be innocent; and, the fact that the Commissioner will not be
prejudiced by the tolling of the state of limitations, equitable tolling is appropriate. Accordingly,
the Court declines to adopt the recommendation of the Magistrate Judge.
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Conclusion
The Court hereby declines to adopt the Report and Recommendation of the Magistrate
Judge (Docket #19). Defendant’s Motion to Dismiss Plaintiff’s Untimely Complaint, or in the
Alternative, Motion for Summary Judgment (Docket #13) is hereby DENIED.
This matter is returned to the Magistrate Judge so that it may proceed on the merits.
IT IS SO ORDERED.
s/Donald C. Nugent
DONALD C. NUGENT
United States District Judge
DATED: September 13, 2011
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