Opinion
CIVIL ACTION NO. 3:17-CV-2038
02-01-2019
JENNIFER CONOVER, Plaintiff, v. SOCIAL SECURITY, Defendant.
(MUNLEY, J.)
() REPORT AND RECOMMENDATION
This is an action brought under Section 1383(c) of the Social Security Act and 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security (hereinafter, "the Commissioner") denying Plaintiff Jennifer Conover's claims for a period of disability and disability insurance benefits ("DIB") under Titles II and XVI of the Social Security Act. (Doc. 1). The government has filed a motion to dismiss (Doc. 8) stating that the complaint was not timely filed. For the reasons set forth below, this Court will recommend that this motion be granted.
On May 16, 2014, Plaintiff Jennifer Conover filed applications for disability insurance benefits (DIB) and supplemental security income (SSI). On July 23, 2014, Acting Commissioner denied plaintiff's applications and plaintiff filed a timely request for a hearing on July 25, 2014. On March 15, 2016, an administrative law judge (ALJ) held a hearing. On May 3, 2016, after considering all the evidence, the ALF issued a decision denying plaintiff's applications for DIB and SSI.
Plaintiff requested Appeals Counsel review of the ALJ's decision. On August 30, 2017, the Appeals Counsel denied plaintiff's request for review of the ALJ's decision. The Appeals Counsel mailed its denial notice to plaintiff at her mailing address in Shamokin, PA. The August 30, 20178 denial notice informed plaintiff of her right to commence a civil action within sixty (60) days from the date of receipt of the notice.
In addition, the Appeals Council's denial letter instructed plaintiff that if she could not file her complaint within sixty (60) days of receipt of the notice, she could request that the Appeals Council extend the time in which she could commence a civil action. The denial notice also indicated that the Appeals Council would presume plaintiff received a copy of the notice within five (5) days of the date of the notice and plaintiff received that notice within the five-day period. Therefore, including five additional days for mailing, plaintiff needed to commence a civil action on or before November 3, 2017.
On November 7, 2017, four days after the time for initiating a civil action expired, plaintiff file her complaint. (Doc. 1).
On January 22, 2018, the Defendants filed a motion to dismiss the complaint. (Doc. 8). On January 22, 2018, the Defendants filed a brief in support of the motion. (Doc. 9). The plaintiff failed to file a brief in opposition to the motion to dismiss, which was to be filed on or before March 8, 2018. Since the brief was not filed, the Plaintiff is deemed not to oppose the motion to dismiss. See L.R. 7.6.
As such, it is recommended that the Defendant's motion to dismiss be granted for failure to file the complaint in a timely manner, and that the Clerk of Court be directed to close this case. Dated: February 1, 2019
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated February 1, 2019.
Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.Dated: February 1, 2019
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge