Smith v. Social Security Administration

Filing 10

ORDER ADOPTING in part and denying in part REPORT AND RECOMMENDATIONS and granting 5 Motion to Dismiss filed by Social Security Administration. Signed by Judge D. P. Marshall Jr. on 11/4/11. (kpr)

Download PDF
IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS EASTERN DIVISION SHEILA D. SMITH v. PLAINTIFF No.2:11-cv-62-DPM-HDY MICHAEL J. ASTRUE, Commissioner of the Social Security Administration DEFENDANT ORDER The Court has reviewed Magistrate Judge H. David Young's Proposed Findings and Recommendations, Document No.7, and Smith's objection, Document No.8, and adopts Judge Young's proposed disposition. The Court approaches the timeliness issue de novo. FED. R. CN. P. 72(b)(3). Smith claims she and her attorney never received notice of the Appeals Council's decision. Document No.8, at ,-r 3. But Smith appealed that decision to this Court, so it must have come to hand somehow. The Court asked Smith's lawyer some questions to clarify and supplement the record on this point. Document No. 9. The deadline for responding has passed and no response has been filed. As the record stands, there has been no "reasonable showing" that Smith or her lawyer did not get notice within the presumptive five-day mailing period. 20 C.F.R. § 422.210(c). Without more, equitable tolling is inappropriate. Bess v. Barnhart, 337 F.3d 988 (8th Cir. 2003). Magistrate Judge Young's Proposed Findings and Recommendations, Document No.7, adopted in part and declined in part. Motion, Document No. 5, granted. Smith's complaint is dismissed with prejudice as untimely. So Ordered. D.P. Marshall Jr. t/' United States District Judge t( NtN, -2­ ;LO / I

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?