Nicholas v. Commissioner of Social Security

Filing 22

REPORT AND RECOMMENDATIONS re 20 MOTION for Reconsideration filed by Yong Hui Nichols. IT IS THEREFORE RECOMMENDED THAT: 1. Plaintiffs presently pending pro se Motion for Reconsideration (Doc. 20 ) be DENIED; and 2. This case remain closed on the Courts docket. Objections to R&R due by 3/11/2013. Signed by Magistrate Judge Sharon L Ovington on 2/22/2013. (kf)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
YONG HUE NICHOLS,

:

Plaintiff,

:
Case No. 3:10cv00301

vs.

:

MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration,
Defendant.

:

District Judge Timothy S. Black
Chief Magistrate Judge Sharon L. Ovington

:
:

REPORT AND RECOMMENDATIONS1

On August 11, 2011, the Clerk of Court entered Judgment in this case, effecting this
Court’s Decision and Entry issued that same date. As a result, this matter was remanded (in
part) to the Social Security Administration for payment of Disability Insurance Benefits to
Plaintiff based on the conclusion that she was under a benefits-qualifying disability
beginning on May 8, 2009. The remand Decision was not challenged and is not presently
being challenged in this Court or on appeal.
What is being challenged is this Court’s conclusion that Plaintiff was not under a
benefits-qualifying disability before May 8, 2009. This arises in Plaintiff’s presently
pending pro se Motion for Reconsideration (Doc. #20) and Notice (Doc. #21). She filed her

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Attached hereto is NOTICE to the parties regarding objections to this Report and
Recommendations.

Motion for Reconsideration on January 4, 2013, more than one year and four months after
Judgment was entered in this case.
This Court may generally relieve a party from a Judgment for any of the following
reasons:
(1)
(2)
(3)
(4)
(5)

(6)

mistake, inadvertence, surprise, or excusable neglect;
newly discovered evidence that, with reasonable diligence, could not have
been discovered in time to move for a new trial under Rule 59(b);
fraud..., misrepresentation, or misconduct by an opposing party;
the judgement is void;
the judgment has been satisfied, released or discharged; it is based on an
earlier judgment that has been reversed or vacated; or applying it prospectively
is no longer equitable; or
any other reason that justifies relief.

Fed. R. Civ. P. 60(b). “The burden is on the movant to bring herself within the provisions of
Rule 60(b).” In re G.A.D., Inc., 340 F.3d 331, 334 (6th Cir. 2003).
“A motion under Rule 60(b) must be made within a reasonable time – and for reasons
(1), (2), and (3) no more than a year after the entry of the judgment or order or the date of
the proceeding.” Fed. R. Civ. P. 60(c)(1); see In re G.A.D., Inc., 340 F.3d at 334.
Plaintiff’s Motion and Notice provide no explanation of why she did not seek relief
from the Judgment for more than one year after it was entered. Her Motion and Notice are
therefore untimely under Rule 60(b)(1), (2), and (3). Plaintiff, moreover, has not met her
burden of demonstrating that her circumstances fall within the any of Rule 60(b)’s
provisions. She instead asks the Court to reconsider the Judgment on its merits for reasons
related to her family circumstances, including, for example, the fact that she has a 16-yearold son to support and the fact that her ex-husband cannot control money. (Doc. #20).
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Although she describes very difficult personal and family circumstances, her description
does not identify matters falling within a ground for relief from judgment authorized by Rule
60(b)(1)-(6). Her Notice suffers from the same problem with the additional reference “to an
MRI done on 12/19/2006” and to the fact that she is now “seeing Dr. Steven M. Kleinhenz
MD at Far Oaks Orthopedics” for treatment of her left shoulder injury, which causes her left
should to freeze. (Doc. #21). And she notes, “I have more treatment papers to show to
prove this long time injury.” Id. This information and evidence, while pertinent to her
ongoing health problems and circumstances, do not implicate a reason to warrant relief
under Rule 60(b)(1)-(6).
Accordingly, Plaintiff is not entitled to relief from the Judgment previously entered in
this case.
IT IS THEREFORE RECOMMENDED THAT:
1.

Plaintiff’s presently pending pro se Motion for Reconsideration (Doc. #20) be
DENIED; and

2.

This case remain closed on the Court’s docket.

February 22, 2013
s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within fourteen days after being
served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period
is extended to seventeen days because this Report is being served by one of the methods of
service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the
portions of the Report objected to and shall be accompanied by a memorandum of law in
support of the objections. If the Report and Recommendations are based in whole or in part
upon matters occurring of record at an oral hearing, the objecting party shall promptly
arrange for the transcription of the record, or such portions of it as all parties may agree
upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise
directs. A party may respond to another party’s objections within fourteen days after being
served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S.
140 (1985).

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