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Parker v. Colvin

United States District Court, E.D. Virginia, Norfolk Division

February 15, 2017


          OPINION & ORDER

          Henry Coke Morgan, Jr., Senior United Slates District Judge

         This matter is before the Court on Plaintiff Richard Parker's ("Plaintiff) Objections to the Report and Recommendation ("R&R") of the Magistrate Judge, Doc. 17, and on Defendant Carolyn W. Colvin's ("Defendant") Motion to Dismiss for Lack of Jurisdiction, Doc. 4. For the reasons below, the Court OVERRULES Plaintiffs objections to the R&R and ADOPTS the R&R, Doc. 16, in its entirety. The Court GRANTS Defendant's Motion to Dismiss for Lack of Jurisdiction, Doc. 4, and this case is DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         Plaintiff does not object to the recitation of the procedural and factual background of this case contained in the R&R, which sets forth, inter alia, the following facts. See Doc. 17 at 1. On August 19, 2011, Plaintiff filed an application for disability insurance benefits ("DIB") with the Social Security Administration ("SSA"). R&R at 2. On December 14, 2011, Plaintiffs application was denied. Id. On April 25, 2012, Plaintiff filed a request for a hearing before an Administrative Law Judge ("ALJ"). Id. On April 17, 2013, the ALJ denied Plaintiffs application. Id. On April 30, 2013, Plaintiff appealed the ALJ's decision to the Appeals Council for the Office of Disability Adjudication and Review ("Appeals Council"). R. 182.[1] On May 10, 2014, the Appeals Council notified Plaintiff that it remanded Plaintiffs case to the ALJ. R.117-20. On July 16, 2014, the ALJ conducted a rehearing of Plaintiff s case. R. 14. On August 27, 2014, the ALJ again found that Plaintiff was not entitled to DIB. R. 11-24. On September 8, 2014, Plaintiff again appealed the ALJ's decision to the Appeals Council. R. 10. On September 30, 2015, the Appeals Council issued a Notice of Appeals Council Action ("Notice") denying Plaintiffs appeal. R. 1-5.

         The Notice, dated September 30, 2015, was addressed to Plaintiff and "copied" to his counsel. R. 1, 3. The Appeals Council mailed the Notice to Plaintiff and his counsel. Pl.'s Aff. ¶¶ 2-3; Carr Aff. ¶ 2. Plaintiffs home address is Norfolk, Virginia (23502), R. 1, and his counsel's work address is Norfolk, Virginia (23510), R. 3. The Notice informed Plaintiff of the Appeals Council's denial of his appeal and the sixty-day time period for filing a civil action. R. 2-3. The Notice specified, "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." R. 2. Furthermore, the Notice advised Plaintiff that he could file a written request for an extension of time to file a civil case. R. 3.[2] Plaintiff has not alleged that he or his attorney sent such a request. See Doc. 5 at 5; Pl.'s Aff. ¶¶ 2-3. Five (5) days after September 30, 2015 was October 5, 2015. Sixty (60) days after October 5, 2015 was December 4, 2015. Plaintiff filed the Complaint in this Court on December 7, 2015. Doc. 1.

         On March 8, 2016, Defendant filed a Motion to Dismiss for Lack of Jurisdiction alleging that this Court lacks subject matter jurisdiction over Plaintiffs untimely Complaint. Doc. 4 at 1. Plaintiff opposed the Motion to Dismiss, claiming that he has made a "reasonable showing" that his receipt of the Notice extended the time for filing this action or, in the alternative, that equitable tolling should apply. Doc. 11 at 3, 5-6.

         On July 26, 2016, the Magistrate Judge entered his R&R RECOMMENDING that the Court GRANT the Motion to Dismiss. Doc. 16. Plaintiff filed his objections to the R&R on August 4, 2016, Doc. 17, Defendant responded on August 12, 2016, Doc. 18, and this matter is now ripe for the Court's consideration.


         A. Review of the R&R

         The Court reviews de novo any part of a Magistrate Judge's R&R to which a party has properly objected. Fed.R.Civ.P. 72(b)(3). The Court may "accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Id. As to the unchallenged portions of the R&R, the Court "must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Ace. Ins. Co.. 416 F.3d 310, 315 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note). The R&R has no presumptive weight, and the Court remains responsible for making a final determination. See Mathews v. Weber. 423 U.S. 261, 269 (1976).

         Objections to an R&R must be "specific and particularized" to "train[ ] the attention of both the district court and the court of appeals upon only those issues that remain in dispute after the magistrate judge has made findings and recommendations." United States v. Midgette, 478 F.3d 616, 621 (4th Cir. 2007). If a party makes an argument in his pleadings but does not object to the R&R on those grounds, the party has waived his right to appeal that issue. See Id. at 622. ("[T]o preserve for appeal an issue in a magistrate judge's report, a party must object to the finding or recommendation on that issue with sufficient specificity so as reasonably to alert the district court of the true ground for the objection.").

         B. Time for Filing a Civil Action

         Under Section 405(g) of Title 42 of the United States Code,

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). The Commissioner has authority to "make rules and regulations" based on this statute. § 405(a). The corresponding regulation dictates that a civil action must be filed "within 60 days after the Appeals Council's notice of denial of request for review... or notice of the decision by the Appeals Council 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). Without such an extension, "[e]ven one day's delay in filing the action is fatal." Davidson v. Sec, of HEW, 53 F.R.D. 270, 271 (N.D. Okl. 1971).

         Receipt of an Appeals Council denial notice is presumed five (5) days after the date of the decision. 20 C.F.R. § 422.210(c); Cook v. Comm'r of Soc. Sec,480 F.3d 432, 436 (6th Cir. 2007) (holding that "the 60-day period begins five days after ...

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