United States District Court, E.D. Virginia, Norfolk Division
L. Wright Allen, United States District Judge
Jestine Delores Gregory ("Plaintiff) brings this action
under 42 U.S.C. § 405(g) seeking judicial review of the
final decision of the Social Security Commissioner ("the
Commissioner") to deny her claim for disability
insurance benefits ("DIB") under the Social
Security Act. Pursuant to 28 U.S.C. §§ 636(b)(1)(B)
and (C), Federal Rule of Civil Procedure 72(b), and the Local
Rules, this matter was referred to a United States Magistrate
Judge for a Report and Recommendation ("R&R").
ECF No. 10.
R&R filed on March 26, 2018, the Magistrate Judge
concluded that Plaintiff had failed to timely file her
Complaint and that equitable tolling of the timeliness
requirement was not warranted. ECF No. 13 at 3-4.
Accordingly, the Magistrate Judge recommended granting the
Commissioner's Motion to Dismiss pursuant to Federal Rule
of Civil Procedure 12(b)(1) (ECF No. 7) and dismissing the
case with prejudice. Id. at 9.
of the Report, each party was advised of the right to file
written objections to the findings and recommendations made
by the Magistrate Judge. Id. The Court has received
Plaintiffs timely objection to the Magistrate Judge's
R&R (ECF No. 14), as well as the Commissioner's
response to Plaintiffs objection (ECF No. 16).
to Federal Rule of Civil Procedure 72(b)(3), the Court
reviews de novo any part of a magistrate judge's
recommendation to which a party has properly objected.
See also Wimmer v. Cook, 114 F.2d 68, 73 (4th Cir.
1985) ("[A]ny individual findings of fact or
recommendations for disposition by [the magistrate judge], if
objected to, are subject to final de novo
determination ... by a district judge ....").
reviewing a decision made in accordance with the Social
Security Act must determine whether the factual findings are
supported by substantial evidence and were reached through
application of the correct legal standard. Craig v.
Chafer, 76 F.3d 585, 589 (4th Cir. 1996). Accordingly,
if the Commissioner's denial of benefits is supported by
substantial evidence and was reached by applying the correct
legal standard, the Court must affirm the Commissioner's
final decision. Hays v. Sullivan, 907 F.2d 1453,
1456 (4th Cir. 1990).
evidence" is "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion; [i]t consists of more than a mere scintilla of
evidence but may be somewhat less than a preponderance."
Craig, 76 F.3d at 589 (citations omitted). In
reviewing for substantial evidence, this Court does not
reweigh conflicting evidence, make credibility
determinations, or substitute its judgment for that of the
Commissioner. Id. The Commissioner's findings as
to any fact, if supported by substantial evidence, are
conclusive and must be affirmed. Richardson v.
Perales, 402 U.S. 389, 390 (1971).
recounted in the R&R, Ms. Gregory filed an application
for DIB on July 10, 2014. ECF No. 13 at 1. Ms. Gregory's
application was denied on May 18, 2015; again upon
reconsideration on July 13, 2015; and by the Administrative
Law Judge ("ALJ") on May 3, 2017. Id. at
the filing of Ms. Gregory's Complaint, the Commissioner
moved to dismiss the Complaint for lack of jurisdiction. The
Commissioner contended that because Ms. Gregory had failed to
file her Complaint within the sixty-day period after
receiving the notice to file a civil action seeking court
review, the Court lacked jurisdiction over the case pursuant
to Federal Rule of Civil Procedure 12(b)(1). See ECF
Nos. 7, 8; see also ECF No. 13 at 2-3.
reviewed above, the Magistrate Judge's R&R
recommended that the Commissioner's Motion to Dismiss be
granted because Ms. Gregory filed her Complaint after the
sixty-day window pursuant to 41 U.S.C. § 405(g) had
expired. The Magistrate Judge also noted that Ms. Gregory had
failed to submit evidence rebutting the five-day presumptive
period-that is, the period after the date on the notice,
during which it is presumed that the applicant has received
the notice. ECF No. 13 at 4-6.
Magistrate Judge also found that Ms. Gregory had failed to
demonstrate that she had pursued her rights diligently and
that some extraordinary circumstance presented an obstacle to
her pursuit of her rights. The Magistrate Judge concluded
that equitable tolling was not warranted. Id. at 7-9
(citing Pace v. DiGuglielmo, 544 U.S. 408, 418
Gregory filed her objection to the R&R on April 6, 2018.
ECF No. 14. The Commissioner filed a response ...