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Gregory v. Berryhill

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

May 14, 2018

JESTINE DELORES GREGORY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.

          FINAL ORDER

          Arenda L. Wright Allen, United States District Judge

         Plaintiff 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.

         In the 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.

         By copy 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).

         I. LEGAL STANDARD

         Pursuant 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 ....").

         A court 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).

         "Substantial 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).

         II. BACKGROUND

         As 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 1-2.

         Following 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.

         As 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.

         The 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 (2005)).

         Ms. Gregory filed her objection to the R&R on April 6, 2018. ECF No. 14. The Commissioner filed a response ...


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