Horton v. Commissioner of Social Security
Filing
13
OPINION AND ORDER by Judge S Arthur Spiegel REJECTING 10 Report and Recommendations, DENYING 6 Motion to Dismiss for Failure to State a Claim, APPOINTING James Roy Williams to represent Plaintiff, and GRANTING Plaintiff leave to re-file his appeal of the ALJ's decision with respect to his application for benefits out of time no later than 60 days after meeting with Mr. Williams and securing his services.Signed by Judge S Arthur Spiegel on 11/10/11. (lk)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DONALD HORTON,
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Plaintiff,
v.
Commissioner of Social
Security,
Defendant.
No. 1:11-CV-90
OPINION AND ORDER
This matter is before the Court on the Magistrate Judge’s
June 15, 2011 Report and Recommendation (doc. 10) and Plaintiff’s
Objections (doc. 12).
For the reasons indicated herein, the Court
REJECTS the Magistrate Judge’s Report and Recommendation, DENIES
Defendant’s
Motion
to
Dismiss
(doc.
6),
APPOINTS
James
Roy
Williams, Esq. as counsel for Plaintiff, and GRANTS Plaintiff leave
to file his application for benefits out of time, upon the advice
and with the assistance of his newly-appointed attorney.
I. Background
Plaintiff’s pro se complaint, filed on February 17, 2011,
is not easy to parse.
Through it, Plaintiff does clearly ask for
help in resolving an issue involving his social security number; he
alleges that someone else has been using his number and collecting
Social Security Insurance (“SSI”) benefits that rightly belong to
him since sometime either in the 1980s or in 1998, and he asks for
assistance in clearing up this confusion so he can collect the
benefits
himself
(doc.
3).
Beyond
that,
the
complaint
is
significantly less clear.
He claims that he applied in 2007 for
SVB benefits (Special Veterans Benefits), not SSI benefits, and was
told again that someone else was using his social security number.
He asks for someone to check into the social security records in
Maryland, where someone else is allegedly using his number, and for
someone to check with Senator Voinovich’s office. In an exhibit to
his complaint, Plaintiff alleges that the Administrative Law Judge
(“ALJ”) changed his application from “SSI to SS,” and that the ALJ
“abused his power.” He also appears to allege that the ALJ engaged
in a cover up of a hate crime, possibly the attack on Plaintiff’s
father that happened in the 1950s by the KKK.
Defendant has moved to dismiss Plaintiff’s complaint on
the basis that it was untimely filed (doc. 6).
In an exhibit to
the motion to dismiss, Defendant attached a declaration providing
more information about this case.
According to that declaration,
on June 19, 2006, Plaintiff applied for disability benefits for a
time of alleged disability between 1981 and 1986, which claim was
denied, denied again on appeal, and denied by the ALJ. The exhibit
also includes the decision of the ALJ.
The ALJ concluded that,
based on the medical record, Plaintiff was not under a disability
at any time from December 1, 1981, the alleged onset date, through
December 31, 1986, the date last insured.
Specifically, the ALJ
noted that Plaintiff’s lower back pain had merited only a 10%
disability rating from the Board of Veteran’s Appeals during the
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time period at issue, though that rating did increase in 1995, well
outside that time period.
He also noted that Plaintiff had
produced no evidence regarding any mental limitations and that the
first clear documentation of PTSD in the record occurred in 2008,
again well outside the applicable time frame of 1981-1986.
According to the record before the ALJ, Plaintiff’s claim for
service-related PTSD was denied in 2002, and no medical records
supported Plaintiff’s allegation that he was treated for PTSD in
the 1980s.
The ALJ found that Plaintiff was capable of performing
the work of a kitchen aide during the 1981-1986 time period and
that, in fact, Plaintiff did perform that work during that time
period. In short, the ALJ found no disability during the 1981-1986
time period.
Plaintiff appears to have asked the Appeals Council to
review the ALJ’s decision, which request was denied.
It is
uncontested that, on September 24, 2010, Defendant mailed to
Plaintiff a Notice of Appeals Council Action, in which Defendant
explained why the request was denied and notified Plaintiff that he
had 60 days from the receipt of the Notice in which to file a civil
action in federal court.
Plaintiff filed the instant action on
February 17, 2011, approximately two months outside the allowed 60
days. Defendant then moved to dismiss Plaintiff’s complaint on the
bases that it was untimely filed and that Plaintiff neither had
requested an extension of time from the Appeals Council nor
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presented any basis for the Court to extend the 60-day deadline.
Shortly after Defendant filed his motion to dismiss,
Plaintiff filed a motion for summary judgment, which the Magistrate
Judge rightly concluded was more properly a response to Defendant’s
motion to dismiss and not a true motion for summary judgment.
that
response,
which
is
as
difficult
to
comprehend
as
In
his
complaint, Plaintiff referenced his 1998 application for benefits,
which he claims he was not allowed to appeal because the records
showed that someone was claiming his benefits already (doc.
9).
He also noted that he contacted Secretary of State Clinton and
Senator Sherrod Brown about this problem in 2010 and about his
allegations that the ALJ engaged in “discriminatory practices when
he destroyed” Plaintiff’s 1998 records, which, again, Plaintiff
alleges was done to cover up a hate crime.
He also requested that
the matter be turned over to the Department of Justice.
In his
exhibits to his response, Plaintiff included copies of various
correspondence
between
him
and
the
U.S.
Senators
from
Ohio
regarding his application, his appeal, and his concerns about the
ALJ; he also included a copy of his birth certificate, which shows
a date of birth of July 15, 1951, rather than a 1949 birth date,
the
one
apparently
on
record
Administration for Plaintiff.
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with
the
Social
Security
II.
The Magistrate Judge’s Report and Recommendation & Plaintiff’s
Objections
The Magistrate Judge recommends that Defendant’s motion
to dismiss be granted because Plaintiff’s civil action in this
matter was filed outside the 60-day time limit.
neither
Plaintiff’s
response
to
Defendant’s
She noted that
motion
nor
the
documents he attached as exhibits demonstrates why Plaintiff failed
to timely file this civil action or speaks to why the deadline
should be equitably tolled.
Plaintiff’s objections to the Magistrate Judge’s Report
and Recommendation similarly do not address his failure to timely
file this action (doc. 12).
Instead, he claims that his civil
rights were violated and that, by virtue of the Americans with
Disabilities Act, the ALJ should have ensured that Plaintiff was
represented by counsel throughout the proceedings at issue.
He
further insists that the matter should now be turned over to the
President of the United States and to the Civil Rights Division of
the Department of Justice.
He again attaches as exhibits certain
correspondence from Ohio’s Senators, on which he has noted his
comments, many referencing the 1998 “cover up.”
III. Discussion
It is evident to the Court, merely by reading Plaintiff’s
filings in this case, that Plaintiff is incapable of effectively
representing himself in his pursuit of federal benefits.
His
filings clearly indicate that he does not understand the proper
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procedures for obtaining relief. For example, the complaint itself
is a plea for assistance with the problem of someone else claiming
his benefits; it presents no cogent position regarding the ALJ’s
decision that Plaintiff was not disabled between 1981 and 1986.
Similarly, his response to Defendant’s motion to dismiss and his
objections to the Magistrate Judge’s report indicate that he
believes that his avenue for relief lies with federal lawmakers or
the President rather than with the Court.
Based on his drafting,
it appears that Plaintiff suffers from, at minimum, learning
disabilities that dramatically affect his ability to communicate in
writing, and it seems as though he may also suffer from other
cognitive
disabilities
given
his
apparent
difficulties
in
prosecuting this matter and in coherently responding to the issues
presented by this case.
In short, Plaintiff plainly needs an
attorney to assist him in his pursuit of federal benefits.
The Court notes that Plaintiff was advised by the ALJ
that he should secure the services of an attorney and that the
proceedings before the ALJ were continued more than once to allow
Plaintiff time to do so.
The record does not show why Plaintiff
did not find an attorney, but it is clear to the Court that justice
requires that an attorney be found for Plaintiff.
Because
it
is
clear
that
Plaintiff’s
pro
se
representation was woefully ineffectual, the Court concludes that
equitable tolling of the 60-day deadline is appropriate in this
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case.
The deadline for obtaining review of Social Security
benefits decisions in the district court, 42 U.S.C. § 405(g), is
not jurisdictional and application of a “traditional equitable
tolling principle” to the 60-day requirement of § 405(g) is fully
“consistent with the overall congressional purpose” and is “nowhere
eschewed by Congress.”
Bowen v. City of New York, 476 U.S. 467,
478 and n.10, 480 (1986) (internal citations omitted).
determining
whether
equitable
tolling
should
apply
we
When
must
consider the following factors: “(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 filing his claim.”
Cook v.
Commissioner of Social Security, 480 F.3d 432, 437 (6th Cir.
2007). Equitable tolling generally “applies only when a litigant’s
failure to meet a legally-mandated deadline unavoidably arose from
circumstances beyond that litigant’s control.” Graham-Humphreys v.
Memphis Brooks Museum of Art, 209 F.3d 552, 560-61 (6th Cir. 2000).
Here, it appears to the Court that Plaintiff’s failure to meet
the 60-day deadline arose from cognitive and learning challenges
that are beyond his control. He evidently completely misapprehends
the role of the courts and the legislative branches with respect to
his federal benefits, which misapprehension has resulted in him not
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effectively representing himself throughout these proceedings.
Equity requires that he be given an opportunity to secure benefits
with the assistance of counsel.1
Consequently, the Court REJECTS the Magistrate Judge’s
Report and Recommendation (doc. 10) and DENIES Defendant’s Motion
to Dismiss (doc. 6).
The Court believes strongly that this
Plaintiff, a veteran, should be given every opportunity to pursue
an entitlement to benefits if warranted.
Therefore, this Court
appoints James Roy Williams, Esq., of Young, Revermen & Mazzei,
1014 Vine Street, Suite 2400, Cincinnati, Ohio 45202, (513) 7211200 to represent Plaintiff Donald Horton. Mr. Williams is charged
to take whatever measures are necessary to protect and assure
Plaintiff’s rights, assuming counsel concludes that Plaintiff’s
claim is meritorious.
We GRANT Plaintiff leave to re-file his
appeal of the ALJ’s decision with respect to his application for
benefits from 1981-1986 out of time, upon the advice and with the
1
This decision is not inconsistent with the Commissioner’s
regulations regarding extending the deadline for applicants when
applicants request the same from the agency. See, e.g., 20
C.F.R. §§ 404.911, 416.1411 (“(a) In determining whether you
have shown that you had good cause for missing a deadline to
request review we consider--(1) What circumstances kept you from
making the request on time...(3) Whether you did not understand
the requirements of the Act resulting from amendments to the Act,
other legislation, or court decisions; and (4) Whether you had
any physical, mental, educational, or linguistic limitations
(including any lack of facility with the English language) which
prevented you from filing a timely request or from understanding
or knowing about the need to file a timely request for review.”).
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assistance of his attorney, no later than 60 days after meeting
with Mr. Williams and securing his services.
SO ORDERED.
Dated: November 9, 2011
/s/ S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge
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