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Garlinger v. Commissioner of Social Security

United States District Court, S.D. Ohio, Eastern Division

May 22, 2017

DANIEL GARLINGER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          EDMUND A. SARGUS, CHIEF JUDGE

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on the Commissioner's Motion to Dismiss (Doc. 11). For the following reasons, the Court RECOMMENDS GRANTING the Motion and DISMISSING this case with prejudice.

         I. BACKGROUND

         Plaintiff seeks judicial review of the final decision of the Commissioner of Social Security denying his application for disability benefits. (Doc. 3). The Commissioner has moved to dismiss Plaintiff's Complaint as time-barred. (Doc. 11). The Commissioner served her Motion on Plaintiff at the address he provided in his Complaint. (Doc. 11 at 6; see also Doc. 1-1). Plaintiff did not respond to the Commissioner's Motion. Although the Commissioner attached an affidavit to her Motion, the Court does not rely on it to reach its decision.

         As part of his Complaint, Plaintiff included the Notice of Appeals Council Action (the “Notice”) that he received. (Doc. 3-1 at 3-7). The Notice was dated December 14, 2016, and states:

         Time To File a Civil Action

• You have 60 days to file a civil action (ask for court review).
• The 60 days start the day after you receive this letter. We assume you received this Letter 5 days after the date on it unless you show us that you did not receive it within the 5-day period.
• If you cannot file for court review within 60 days, you may ask the Appeals Council to extend your time to file. You must have a good reason for waiting more than 60 days to ask for court review. You must make the request in writing and give your reason(s) in the request.
• You must mail your request for more time to the Appeals Council at the address shown at the top of this notice. Please put the Social Security number(s) also shown at the top of this notice on your request. We will send you a letter telling you whether your request for more time has been granted.

(Id. at 5).

         Plaintiff has not alleged in his Complaint or otherwise informed the Court that he requested additional time from the Appeals Council or that he received the Notice more than five days after December 14, 2016.

         II. ...


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