Claybaugh v. Social Security, Commissioner of

Filing 23

ORDER Adopting 19 Report and Recommendation granting 8 Motion to Dismiss filed by Social Security, Commissioner of Signed by District Judge Bernard A Friedman. (CMul)

Claybaugh v. Social Security, Commissioner of

Doc. 23

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION LARRY E. CLAYBAUGH, JR., Plaintiff, vs. COMMISSIONER OF SOCIAL SECURITY, Defendant. ______________________________________/ ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING DEFENDANT'S MOTION TO DISMISS This matter is before the Court on Magistrate Judge Michael Hluchaniuk's Report and Recommendation ("R and R") dated October 19, 2010. This Court had an opportunity to fully review this matter and believes that the Magistrate Judge has reached the correct conclusions for the proper reasons. Defendant, in its motion to dismiss, asserts that Plaintiff failed to timely file his complaint for review of the Commissioner's decision to deny benefits. Defendant has submitted supporting affidavits and documentation to substantiate this assertion. Plaintiff argues that he attempted to file his appeal in the wrong court, and that by the time he realized his mistake, his sixty day appeal period had expired. However, Plaintiff has not offered any evidence of his attempt to file his appeal in the wrong court. The Magistrate Judge correctly found that there is no basis in the record for the Court to apply equitable tolling to Plaintiff's claim, and recommended that Plaintiff's claim be dismissed. The Court, having reviewed the record, has Case No. 10-11423 HON. BERNARD A. FRIEDMAN

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reached the same conclusion. Accordingly, IT IS HEREBY ORDERED that Magistrate Judge Michael Hluchaniuk's Report and Recommendation dated October 19, 2010 is hereby accepted and adopted. IT IS FURTHER ORDERED Defendant's Motion to Dismiss is GRANTED.

Dated: November 29, 2010 Detroit, Michigan

s/Bernard A. Friedman_____________ BERNARD A. FRIEDMAN UNITED STATES DISTRICT JUDGE

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