Hicks v. Colvin

Filing 23

ORDER ADOPTING REPORT AND RECOMMENDATIONS ; granting 10 Motion to Dismiss ; adopting 14 Report and Recommendations; adopting 22 Report and Recommendations. Signed by Chief Judge Michael F. Urbanski on 10/25/17. (sas)

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CLERK'S OFFICE U.S. DIST. COURT AT ROANOKE, VA FILED OCT 2 5 2017 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION AMIE NICOLE LYNCH HICKS, JUliA BY: D ) ) ) Case No. 7:16cv00293 Plaintiff, v. ) BERRYHILL,1 NANCYA. Acting Commissioner of Social Security, Defendant. ) ) ) By: Michael F. Urbanski ) Chief United States District Judge ) ORDER This matter Wjl-S referred to the Honorable RobertS. Ballou, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B), for proposed findings of fact and a ' recommended disposition. The magistrate judge filed a report and recommendation on April 17, 2017, recommending the court grant the Commissioner's motion to dismiss this action as untimely. The Commissioner argues that plaintiff Arnie Nicole Lynch Hicks missed the filing deadline 2 by three days, and the magistrate judge agreed. He reasoned that Hicks' bare allegation of mail service delay is insufficient to rebut the presumption that notice of the Appeals Council's decision was received within five days, see 20 C.F.R. § 42>2.210(c), and this is not one of the rare cases in which equitable tolling would be appropriate. Thus, the magistrate judge recommended the action be dismissed as untimely. No objections to the .. ' magistrate judge's April t7, 2017 report were filed. 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security and will be substituted for Carolyn W. Colvin as defendant in this case pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. 2 Section 405(g) of the Social Security Act requires an individual seeking review of a denial of benefits to ftl.e an action in federal court Within sixty days of the mailing of a notice of the Appeals Council's decision. 42 U .S.C. § 405(g)., Nevertheless, the court took the report under advisement and remanded this case to the magistrate judge for an evidentiary hearing to determine whether Hicks indeed received notice of the Appeals Council's decision and complied with the 60-day filing deadline. The magistrate judge held an evidentiary hearing on June 20, 2017. Following that hearing, he issued a second report on August 22, 2017, again recommending this action be dismissed as untimely. The. magistrate ~judge held that, at the evidentiary hearing, Hicks provided no aff.trtnative evidence that she received the Appeals Council's notice of decision more than five days after it was issued on April 15, 2016. Thus, Hicks has not made a reasonable showing sufficient to rebut the presumption that the notice was received five days after it was issued, nor has she established sufficient facts to justify equitably tolling the statute of limitations period, and her claim is untimely. No objections to the August 22, 2017 report have been filed.· Given the evidence adduced at the June 20, 2017 hearing before the magistrate judge, the court is satisfied that there is no clear error on the face of the record and that the , . . magistrate judge's recomme~dation should be accepted. It is accordingly ORDERED and . . \ ADJUDGED that .the Commissioner's motion to dismiss (ECF No. 10) is GRANTED, the magistrate judge's two report and recommendations (ECF Nos.14 & 22) are ADOPTED in their entirety, and this matter is DISMISSED and STRICKEN from the active docket of the court. 2 The Clerk is directed to send acopy 6£ this order 't'6all c·ounsel of record. . Entered: f1J/2Jf7-at 7 . . . /d /7'1~{; '/;4~ _t,, MichadF.~~ri~~ Chief United States Dist:rictJudge _ ....... . / 3

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