UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

PENNY SUE STOUT, 

Plaintiff, 

 Civil Action 2:18-cv-00485 

 Chief Judge Edmund A. Sargus, Jr. 

v. Magistrate Judge Chelsey M. Vascura 

 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

REPORT AND RECOMMENDATION 

 Plaintiff, Penny Sue Stout (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for 

review of the final decision of the Commissioner of Social Security (“Commissioner”), in which 

the Commissioner found that Plaintiff was not disabled and, therefore, not entitled to disability 

insurance benefits under the Social Security Act, 42 U.S.C. §§ 416(i), 423. This matter is before 

the United States Magistrate Judge for a report and recommendation on Defendant’s Motion to 

Dismiss Complaint, or Alternatively, Motion for Summary Judgment (ECF No. 11) and 

Plaintiff’s Response to Defendant’s Motion to Dismiss (ECF No. 14). For the reasons that 

follow, the undersigned RECOMMENDS that Defendant’s Motion be DENIED. 

I. BACKGROUND 

On August 3, 2016, an Administrative Law Judge (“ALJ”) issued a decision denying 

Plaintiff’s claim. (Notice of Decision—Unfavorable, ECF No. 11-1, PAGEID #56–75.) On 

October 24, 2017, the Appeals Council denied Plaintiff’s request for review, rendering the ALJ’s 

decision the final and appealable decision of the Commissioner. (Notice of Appeals Council 

Action, ECF No. 11-1, PAGEID #76–82.) 
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Plaintiff, through counsel, submitted her request for an extension to file an appeal on 

December 20, 2017, stating that counsel had been unable to reach Ms. Stout to discuss the 

possibility of an appeal. (Compl. ¶ 5, ECF No. 3; Request for Extension of Time, ECF No. 11-1, 

PAGEID #84–86.) On March 26, 2018, Plaintiff followed up on that request. (Fax Cover Sheet, 

ECF No. 11-1, PAGEID #83.) On April 26, 2018, Plaintiff, through counsel, submitted a motion 

to amend request for extension to file. (Compl. ¶ 5, ECF No. 3; Motion to Amend, ECF No. 11-

1, PAGEID #87–88.) The amendment stated that the previous grounds for the extension had 

been given in error; in fact, contact had been established with Ms. Stout and she wished to 

pursue an appeal, but she required additional time to collect the necessary funds to pay the 

district court’s filing fee. (Id.) 

On May 16, 2018, Plaintiff filed the instant action with this Court. (ECF No. 1.) On 

June 5, 2018, the Appeals Council denied Plaintiff’s request for more time to file an appeal. 

(Letter from David E. Clark, ECF No. 11-1, PAGEID #89–90.) 

On August 16, 2018, the Commissioner filed a Motion to Dismiss Complaint, or 

Alternatively, Motion for Summary Judgment, in which she argues first that Plaintiff’s 

Complaint should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) as timebarred. The Commissioner further argues that Plaintiff is not entitled to equitable tolling because 

she has not shown extraordinary circumstances that would merit tolling that statute of 

limitations. In the alternative, the Commissioner argues that, in the event the Court determines it 

must convert her 12(b)(6) motion into a motion for summary judgment under Federal Rules of 

Civil Procedure 12(d) and 56, she is entitled to judgment as a matter of law. On September 6, 

2018, Plaintiff filed her Response to Defendant’s Motion to Dismiss, in which she asserts that 

she is entitled to equitable tolling under the United States Court of Appeals for the Sixth 
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Circuit’s five-part balancing test. The Commissioner did not file a reply. 

II. STANDARD OF REVIEW 

A. Standard of review for dismissal under Rule 12(b)(6) 

Under Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon 

which relief can be granted.” Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss 

under Rule 12(b)(6), the Court must “accept non-conclusory allegations of fact in the complaint 

as true and determine if the plaintiff has stated a plausible clam for relief.” Orton v. Johnny’s 

Lunch Franchise, LLC, 668 F.3d 843, 846 (6th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 

678-79 (2009)). “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state 

a claim to relief that is plausible on its face.’ A claim has facial plausibility when the plaintiff 

pleads factual content that allows the court to draw the reasonable inference that the defendant is 

liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 

550 U.S. 544, 556, 570 (2007)). 

B. The Court need not convert the Commissioner’s motion to dismiss to a motion 

for summary judgment. 

As an initial matter, the Undersigned finds that, with the exception of the Appeals 

Council’s June 5, 2018 denial of Plaintiff’s request for an extension of time, all documents 

submitted as exhibits by the Commissioner in support of summary judgment were directly 

referenced in Plaintiff’s Complaint. (ECF No. 3, ¶¶ 3–5.) And as the June 5, 2018 denial of 

extension was not yet in existence at the time Plaintiff commenced this action on May 16, 2018, 

it cannot bear on whether her Complaint was timely and is therefore irrelevant. Accordingly, 

there is no need to convert the Commissioner’s motion to dismiss under Rule 12(b)(6) to a 

motion for summary judgment under Rules 12(d) and 56. Commercial Money Ctr., Inc. v. Ill. 

Union Ins. Co., 508 F.3d 327, 335–36 (6th Cir. 2007) (“[W]hen a document is referred to in the 
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pleadings and is integral to the claims, it may be considered without converting a motion to 

dismiss into one for summary judgment”). Therefore, the Undersigned considers the 

Commissioner’s motion for summary judgment under the same standard as the motion to 

dismiss. 

III. DISCUSSION 

 Plaintiff’s Complaint was due on or before December 29, 2017. Section 405(g) of the 

Social Security Act provides that “any individual . . . 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). The implementing regulations consistently provide, “[a]ny civil action . . . must be 

instituted within 60 days after the Appeals Council’s notice of denial of request for review of the 

administrative law judge’s decision . . . is received by the individual . . . except that this time 

may be extended by the Appeals Council upon a showing of good cause.” 20 C.F.R. § 

422.210(c). A claimant is presumed to have received the notice of the Appeals Council’s denial 

of request for review five days after the date of the notice, unless the claimant can make a 

reasonable showing otherwise. Id. Applying these rules here, Plaintiff is presumed to have 

received the October 24, 2017 letter by October 29, 2017. Thus, Plaintiff had to file her 

Complaint on or before December 29, 2017, in order to comply with the limitations period of 

Section 405(g). Plaintiff did not file until May 16, 2018. 

 The undersigned finds, however, that Plaintiff has demonstrated that she is entitled to 

equitable tolling of the deadline for filing her Complaint. “Section 405(g) of the Social Security 

Act authorizes the Commissioner to toll the 60-day limitations period under appropriate 

circumstances.” Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 437 (6th Cir. 2007). In Hykes v. 

Lew, the Sixth Circuit instructed that a court should consider the following factors when 
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determining whether equitable tolling is appropriate: 

(1) lack of notice of the filing requirement; (2) lack of constructive knowledge of 

the filing requirement; (3) the plaintiff's diligence in pursuing his rights; (4) lack of 

prejudice to the defendant; and (5) whether the plaintiff’s ignorance was 

reasonable. 

Hykes v. Lew, No. 16-5509, 2017 WL 4863108, at *2 (6th Cir. Mar. 1, 2017) (citing Dixon v. 

Gonzales, 481 F.3d 324, 331 (6th Cir. 2007)). These five factors are not exclusive, and the 

decision of whether a plaintiff is entitled to equitable tolling “should be made on a case-by-casebasis.” Dixon v. Gonzales, 481 F.3d 324, 331 (6th Cir. 2007) (citing Armini v. Oberlin College, 

259 F.3d 493, 500 (6th Cir. 2001)). 

Here, the first, second, and fourth factors weigh against Plaintiff. Plaintiff had notice 

(and therefore constructive knowledge) of the filing requirement, as stipulated in her statement of 

facts. (Pl.’s Resp. 1–2, ECF No. 14.) Although the Commissioner has not alleged any prejudice, 

as courts in this district have previous held, “there are millions of applicants for Social Security 

benefits each year, and the lack of a clear filing deadline could create havoc in the system.” 

Ridner v. Comm’r of Soc. Sec., No. 1:11-CV-434, 2012 WL 1156430, at *4 (S.D. Ohio Apr. 6, 

2012) (quoting Cook, 480 F.3d at 437). Thus, Plaintiff’s five-month delay in filing could 

prejudice the Commissioner. 

Other considerations, however, persuade the undersigned that equitable tolling is 

appropriate in the instant case. Specifically, Plaintiff diligently pursued her rights by timely 

filing a request for an extension of time to file a civil appeal on December 20, 2017, following up 

on that request on March 26, 2018, and amending that request on April 26, 2018. When, as here, 

a plaintiff’s good faith effort to seek a timely extension is supported by the record, equitable 

tolling is appropriate. See Baker v. Comm’r of Soc. Sec. No. 10-13748, 2011 WL 1598632, at 

*3–4 (E.D. Mich. Apr. 28, 2011). In addition, the Appeals Council failed to notify Plaintiff that 
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her request for an extension of time was denied prior to her filing the Complaint. Instead, the 

Appeals Council waited more than five months after the expiration of the deadline for Plaintiff to 

file her Complaint to deny her requested extension. Such a delay from the Appeals Council 

likewise weighs in favor of equitable tolling. See Dixon v. Gonzales, 481 F.3d 324, 311 (6th Cir. 

2007) (finding that delay in prompt response from agency is sufficient grounds for equitable 

tolling). Moreover, it was reasonable for Plaintiff to expect that the Appeals Council would 

grant her request. See Baker, 2011 WL 1598632, at *4 (“[R]equests for extensions are routinely 

entertained by the Appeals Council”); see also Sanchez v. Barnhart, No. 03-C-537-C, 2004 WL 

1005589, at *2 (W.D. Wis. May 4, 2004) (“This court takes judicial notice of the fact that the 

Appeals Council grants extensions routinely and that it sometimes takes several months for it to 

respond to a claimant’s request for an extension.”). 

Accordingly, the undersigned finds that Plaintiff is entitled to equitable tolling and that, 

therefore, her Complaint was timely filed. 

IV. DISPOSITION 

For the foregoing reasons, it is RECOMMENDED that Defendant’s Motion to Dismiss 

Plaintiff’s Complaint, or Alternatively, Motion for Summary Judgment (ECF No. 11) be 

DENIED. 

V. PROCEDURE ON OBJECTIONS 

If any party objects to this Report and Recommendation, that party may, within fourteen 

(14) days of the date of this Report, file and serve on all parties written objections to those 

specific proposed findings or recommendations to which objection is made, together with 

supporting authority for the objection(s). A Judge of this Court shall make a de novo 

determination of those portions of the Report or specified proposed findings or recommendations 

to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or 
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modify, in whole or in part, the findings or recommendations made herein, may receive further 

evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 

636(b)(1). 

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the District Judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

/s/ Chelsey M. Vascura 

CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE