UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ANTHONY SIMPKINS, No. 15-12731

Plaintiff, District Judge Sean F. Cox

v. Magistrate Judge R. Steven Whalen

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

 /

REPORT AND RECOMMENDATION

This is a Social Security Disability appeal brought under 42 U.S.C. § 405(g). Before

the Court is Defendant Commissioner’s Motion to Dismiss [Doc. #12], based on Plaintiff’s

failure to commence this action within 60 days of the final decision of the Commissioner of

Social Security. The motion has been referred for a Report and Recommendation pursuant

to 28 U.S.C. § 636(b)(1)(B). For the reasons discussed below, I recommend that the motion

be DENIED, and that the Defendant be ordered to file an answer to Plaintiff’s complaint.

I. FACTS

Plaintiff Anthony Simpkins filed his pro se Complaint on July 27, 2015, challenging

a final decision of Defendant denying his claim for disability benefits under Title II of the

Social Security Act. The administrative history of this case is set forth in the declaration of

Patrick J. Herbst, Chief ofCourt Case Preparation and Review, Branch 3, Office of Disability

-1-

2:15-cv-12731-SFC-RSW Doc # 15 Filed 04/10/16 Pg 1 of 7 Pg ID 90
Adjudication and Review, Social Security Administration. Docket #12-1. On February 20,

2014, an Administrative Law Judge issued a decision denying Mr. Simpkins’ claim for

benefits. Herbst Declaration, ¶ 3(a). On May 19, 2015, the Appeals Council sent Mr.

Simpkins a notice of its decision denying review, and advising him of his right to commence

a civil action within 60 days of receipt. Id. Mr. Simpkins filed a complaint in this Court on

July 27, 2015. 

 II. LEGAL PRINCIPLES

42 U.S.C. §405(g) provides that:

“Any individual, after any final decision of the Commissioner of Social

Security 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.” (Emphasis added).

Section 405(g) is generally considered the sole avenue for judicial review under the Act. 

42 U.S.C. §405(h); Heckler v. Ringer, 466 U.S. 602, 617, 104 S.Ct. 2013, 80 L.Ed.2d

622 (1984). Therefore, a plaintiff must file his or her complaint within the 60-day period

set forth in the statute.

Together, 20 C.F.R. §§ 404.901 and 422.210(c) provide that the date of mailing,

from which the 60 days starts to run, is five days from the date of the notice, which is the

presumptive date that a claimant receives the Appeal Council’s notice. 

The 60-day limit set forth in 42 U.S.C. §405(g) is not jurisdictional, but is a period of

limitations subject to equitable tolling in an appropriate case. Bowen v. City of New York,

-2-

2:15-cv-12731-SFC-RSW Doc # 15 Filed 04/10/16 Pg 2 of 7 Pg ID 91
476 U.S. 467, 478, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). However, “in the context of §

405(g), the ‘[p]laintiff bears the burden of establishing the exceptional circumstances that

warrant equitable tolling.’ “ Jackson v. Astrue, 506 F.3d 1349, 1353 (11th Cir.2007)(quoting

Davila v. Barnhart, 225 F.Supp.2d 337, 339 (S.D.N.Y.2002)). See also Graham Humphreys

v. Memphis Brooks Museum of Art, Inc., 209 F.3d 552, 561 (6th Cir.2000) (“federal courts

sparingly bestow equitable tolling”). In determining whether to grant equitable tolling, the

Court considers 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. Comm’r of Soc. Sec., 480 F.3d 432, 437 (6 Cir. 2007). th

III. DISCUSSION

The Appeals Council mailed its Notice of Action to Mr. Simpkins on May 19, 2015. 

Adding the five days for mailing, the 60-day period to file for judicial review expired on July

24, 2016. Thus, it is clear that Mr. Simpkins filed his complaint three days past the statutory 1

deadline, and his complaint must be dismissed unless he can show entitlement to equitable

tolling. Applying the five Cook factors, I find that he is entitled to equitable tolling.

Plaintiff, now represented by counsel, makes two arguments in favor of denying

Defendant concedes that because the fifth day after the May 19, 2015 mailing was 1

a Sunday, Plaintiff would be entitled to 66 days. Defendant’s Brief at 6, fn 1. 

-3-

2:15-cv-12731-SFC-RSW Doc # 15 Filed 04/10/16 Pg 3 of 7 Pg ID 92
Defendant’s motion. He contends that (1) the Complaint was timely filed, and alternatively,

(2) the 60-day deadline should be equitably tolled. Response, 2-3, Docket #13. Plaintiff’s

claim that he did not actually receive notice of the Appeals Council action until May 27,

2015 and thus, the July 27, 2015 was timely filed is without merit. The May 19, 2015

Appeals Council notice states that the 60-day period to file a civil actions starts “the day after

you receive this letter.” Docket #12-3 at 2. However, the notice goes on to state that “We

assume you received this letter 5 days after the date on it [May 19, 2015] unless you show

us that you did not receive it within the 5-day period.” Id. The record contains no indication

that Plaintiff asked for an extension of time or otherwise attempted to show that he received

notice of the Appeals Council action later than the presumptive five-day mailing period. 

In support of his argument for equitable tolling, Mr. Simpkins states that he received

the Appeals Council notice on May 27, 2015. Affidavit of Anthony Simpkins at ¶ 2, Docket

#13-1. Mr. Simpkins’wife states that her husband did not receive the Appeals Council

notice until May 27, 2015. Affidavit of Amy Simpkins at ¶ 2, Docket #13-2. Mr. Simpkins

states further that after receiving notice, he spoke to his attorney, who informed him that (1)

he would not be representing Mr. Simpkins in appealing the administrative decision, and, (2)

Mr. Simpkins had 60 days from receipt of the Appeals Council notice to file a civil action. 

Id. at ¶ 3. Mr. Simpkins notes that in the days following the conversation with his attorney,

he attempted to procure another attorney but ended up preparing the pro se Complaint and

mailing it on July 25, 2016. Id. at ¶ 4. 

-4-

2:15-cv-12731-SFC-RSW Doc # 15 Filed 04/10/16 Pg 4 of 7 Pg ID 93
The May 19, 2015 notice clearly states that Mr. Simpkins was required to show that

he received it later than May 24, 2015 if requesting additional time to file a complaint. 

Docket #12-3 at 2. He did not do so. Under the first Cook factor, he concedes that he had

both actual and constructive notice of the filing requirement. Under most circumstances, his

failure to follow the notice’s instructions regarding the 60-day deadline (regardless of his pro

se status or the actual date of receipt) would support a denial of equitable tolling. However,

Plaintiffstates that he relied on his former counsel’s instructions to file the Complaint within

60 days of receipt. Under the fifth Cook factor, his reliance on his former attorney to inform

him of the proper filing deadline is not unreasonable. 

The remaining factors also support equitable tolling. Despite the late filing, Mr.

Simpkins has been diligent in pursuing his rights. While the Complaint was filed late as a

matter of law, Mr. Simpkins filed only three days after the 65-day deadline. A substantive

decision in this case will be based on the administrative record, and there will be no

discovery. Defendant concedes that she will not be prejudiced by the tardy filing. 

I am disinclined to deny Plaintiff a full review of the case simply because he filed the

Complaint three days late based on his former counsel’s advice. 

IV. CONCLUSION

For these reasons, I recommend that Defendant’s Motion to Dismiss [Doc. #12] be

DENIED, and that the Defendant be ordered to answer Plaintiff’s Complaint.

-5-

2:15-cv-12731-SFC-RSW Doc # 15 Filed 04/10/16 Pg 5 of 7 Pg ID 94
Any objections to this Report and Recommendation must be filed within 14 days of

service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D. Mich. LR

72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of

appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v.

Secretary of HHS, 932 F.2d 505 (6 Cir. 1991); United States v. Walters, 638 F.2d 947 (6 th th

Cir. 1981). Filing of objections which raise some issues but fail to raise others with

specificity will not preserve all the objections a party might have to this Report and

Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6 Cir. 1991); Smith v. th

Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6 Cir. 1987). Pursuant to E.D. th

Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge.

Within 14 days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be not more than 20 pages in

length unless by motion and order such page limit is extended by the court. The response

shall address specifically, and in the same order raised, each issue contained within the

objections. 

s/R. Steven Whalen 

R. STEVEN WHALEN

UNITED STATES MAGISTRATE JUDGE

Date: April 10, 2016

-6-

2:15-cv-12731-SFC-RSW Doc # 15 Filed 04/10/16 Pg 6 of 7 Pg ID 95
CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was sent to parties of record on

April 10, 2016, electronically and/or by U.S. mail.

s/Carolyn M. Ciesla 

Case Manager to the 

Honorable R. Steven Whalen

-7-

2:15-cv-12731-SFC-RSW Doc # 15 Filed 04/10/16 Pg 7 of 7 Pg ID 96