United States District Court, D. South Carolina, Florence Division
BRYAN HARWELL UNITED STATES DISTRICT JUDGE.
Clara Lewis Brockington, proceeding pro se, seeks judicial
review of a final (and favorable) decision of the
Commissioner of the Social Security Administration. The
Commissioner has filed a motion to dismiss, and the matter is
now before the Court for review of Plaintiff's objections
to the Report and Recommendation (“R & R”) of
United States Magistrate Judge Thomas E. Rogers, III, who
recommends granting the Commissioner's
motion. See ECF Nos. 24, 30, & 32.
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's recommendation has no presumptive
weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The Court must conduct a de novo review
of those portions of the R & R to which specific
objections are made, and it may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge
or recommit the matter with instructions. 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b).
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which objections have been
filed. Id. However, the Court need not conduct a de
novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate [Judge]'s proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of specific objections to the R & R, the Court reviews
only for clear error, Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the
Court need not give any explanation for adopting the
Magistrate Judge's recommendation. Camby v.
Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
January 2017, an administrative law judge
(“ALJ”) issued a fully favorable decision
granting Plaintiff's application for a period of
disability, disability insurance benefits, and supplemental
security income. See ECF No. 1-2 at pp. 1-5; ECF No.
24-1 at pp. 39-49. Plaintiff filed a request for review with
the Appeals Council asserting the ALJ did not consider her
request for an earlier onset date. See ECF No. 1-1
at pp. 1-3; ECF No. 24-2 at p. 50. In a letter dated
May 31, 2017, the Appeals Council denied
Plaintiff's request for review; this letter was
apparently sent to her in an envelope postmarked June
3, 2017. See ECF No. 1-2 at pp. 6-8; ECF
No. 24-2 at pp. 51-55; ECF No. 25-1 at p. 2. On
August 8, 2017, Plaintiff filed the instant
civil action against the Commissioner by filing a complaint
in person at the Clerk's office. See ECF No. 1;
R & R at p. 2.
Commissioner has filed a motion to dismiss Plaintiff's
complaint as untimely filed, and the Magistrate Judge
recommends granting the motion. See ECF Nos. 24
& 30. Plaintiff has filed objections to the R & R,
and the Commissioner has filed a reply to the objections.
See ECF Nos. 32 & 35.
obtain judicial review of the Commissioner's final
decision, an individual must commence a civil action in
federal district court within sixty days after receiving the
Appeals Council's notice of denial of review,
“except that this time may be extended by the Appeals
Council upon a showing of good cause.” See 42
U.S.C. § 405(g); 20 C.F.R. § 422.210(c). “The
date of receipt of the notice is presumed to be five days
after the date of such notice, unless there is a reasonable
showing to the contrary.” Stewart v. Soc. Sec.
Admin., 365 Fed.Appx. 431, 431 (4th Cir. 2010) (citing
20 C.F.R. § 422.210(c)). The Commissioner will extend
the time period for filing a civil action if the individual
files a written request with the Appeals Council
“giv[ing] the reasons why the action was not filed
within the stated time period” and “show[ing]
that [she] had good cause for missing the deadline.” 20
C.F.R. § 404.982.
sixty-day time period is a statute of limitations,
Weinberger v. Salfi, 422 U.S. 749, 763-64 (1975),
and is subject to equitable tolling. Bowen v. City of New
York, 476 U.S. 467, 479-80 (1986). “Equitable
tolling of the 60-day requirement is justified ‘where
consistent with congressional intent and called for by the
facts of the case.'” Hyatt v. Heckler, 807
F.2d 376, 380 (4th Cir. 1986) (quoting Bowen, 476
U.S. at 479). However, “in most cases the
[Commissioner] will make the determination whether it is
proper to extend the period within which review must be
sought . . . .” Bowen, 476 U.S. at 480.
the Appeals Council's notice was dated May 31, 2017, and
based upon the law discussed above, Plaintiff would
ordinarily be presumed to have received the notice five days
later on June 5, 2017 (and sixty days later would have been
August 4, 2017). See 42 U.S.C. § 405(g); 20
C.F.R. § 422.210(c). Yet, as both the Magistrate Judge
and the Commissioner recognize, the envelope containing the
Appeals Council's notice was dated June 3, 2017. Giving
Plaintiff the benefit of the doubt, she could arguably be
presumed to have received the notice five days later on June
8, 2017, and sixty days later would have been August 7, 2017.
See R & R at p. 2; ECF No. 26 at p. 1. Thus,
August 7, 2017 (a Monday), would have been the last day of
the sixty-day statute of limitations and the deadline for
Plaintiff to file this civil action. However, Plaintiff did
not file her complaint until the next day-August 8, 2017
(Tuesday). See ECF No. 1. Consequently, as the
Magistrate Judge thoroughly explains, this action was not
timely filed. See R & R at pp. 2-4.
objections, Plaintiff asserts “the United States Post
Office has validated and confirmed that the mail received
from the Commissioner cannot be an assured date received by
Plaintiff unless it was mailed to Plaintiff
certified mail, registered mail,
etc., which it was NOT.” ECF No. 32 at p.
1 (emphasis in original). Plaintiff further indicates she did
not seek an extension of the sixty-day period from the
Commissioner, stating she “did not see the need to
request an extension to show good cause for the action not
being filed within the stated time period.”
Id. Although Plaintiff claims “[t]he
limitations period was strictly followed, ” she fails
to recognize that this action was not timely filed and is not
subject to equitable tolling. Accordingly, the Court will grant
the Commissioner's motion and dismiss this action with
prejudice. See, e.g., White v. Colvin, 2013
WL 2476476, (E.D. Va. June 7, 2013) (dismissing the action
with prejudice as untimely filed), aff'd, 551
Fed.Appx. 67 (4th Cir. 2014).
foregoing reasons, the Court overrules Plaintiff's
objections and adopts and incorporates by reference the
Magistrate Judge's R & R [ECF No. 30]. Accordingly,
the Court GRANTS the Commissioner's
motion to ...