Opinion
CIVIL SA-23-CV-00863-OLG
07-24-2024
KENNITA MCGARITY, Plaintiff, v. MARTIN O'MALLEY, Commissioner of Social Security Administration,[1]Defendant.
ORDER
ORLANDO L. GARCIA UNITED STATES DISTRICT JUDGE
The Court has considered United States Magistrate Judge Henry J. Bemporad's Report and Recommendation (R&R), filed May 31, 2024, concerning Defendant's Motion to Dismiss (Dkt. No. 6). See Dkt. No. 18.
The Court construed the motion to dismiss as a motion for summary judgment and gave the parties an opportunity to provide additional argument and evidence. See Dkt. No. 8.
A party who wishes to object to a Magistrate Judge's findings and recommendations must serve and file specific written objections within fourteen days. FED. R. Civ. P. 72(b)(2). The parties, through counsel, were electronically served with a copy of the R&R on May 31,2024, and Plaintiff timely filed her objections on June 11,2024. Dkt. No. 20.
When a party objects to a recommendation, the Court must make a de novo determination as to “any part of the magistrate judge's disposition that has been properly objected to.” FED. R. CIV. P. 72(b)(3); see United States, v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989), cert, denied, 492 U.S. 918 (1989). Objections must be specific; frivolous, conclusory, or general objections need not be considered by the district court. Battle v. U.S. Parole Comm 'n, 834 F.2d 419,421 (5th Cir. 1987) (quoting Nettles v. Wainwright, 677 F.2d 404, 410 n.8 (5th Cir. 1982), overruled on other grounds, Douglass v. U.S. Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996)). Any portions of the Magistrate Judge's findings or recommendations not objected to are reviewed for clear error. Wilson, 864 F.2d at 1221. Here, Plaintiff argues: (1) because the hearing attorney did not receive notice, Plaintiff should prevail; (2) the deadline to file suit is flexible under SSA regulations; (3) the doctrine of excusable neglect should apply; and (4) the filing deadline should be equitably tolled. Dkt. No. 20.
Regarding Plaintiff's first objection, the R&R correctly found that Plaintiff provided no basis to rebut the presumption of five-day receipt for notice of the Appeals Council's decision. See Dkt. No. 18 at 8; 20 C.F.R. § 422.210(c) (“[T]he date of receipt of notice of denial of request for review.. .by the Appeals Council shall be presumed to be 5 days after the date of such notice, unless there is a reasonable showing to the contrary.”). Although Plaintiff argues against the applicability of the cases cited in the R&R, it is clear that a denial of timely receipt by a plaintiff and/or her attorney, even if made under oath,, is insufficient to rebut the presumption that the notice was received five days after it was sent. Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997); McCall v. Bowen, 832 F.2d 862, 864 (5th Cir. 1987).
Plaintiff's second objection-that the deadline to file suit is flexible under SSA regulations-is without merit. See Dkt. No. 20 at 3-4. The regulation Plaintiff relies upon refers to the Appeals Council's standard of review for requests to extend the time for filing an action in a federal district court, not the standard Court applies in reviewing the applicability of an already-denied request to extend. See 20 C.F.R. § 404.982.
Plaintiffs third and fourth objections pertain to equitable tolling. See Dkt. No. 20 at 4-6. The R&R correctly noted that Plaintiff's hearing counsel mistakenly assumed acceptance of her written request for a 60-day extension to file a civil action based on the silence of the Appeals Council. Dkt. No. 18 at 9. Contrary to Plaintiff's argument, the Magistrate Judge did not suggest that Plaintiff's hearing counsel had an “affirmative duty to demand notice from the [Appeals Council] when awaiting a decision” (Dkt. No. 20 at 5) but, rather, highlighted that possible evidence of Plaintiff's diligently pursuing her rights would include checking the status of the Appeals Council's review of the request to extend and/or assuming denial and proceeding under the presumption that the deadline to file would be May 26, 2023. See Dkt. No. 18 at 9, In light of the foregoing, the Court finds that the R&R is in all things correct and should be accepted. Accordingly, the Court ADOPTS the Magistrate Judge's recommendation, and, for the reasons stated therein, Defendant's motion to dismiss, which has been construed as a motion for summary judgment (Dkt. No. 6), is GRANTED, and this matter is hereby DISMISSED WITH PREJUDICE.
This case is CLOSED.
It is so ORDERED.