Keith v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MICHAEL AUTHOR KEITH,

Plaintiff,

v. Case No: 8:24-cv-1858-TPB-SPF

COMMISSIONER OF SOCIAL

SECURITY,

Defendant.

____________________________/

REPORT AND RECOMMENDATION

The Commissioner’s Motion to Dismiss or, in the Alternative, for Summary

Judgment (Doc. 7) is before the Court. The Commissioner asks the Court to dismiss

Plaintiff’s case because he did not file it by the deadline set by 42 U.S.C. § 405(g) and does

not demonstrate circumstances that justify equitable tolling of the deadline. Alternatively,

the Commissioner contends that summary judgment should be granted in the agency’s

favor on the same grounds. Pro se Plaintiff objects to the relief and contends that his federal

appeal was timely (Doc. 9).

I. Procedural Background

The Commissioner filed its motion on October 7, 2024 (Doc. 7). In a November

5, 2024 Order, the Court converted the Commissioner’s motion to one for summary

judgment (Doc. 8). The Court pointed out that the Commissioner, in support of his

motion, submitted the Declaration of Rosanna Mapp, Chief of Court Case Preparation

and Review of the local branch of social security appeals (Doc. 7-1). Because Mapp’s

Declaration was outside the pleadings, the Court gave the parties an additional 21 days to

respond with any documents or other materials pertinent to whether Plaintiff timely filed

his Complaint (Doc. 8).1 Plaintiff filed a handwritten response on November 18, 2024

(Doc. 9), attaching an agency form titled Request for Reconsideration dated one day

earlier. On the form, Plaintiff writes that the ALJ wrongly decided his case, his attorney

at the administrative level was incompetent, and Plaintiff needs an attorney’s help to

pursue his appeal (Doc. 9-1). Plaintiff also attached a printout of his “my Social Security”

account from the agency’s website and two medical records (Id.). The Commissioner

replied, standing by the agency’s argument that Plaintiff filed his federal court appeal out

of time (Doc. 13).

II. Summary Judgment Standard

Summary judgment is appropriate if all the pleadings, discovery, affidavits, and

disclosure materials on file show no genuine disputed issue of material fact, and the

movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a) and (c). The

existence of some factual disputes between the litigants will not defeat an otherwise

properly supported summary judgment motion; “the requirement is that there be no

genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986).

A fact is material if it is a legal element of the claim that may affect the outcome under the

substantive governing law. Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997).

1 The Court must treat a motion to dismiss as one for summary judgment and allow the

non-moving party a reasonable opportunity to present materials in opposition to the

motion if “matters outside the pleadings are presented to and not excluded by the court[.]”

Fed. R. Civ. P. 12(d).

A dispute about a material fact is “genuine” if a reasonable jury could find for the non-

moving party. Anderson, 477 U.S. at 248. In determining whether a genuine dispute of

material fact exists, the court views the evidence and all factual inferences drawn from the

evidence in the light most favorable to the non-moving party and resolves any reasonable

doubts in the nonmovant's favor. Skop v. City of Atlanta, 485 F.3d 1130, 1136 (11th Cir.

2007).

The nonmoving party, however, “must do more than simply show that there is

some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 586 (1986). The nonmovant must go beyond the pleadings and

“identify affirmative evidence” that creates a genuine dispute of material fact. Crawford-

El v. Britton, 523 U.S. 574, 600 (1998). “[M]ere conclusions and unsupported factual

allegations are legally insufficient to defeat a summary judgment motion.” Ellis v. England,

432 F.3d 1321, 1326 (11th Cir. 2005) (citing Bald Mtn. Park, Ltd. v. Oliver, 836 F.2d 1560,

1563 (11th Cir. 1989)). “A mere ‘scintilla’ of evidence supporting the opposing party’s

position will not suffice; there must be enough of a showing that the jury could reasonably

find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson,

477 U.S. at 252).

III. Discussion

A. Plaintiff’s Complaint Was Untimely

Title 42, Section 405(g) of the Social Security Act provides:

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.

42 U.S.C. § 405(g) (emphasis added). The Commissioner interprets “mailing” as the date

the claimant receives either the Appeals Council’s notice of denial of the claimant’s

request for review or the Appeals Council’s decision, and this date “shall be presumed to

be 5 days after the date of such notice, unless there is a reasonable showing to the

contrary.” 20 C.F.R. § 404.901 (“Date you receive notice means 5 days after the date on

the notice, unless you show us that you did not receive it within the 5-day period.”). A

complaint is timely if the plaintiff files it within 65 days of the date on the Commissioner’s

final notice of the agency’s adverse decision.

On April 17, 2023, the Administrative Law Judge (“ALJ”) issued an unfavorable

decision denying Plaintiff’s claim to child’s insurance benefits (Doc. 7-1, Ex. 1). Plaintiff

requested review of the ALJ’s opinion from the Appeals Council. On June 28, 2023, the

Appeals Council denied Plaintiff’s request and notified him of the 60-day deadline to file

a civil action (Id. at Ex. 2). The Appeals Council’s notice stated:

Time to File a Civil Action

• You have 60 days to file a civil action (ask for court review).

• The 60 days start the day after you receive this letter. We assume you

received this letter 5 days after the date on it unless you show us that

you did not receive it within the 5-day period.

• If you cannot file for court review within 60 days, you may ask the

Appeals Council to extend your time to file. You must have a good

reason for wanting more than 60 days to ask for court review. You

must make the request in writing and give your reason(s) in the request.

(Id.).

Mapp attests that the Appeals Council mailed this notice to Plaintiff the same day,

June 28, 2023, at 6011 Robert Road, Unit 208, Davenport, FL 33837-3752 (Doc. 7-1 at ¶

3(a)). Mapp also attests she “is not aware of any request for an extension of time to file a

civil action as specified in said notice[.]” (Id. at ¶ 3(b)). Under these facts, Plaintiff’s

complaint was untimely: it was due by September 1, 2023, but Plaintiff filed it on August

7, 2024, more than 11 months late. See Williams v. Comm’r of Soc. Sec., 664 F. App’x 763,

765 (11th Cir. 2016) (affirming dismissal of a complaint filed two days after its due date

as untimely).

B. Equitable Tolling Does Not Apply

The next issue is whether Plaintiff demonstrates extraordinary facts to warrant

equitable tolling. The 60-day requirement in § 405(g) “is not jurisdictional, but rather

constitutes a period of limitations.” Bowen v. City of New York, 476 U.S. 467, 478 (1986).

The Supreme Court has characterized § 405(g) as “‘unusually protective’ of claimants.”

Id. at 480 (quoting Heckler v. Day, 467 U.S. 104, 106 (1984)). To that end, Congress has

waived sovereign immunity in the Social Security Act (“SSA”) by giving federal courts

jurisdiction to review and modify or reverse the Commissioner’s decisions. Jackson v.

Astrue, 506 F.3d 1349, 1353 (11th Cir. 2007). The remedies outlined in the Social Security

Act – i.e., filing a federal civil action within 60 days – are the exclusive source of federal

court jurisdiction involving SSI.

Congress has explicitly authorized the Commissioner to toll the 60-day limit, see

42 U.S.C. § 405(g) (appeal due within 60 days unless the Commissioner extends the

deadline), and courts also find that traditional equitable tolling principles apply. Bowen,

476 U.S. at 480; Jackson v. Astrue, 506 F.3d 1349, 1354 (11th Cir. 2007). The law in the

Eleventh Circuit “clearly requires that ‘a finding of extraordinary circumstances’ is

necessary before a court may equitably toll the SSA’s statutory period, and this

determination ‘is reserved for extraordinary facts.’” Jackson, 506 F.3d at 1353-54 (quoting

Cabello v. Fernandez-Larios, 402 F.3d 1148, 1153 (11th Cir. 2005)). Equitable tolling is an

extraordinary remedy that courts apply sparingly. Wright v. Waste Pro USA, Inc., 69 F.4th

1332, 1337 (11th Cir. 2023).

The remedy “typically requires some kind of affirmative misconduct on the part of

the defendant – such as fraud, misinformation, or deliberate concealment[,]” and a

plaintiff bears the burden of establishing such exceptional circumstances. Bray v. Bank of

Am., N.A., 763 F. App’x 808, 810 (11th Cir. 2019) (citing Jackson, 506 F.3d at 1355). The

Eleventh Circuit has “rejected that a party’s pro se status, ignorance of the judicial process,

or delays in the proceedings warrant the application of equitable tolling.” Id. (citing

Wakefield v. R.R. Ret. Bd., 131 F.3d 967, 969-70 (11th Cir. 1997)). Similarly, a claimant’s

counsel’s negligence does not constitute an extraordinary circumstance sufficient to trigger

equitable tolling. Collier-Fluellen v. Comm’r of Soc. Sec., 408 F. App’x 330, 330 (11th Cir.

2011); Smith v. Astrue, 393 F. App’x 596 (11th Cir. 2010).

Here, it is undisputed that the “Notice of Appeals Council Action” attached to the

Commissioner’s summary judgment motion is dated June 28, 2023. No evidence rebuts

the presumption that Plaintiff received the Appeals Council’s June 28, 2023 notice 5 days

after of the decision.

Instead, Plaintiff submits a screenshot of his “my Social Security” portal on the

agency’s website, showing that he logged into his account on August 7, 2024, the same

day he filed his complaint and approximately 11 months after the deadline to file a federal

civil action. The printout states in three places that the agency denied Plaintiff’s appeal

on June 14, 2024 (rather than June 28, 2023, the date on the Appeals Council’s notice).

Under the heading “Your Benefit Applications,” the page reads, “We made a decision to

deny your appeal on June 14, 2024.” (Doc. 9-1 at 2) (emphasis in original). Describing

step two of the three-step review process, the statement appears again: “We conducted a

review of your appeal on June 14, 2024.” (Id.). Regarding step three, the agency states,

“We have made a decision to deny your appeal on June 14, 2024. We have sent a notice

to you with a detailed explanation of the decision. You should receive your notice within

10 to 15 days. If you disagree with the decision, you may request an appeal within 60

days of the date of your decision notice.” (Id.) (emphasis in original).

The Commissioner explains this discrepancy in the declaration of Brandy Weeks

(Doc. 13-1), a Social Insurance Specialist in the agency’s Atlanta Regional Office. Weeks

declares that “[t]he ALJ’s April 17, 2023 denial was not closed timely in SSA’s systems.”

(Id. at ¶ 5). Instead, “[t]he claim was left open erroneously while Mr. Keith’s request for

Appeals Council review was pending.” (Id. at ¶ 6). The agency closed Plaintiff’s case in

its system on June 14, 2024, which “caused the June 14, 2024 date appearing in Mr.

Keith’s ‘my Social Security’ account.” (Id. at ¶ 8). In other words, “[t]he June 14, 2024

date appearing in Mr. Keith’s ‘my Social Security’ account represents only the date of the

untimely Field Office action closing the claim in SSA’s systems[,]” and “[t]here is no

corresponding agency decision or notice for the June 14, 2024 date.” (Id. at ¶¶ 9-10).

To be sure, the Commissioner provided Plaintiff with incorrect information on the

very portion of the agency’s website devoted to giving claimants accurate, claim-specific

information. But the inaccurate information did not appear on the website until

approximately 9 months after the deadline to file a federal civil action. (Id. at ¶¶ 9-10). In

other words, the incorrect information had no bearing on Plaintiff’s failure to timely file a

federal appeal. Plaintiff’s printout merely demonstrates that sometime after June 14, 2024

– well after the September 2023 deadline for Plaintiff to file a federal action had come and

gone – Plaintiff logged into his “my Social Security” account, noticed that the Appeals

Council had denied his request for review, believed (perhaps reasonably) that this denial

occurred on June 14, 2024, and filed this case 54 days later on August 7, 2024 (see Doc. 9,

Doc. 9-1 at 2-3). On this record, Plaintiff has not demonstrated extraordinary facts to

warrant relief.

IV. Conclusion

The Court RECOMMENDS:

(1) The Commissioner’s Motion for Summary Judgment (Doc. 7) be GRANTED;

and

(2) The Clerk of Court enter judgment for Defendant and close the case.

IT IS SO REPORTED in Tampa, Florida, on March 28, 2025.

□□ Ae

SEAN P. FLYNN

UNITED STATES MAGISTRATE JUDGE

NOTICE TO PARTIES

Within fourteen days after being served with a copy of this Report and

Recommendation, any party may serve and file written objections to the proposed findings

and recommendations or request an extension of time to do so. 28 U.S.C. § 636(b)(1);

11th Cir. R. 3-1. Failure of any party to timely object in accordance with the provisions

of § 636(b)(1) waives that party’s right to challenge on appeal the district court’s order

based on the unobjected-to factual and legal conclusions contained in this Report and

Recommendation. 11th Cir. R. 3-1.