Case Name in Social Security Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
MARY R.,
Plaintiff, 	Case No. 1:25-cv-687
Judge Susan J. Dlott
v. 	Magistrate Judge Kimberly A. Jolson
COMMISSIONER OF
SOCIAL SECURITY.,
Defendant.
REPORT AND RECOMMENDATION
This matter is before the Court on the Commissioner’s Motion to Dismiss, or Alternatively,
Motion for Summary Judgment (Doc. 11). 	For the following reasons, the Undersigned
RECOMMENDS treating the Motion as one for summary judgment. The Undersigned further
RECOMMENDS that the Motion be GRANTED and that this case be DISMISSED with
prejudice.
I. 	BACKGROUND
On August 19, 2020, an Administrative Law Judge (“ALJ”) issued a decision partially
denying Plaintiff’s application for disability insurance benefits. 	(See Doc. 11-1 at 10–24).
Relevant here, the ALJ noted that Plaintiff initially alleged disability beginning on May 5, 2015,
before amending her alleged disability onset to January 1, 2017. (Id. at 10). The ALJ ultimately
found that Plaintiff was not disabled before August 28, 2018, but that she became disabled on that
date and continued to be disabled through the date of the decision, August 19, 2020. (Id. at 24).
Along with providing her the decision, the Social Security Administration (“SSA”) notified
Plaintiff that she could appeal the ALJ’s findings to the Appeals Council within sixty days. (Id. at
5–7 (dated August 19, 2020)).
Case: 1:25-cv-00687-SJD-KAJ Doc #: 17 Filed: 01/21/26 Page: 1 of 9 PAGEID #: <pageID>

2
Plaintiff filed an appeal with the Appeals Council on February 23, 2025—about four and a
half years later. 	(Id. at 36). 	On June 5, the Appeals Council dismissed her request for review
because her appeal was untimely. (Id. at 37). The Appeals Council also found that she did not
show good cause for missing the deadline. 	(Id. (cataloging Plaintiff’s good cause arguments)).
The SSA informed Plaintiff that if she wished to seek judicial review of the ALJ’s decision in
federal court, she must do so within sixty days. (Id. at 34 (dated June 5, 2025)).
On September 19—over two months beyond her newest deadline—Plaintiff filed the
present case. 	(Doc. 1). 	As best the Undersigned can tell, Plaintiff seeks judicial review of the
ALJ’s finding that she was not disabled before August 2018. (Doc. 9). As Plaintiff tells it, she
should have been found disabled beginning in May 2015. (Id. at 3 (“I want the date of onset of
disability to be changed to May of 2015, and receive the pay increase (monthly) and the lump sum
for missed work consistent with the date of May 2015); Doc. 11-1 at 24).
Now, the Commissioner moves to dismiss Plaintiff’s complaint as untimely. 	(Doc. 11).
Plaintiff concedes that she submitted the complaint after the deadline, but she argues that
extenuating circumstances justify the delay. 	(Doc. 12 at 2). 	Defendant offered no reply. 	The
matter is ripe for consideration.
II. 	STANDARD
Before turning to the substance of the Commissioner’s Motion, the Undersigned must
decide what standard applies. The Commissioner filed the Motion to Dismiss under Rule 12(b)(6),
but alternatively moved for summary judgment under Rule 56. (Doc. 11 at 3–5).
Federal Rule of Civil Procedure 12 provides that “[i]f, on a motion under Rule 12(b)(6) or
12(c), matters outside the pleadings are presented to and not excluded by the court, the motion
must be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). In doing so,
the parties must have a “reasonable opportunity to present all the material that is pertinent to the
Case: 1:25-cv-00687-SJD-KAJ Doc #: 17 Filed: 01/21/26 Page: 2 of 9 PAGEID #: <pageID>

3
motion.” Id. Therefore, a court is usually required to notify the party opposing a motion before
converting it into a summary judgment motion. Stringer v. Nat’l Football League, 474 F. Supp.
2d 894, 903 (S.D. Ohio 2007) (citing Ball v. Union Carbide Corp., 385 F.3d 713, 719 (6th
Cir.2004)). But “where, as here, a motion for summary judgment has been filed in the alternative
and the opposing party responds to that motion by submitting materials outside the pleadings,” a
district court need not provide prior notice because “there is no surprise or prejudice that would
prevent the Court from converting the Rule 12 motion to a Rule 56 motion for summary judgment.”
Id.; see also Handley v. Gen. Sec. Servs. Corp., No. 1:07-CV-501, 2008 WL 11450752, at *2 (S.D.
Ohio Oct. 2, 2008) (“In these circumstances, where there is no surprise or prejudice to the parties,
the Court sua sponte will convert the dismissal motion to one for summary judgment.”); Foster
Wheeler Env’t Corp. v. Fluor Fernald, Inc., No. 1:07-CV-033, 2007 WL 2713780, at *2 n. 1 (S.D.
Ohio Sept. 14, 2007); Ball, 385 F.3d, at 719 (holding the plaintiffs “had notice that the district
court might treat the motion as one for summary judgment because such a motion was actually
filed, and they responded to it.”).
Here, Defendants made the alternative ask and submitted matters outside of the pleadings.
(Doc. 11 at 4 (“Alternatively, the Defendant Commissioner Is Entitled to Judgment as a Matter of
Law Pursuant to Fed. R. Civ. P. 56(c)”); Doc. 11-1)). 	Plaintiff responded to the Motion and
likewise included matters outside of the pleadings. (Doc. 12 at 2–4 (claiming for the first time that
she filed late because of her constant pain and her inability to find an attorney to represent her.
Plaintiff also includes a letter from her doctor endorsing these arguments: “I have read the patient’s
statement and agree with the assessment.”)). 	Thus, the Undersigned does not need to provide
Plaintiff with additional notice of its intent to convert the Motion to Dismiss into a Motion for
Summary Judgment. “[S]uch a motion was actually filed, and [Plaintiff] responded to it.” Ball,
Case: 1:25-cv-00687-SJD-KAJ Doc #: 17 Filed: 01/21/26 Page: 3 of 9 PAGEID #: <pageID>

4
385 F.3d, at 719. And, as shown below, the Undersigned considers the materials. Accordingly,
the Undersigned RECOMMENDS treating the Commissioner’s Motion as one for Summary
Judgment under Rule 56.
Under Rule 56(a), a party is entitled to judgment as a matter of law, when there is no
genuine issue of material fact. 	Fed R. Civ. P. 56(a). 	The burden is on the moving party to
demonstrate with sufficient evidence that no such “genuine issue” exists. 	Hodar v. Comm’r of
Soc. Sec., No. 1:15CV72-JRA, 2015 WL 5657288, at *1 (N.D. Ohio Sept. 24, 2015) (quoting
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). After making that showing, the burden shifts
to the nonmoving party to produce conflicting evidence that would create a “genuine issue.” Id.
(quoting Cox v. Kentucky Dep’t of Transp., 53 F.3d 146, 150 (6th Cir. 1995)). When determining
if there is a genuine issue of material fact, a court must view the evidence in the light most
favorable to the nonmoving party. 	Pachla v. Saunders Sys., Inc., 899 F.2d 496, 498 (6th Cir.
1990).
III. 	DISCUSSION
The Commissioner argues that this case should be dismissed because Plaintiff missed her
deadline to seek judicial review of the Appeals Council’s decision. 	(See generally Doc. 11).
Plaintiff concedes that her request for judicial review was untimely. (Doc. 12 at 2). Nevertheless,
she says the Court should consider her case because she continues to be disabled by pain and she
was unable to find an attorney to represent her within the limitations period. (See generally id.).
The Court construes and considers this as an equitable tolling argument.
A. 	Timeliness
To start, Plaintiff’s claim for judicial review is unquestionably late. 	Section 405 of the
Social Security Act gives plaintiffs 60 days “after any final decision of the Commissioner of Social
Security” to seek judicial review of that decision. 42 U.S.C. § 405(g). “Although § 405(g) uses
Case: 1:25-cv-00687-SJD-KAJ Doc #: 17 Filed: 01/21/26 Page: 4 of 9 PAGEID #: <pageID>

5
the word ‘mailing,’ the regulations clarify that the 60-day period begins five days after the date of
the denial notice.” Cook v. Comm’r of Soc. Sec., 480 F.3d 432, 436 (6th Cir. 2007). The 60-day
statute of limitations serves to “move millions of cases to speedy resolution in a bureaucracy that
processes millions of cases annually.” Bowen v. City of New York, 476 U.S. 467, 481 (1986); see
also Harris v. Com’r of Soc. Sec., 25 F. App’x 273, 273 (6th Cir. 2001) (affirming District Court
judgment that plaintiff’s complaint should be dismissed as untimely).
Plaintiff does not dispute that she filed her complaint more than 60 days after receiving the
Appeals Council notice: “I do not contest the fact that my request for judicial review of my
disability claim was submitted after the allowed time for filing.” 	(Doc. 12 at 2). 	Indeed, the
Appeals Council mailed its notice of dismissal on June 5, and included language that mimicked
the statute of limitations included in the Act. (Doc. 11-1 at 34, 37). Adding the five-day mailing
period, Plaintiff’s deadline to respond was August 11, 2025. (Doc. 11 at 5). Plaintiff did not seek
judicial review until September 16, clearly missing her deadline. (Doc. 9 at 1).
The relevant question now becomes: May the Court hear her claim anyway? 	For the
following reasons, the answer is no.
B. 	Equitable Tolling
Plaintiff claims that she filed late because her disability has made it nearly impossible to
prosecute her case, and because she was unable to find an attorney to represent her. 	(Id.).
Essentially, she seeks to have her case saved by the doctrine of equitable tolling. (See Doc. 12 at
2 (“I believe the reasons for late filing merit consideration.”)).
Where appropriate, equitable tolling applies to § 405(g)’s statute of limitations. Cook, 480
F.3d at 437 (citing Bowen, 476 U.S. at 480). Courts consider five factors in determining whether
to apply equitable tolling: (1) lack of actual notice of the filing requirement; (2) lack of constructive
notice of the filing requirement; (3) diligence in pursuing one's rights; (4) absence of prejudice to
Case: 1:25-cv-00687-SJD-KAJ Doc #: 17 Filed: 01/21/26 Page: 5 of 9 PAGEID #: <pageID>

6
defendant; and (5) reasonableness in remaining ignorant of the legal requirement for filing her
claim. Cook, 480 F.3d at 437 (citing Dunlap v. United States, 250 F.3d 1001, 1008 (6th Cir. 2001)
abrogated on other grounds by, Hall v. Warden, Lebanon Corr. Inst., 662 F.3d 745, 750 (6th Cir.
2011)). These factors, “however, are not exclusive; the decision of whether a plaintiff is entitled
to equitable tolling depends on the merits of the case.” Simmons v. Comm’r of Soc. Sec., No. 2:19-
CV-1629, 2020 WL 6390065, at *3 (S.D. Ohio Nov. 2, 2020) (citing Dixon v. Gonzalez, 481 F.3d
324, 331 (6th Cir. 2007)).
1. 	Actual and Constructive Notice
First, Plaintiff had both actual and constructive notice of her deadline. 	In her response,
Plaintiff acknowledges that her complaint was too late. 	(Doc. 12 at 2). 	Further, the Appeals
Council told Plaintiff she had 60 days from the day she received the letter to file a civil action, and
that—like the mailing period set out by the regulations—she was presumed to have read the letter
five days after the Council sent it. 	(Doc. 11-1 at 34); see also Cook, 480 F.3d, at 436 (“[T]he
regulations clarify that the 60-day period begins five days after the date of the denial notice.”).
This letter is enough to provide Plaintiff with actual and constructive notice of the deadline.
Minton v. Comm’r of Soc. Sec., No. 3:15-CV-366, 2016 WL 1752745, at *3 (S.D. Ohio May 3,
2016) (“Plaintiff had actual notice of the filing deadline by virtue of the May 21, 2015 letter sent
by the Appeals Council instructing him that he had ‘60 days to file a civil action (ask for court
review)’”), report and recommendation adopted, No. 3:15-CV-366, 2016 WL 2989068 (S.D. Ohio
May 24, 2016); see also Causley v. Saul, No. 2:19-CV-00229, 2021 WL 9628854, at *2 (W.D.
Mich. Jan. 19, 2021) (“In addition, a cursory review of the Appeals Council’s decision would
provide constructive knowledge as to when the deadline to file the lawsuit was.”).
Further, Plaintiff does not dispute that she had actual and constructive notice of the
deadlines. In fact, the Council instructed Plaintiff to notify the SSA if she did not receive the letter
Case: 1:25-cv-00687-SJD-KAJ Doc #: 17 Filed: 01/21/26 Page: 6 of 9 PAGEID #: <pageID>

7
within five days of sending, or if she could not meet the 60-day deadline. 	(Doc. 11-1 at 34).
Plaintiff did neither. 	Nor does her complaint include an allegation that she did not receive the
letter on time. (See generally Doc. 9).
The first factor therefore weighs against tolling.
2. 	Plaintiff’s Diligence
Second, the procedural history of this case shows Plaintiff’s repeated lack of diligence.
This is not the first time Plaintiff has missed a deadline. As mentioned, this claim arises out of an
ALJ’s decision from 2020. 	(Doc. 11-1 at 36). 	But Plaintiff did not appeal that decision until
February 2025. (Id.). The Appeals Council then dismissed her request as untimely. (Id.). Now,
Plaintiff again missed the deadline to seek judicial review, despite receiving notice of that deadline.
Even during the present case, Plaintiff has missed at least one deadline. 	(See Doc. 6 (ordering
Plaintiff to show cause for why she should not be required to pay the filing fee because she failed
to submit a revised motion to proceed in forma pauperis (“IFP”) by the deadline)). And these are
not near misses. Plaintiff appealed the ALJ’s decision over four years late (Doc. 11-1 at 36), she
sought judicial review over a month late (see Doc. 9 at 1), and she refiled her motion to proceed
IFP almost two weeks late. (Compare Doc. 5 (ordering Plaintiff to file her IFP motion by October
8, 2025), with Doc.7 (filed October 20, 2025)). Plaintiff also has not submitted any evidence of
her impediments or her efforts to meet these deadlines.
Although the Undersigned acknowledges that Plaintiff’s medical realities may make it
difficult to litigate, Plaintiff faces the same burden that nearly every pro se plaintiff encounters
when filing this type of claim. Here, where Plaintiff has demonstrated a pattern of filing late, the
Undersigned cannot conclude that she has demonstrated diligence in pursuing her rights.
Accordingly, this factor does not weigh in favor of tolling.
Case: 1:25-cv-00687-SJD-KAJ Doc #: 17 Filed: 01/21/26 Page: 7 of 9 PAGEID #: <pageID>

8
3. 	Prejudice to Defendant
Neither party argues that the Commissioner will face prejudice if the Court were to excuse
Plaintiff’s belated filing. 	But as courts in this district have explained, “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.” Cook, 480 F.3d at 437; 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).
Deviating from this clear rule would, as a general matter, prejudice the Commissioner’s ability to
litigate Social Security Appeals. The prejudice factor weighs against tolling.
4. 	Reasonableness
Regarding the last factor—Plaintiff’s reasonableness in remaining ignorant of the filing
deadline—Plaintiff was not ignorant of the deadline, as evidenced by her response where she
concedes that she knew her complaint was untimely. 	(Doc. 12 at 2); Moore v. Comm’r of Soc.
Sec., No. 12-CV-15646, 2013 WL 3467027, at *3 (E.D. Mich. July 10, 2013) (finding Plaintiff
was not ignorant of the deadline where she conceded in her complaint that she was not timely
filing her case). Thus, the final factor is inapplicable. Cf. Garrett v. Structured Cabling Sys., Inc.,
No. CIV. 10-55-DLB, 2010 WL 3862994, at *11 (E.D. Ky. Sept. 28, 2010) (“Plaintiff’s actual
knowledge of the filing deadline renders the fifth factor (a plaintiff’s reasonableness in remaining
ignorant of the notice, or legal requirement) inapplicable to her.”).
*****
In sum, none of the relevant factors support equitable tolling. 	Accordingly, Plaintiff’s
claim is time-barred, and as “there is no genuine dispute as to any material fact,” Defendant is
entitled to summary judgment. Fed. R. Civ. P. 56(a).
Case: 1:25-cv-00687-SJD-KAJ Doc #: 17 Filed: 01/21/26 Page: 8 of 9 PAGEID #: <pageID>

9
IV. 	CONCLUSION
For 	the 	foregoing 	reasons, 	the 	Undersigned 	RECOMMENDS 	treating 	the
Commissioner’s Motion to Dismiss as one for Summary Judgment. 	The Undersigned further
RECOMMENDS that the Motion (Doc. 11) be GRANTED and that the case be DISMISSED
with prejudice.
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 finding or recommendations to which objection is made, together with supporting
authority for the objection(s). A District Judge of this Court shall make a de novo determination
of those portions of the Report or specific proposed findings or recommendations to which
objection is made. 	Upon proper objection, a District Judge of this Court may accept, reject, or
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).
IT IS SO ORDERED.
Date: January 21, 2026 	/s/Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
Case: 1:25-cv-00687-SJD-KAJ Doc #: 17 Filed: 01/21/26 Page: 9 of 9 PAGEID #: <pageID>