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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BENJAMIN THOMAS, III, No. 09-13397

Plaintiff, District Judge Lawrence P. Zatkoff

v. Magistrate Judge R. Steven Whalen

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

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REPORT AND RECOMMENDATION

On August 27, 2009, Plaintiff Benjamin Thomas, III filed a complaint seeking

judicial review of Defendant Commissioner of Social Security’s decision denying him

disability insurance benefits under Title II of the Social Security Act. Before the Court is

Defendant’s Motion to Dismiss [Docket #8], which 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 Defendant’s motion be GRANTED, and that the complaint be

DISMISSED.

I. BACKGROUND

Defendant seeks dismissal on the ground that the Plaintiff filed his complaint after

the 60-day statute of limitations set forth in 42 U.S.C. § 405(g). Attached to the

Defendant’s motion is the affidavit of Earnest Baskerville, Chief of Court Case

Preparation and Review Branch 3, Office of Disability Adjudication and Review, Social
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Security Administration. Mr. Baskerville recounts the administrative history of this case

as follows. On September 14, 2007, an Administrative Law Judge (“ALJ”) issued a

decision denying Plaintiff’s claim for Social Security Disability benefits. Plaintiff sought

review from the Appeals Council, which denied review, mailing Plaintiff a copy of its

notice of action on June 19, 2009. The notice informed Plaintiff of his right to commence

a civil action within sixty days from the date of receipt. Plaintiff filed his civil complaint

in this Court on August 27, 2009, which was beyond the 60-day period.

Mr. Baskerville also states in his Declaration:

“At the time of signing this Declaration, the undersigned is not aware of any

request for an extension of time to file a civil action as specified in said

notice and in section 205(g) of the Social Security Act, as amended (42

U.S.C. 405(g)) and in section 422.210 of Social Security Administration

regulations No. 22 (20 CFR 422.210).”

On December 22, 2009, this Court ordered Plaintiff “to show cause in writing, on

or before January 15, 2010, why this Court should not recommend dismissal of his case.”

[Order to Show Cause, Docket #9]. To date, Plaintiff has not responded to the show

cause order.

II. DISCUSSION

42 U.S.C. § 405(g) provides that a claimant may obtain judicial review of an

adverse decision by the Commissioner “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.” See also 20 C.F.R. 422.210(c). Section

405(h) provides that § 205(g) is the exclusive jurisdictional basis for judicial review in
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cases arising under the Social Security Act.

Thus, claims such as the one brought by Plaintiff are subject to a 60-day statute of

limitations, which runs from the date the plaintiff receives notice of the Appeals

Council’s decision. The date of receipt is presumed to be five days after the date of the

Appeals Council’s notice. See 20 C.F.R. §§ 404.901 and 422.10(c); Cook v.

Commissioner of Social Security, 480 F.3d 432, 436-37 (6th Cir. 2007). In this case, the

presumed date of receipt would be June 24, 2009, and Plaintiff had 60 days from that

date, or August 23, 2009, to file his complaint in district court. Instead, he filed it four

days late, on August 27, 2009. Although § 405(g) permits the Commissioner to extend the

60-day limitation period, there is no indication in this record that Plaintiff sought an

extension.

The 60-day statute of limitations of Social Security appeals is not jurisdictional,

and may be subject to equitable tolling. Bowen v. City of New York, 476 U.S. 467, 480,

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 GrahamHumphreys 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
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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, 480 F.3d at 437.

In this case, the Appeals Council’s notice clearly informed Plaintiff of the 60-day

requirement for filing. Plaintiff did not ask the Commissioner for an extension before

filing his complaint, and has not asked this Court to toll the time. Indeed, Plaintiff has not

seen fit to respond to this Court’s order to show cause and has not offered any reason why

he could not have filed his complaint timely. Plaintiff has therefore not been diligent in

pursuing his rights. In terms of prejudice to the Commissioner, the court in Cook stated:

“Although allowing Cook to file his complaint one day late likely would

create little prejudice to the Commissioner in this particular case, we are

mindful of the fact that there are millions of applicants for Social Security

benefits each year, and that the lack of a clear filing deadline could create

havoc in the system.” 480 F.3d at 437.

The Plaintiff filed his complaint beyond the 60-day statute of limitations set forth

in § 405(g), and has not met his burden of showing compelling reasons to equitably toll

the time for filing. His complaint should therefore be dismissed.

III. CONCLUSION

For these reasons, I recommend that Defendant’s Motion to Dismiss [Docket #8]

be GRANTED, and that the complaint be DISMISSED WITH PREJUDICE.

Any objections to this Report and Recommendation must be filed within fourteen

(14) days of service of a copy hereof, including weekends and intervening holidays, as
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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 (6th Cir. 1991); United States v. Walters, 638 F.2d 947 (6th 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 (6th Cir. 1991); Smith v. Detroit Fed’n of

Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR

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

Within fourteen (14) days of service of any objecting party’s timely filed

objections, including weekends and intervening holidays, the opposing party may file a

response. The response shall be not more than twenty (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

Dated: April 8, 2010
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CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing order was served on the attorneys

and/or parties of record by electronic means or U.S. Mail on April 8, 2010.

s/Susan Jefferson 

Case Manager