United States District Court, S.D. Ohio, Eastern Division
Angela Kennedy O/B/O William R. Kennedy, Plaintiff,
Commissioner of Social Security, Defendant.
Vascura, Magistrate Judge.
OPINION AND ORDER
MICHAEL H. WATSON, UNITED STATES DISTRICT COURT JUDGE.
March 14, 2017, Magistrate Judge Kemp, to whom this matter
was originally referred, issued a Report and Recommendation
("R&R"), ECF No. 22, recommending that the
Court grant the Commissioner of Social Security's
("the Commissioner") motion for summary judgment,
ECF No. 20. Plaintiff objects to the R&R. ECF No. 23. The
Commissioner replies in support of the R&R. ECF No. 24.
The Court has conducted a de novo review pursuant to
28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure. For the reasons that follow, the
Court OVERRULES Plaintiff's objections,
AFFIRMS and ADOPTS the
R&R, GRANTS the Commissioner's
motion for summary judgment, and DISMISSES
Sue Kennedy ("Plaintiff") seeks review of a
decision denying her deceased husband's request for
benefits made prior to his death. That request for benefits
was originally denied on March 29, 2013. ECF No. 17-2, PAGED
## 50-70. The Appeals Council denied review of that
determination on May 29, 2014. Id. at PAGEID ##
41-44. On July 24, 2014, Plaintiff timely filed a civil
action in this Court, (Case No. 2:14-cv-977), challenging
that determination. The Court reversed and remanded the case
pursuant to 42 U.S.C. § 405(g), sentence four, because
the Administrative Law Judge ("ALJ") had failed to
substantially support the original determination denying
benefits. After a new hearing on December 3, 2015, ECF No.
18-1, PAGEID ## 412-36, the ALJ issued a second determination
denying benefits on December 28, 2015, Id. at PAGEID
had two means of challenging the second determination. First,
Plaintiff had the option to submit written exceptions to the
Appeals Council by February 1, 2016. See Id. at
PAGEID # 394. Plaintiff did not do so. Instead, on February
24, 2016, three weeks after the deadline for filing written
exceptions expired, Plaintiff submitted an untimely request
for an extension of that deadline. ECF No. 20-1, PAGEID #
652. On April 30, 2016, the Appeals Council informed
Plaintiff that she had thirty days to submit proof of having
submitted a timely request for an extension of the written
exceptions deadline. Id. at PAGEID ## 653-54.
second option was to forgo submitting written exceptions to
the Appeals Council and wait sixty days for the ALJ's
second determination to become final on February 26, 2016.
ECF No. 18-1, PAGEID # 395. Plaintiff would have then had
sixty days, or until April 27, 2016, to file a timely civil
action in this Court. See Id. Plaintiff did not,
however, file a civil action by that date. Instead, Plaintiff
alleges that on May 13, 2016, she sent the Appeals Council a
facsimile seeking an extension of the civil action deadline
even though it had already expired. ECF No. 23-1, PAGEID ##
686-87. Plaintiff filed this civil action one week later, on
May 20, 2016. That same day, Plaintiff sent a facsimile to
the Appeals Council that referring to her untimely request
for an extension of the civil action deadline, and indicating
that she had filed this civil action. Id. at PAGEID
September 16, 2016, the Appeals Council informed Plaintiff
that she had failed to timely exercise her first means of
challenging the second determination by filing written
exceptions by February 1, 2016, or by submitting proof of a
timely request for an extension of the written exception
deadline. Id. at PAGEID ## 659-61. The Appeals
Council also indicated that although it received Plaintiffs
May 20, 2016, facsimile, it had never received Plaintiffs
untimely request for an extension of the April 27, 2016,
civil action deadline. Id.
Commissioner moved to dismiss Plaintiffs Complaint in this
action, or alternatively, for summary judgment, because
Plaintiffs action was untimely. The Magistrate Judge found
that the Complaint was untimely; concluded that Plaintiff did
not raise a genuine issue of material fact about good cause
for an extension of time to file this action; and recommended
granting the Commissioner's motion for summary judgment.
Standard of Review
party objects to an R&R within the allotted time, the
Court "shall make a de novo determination of
those portions of the report or specified proposed findings
or recommendations to which objection is made." 28
U.S.C. § 636(b)(1); see also Fed. R. Civ. P.
72(b). Upon review, the Court "may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge." 28 U.S.C. §
standard governing summary judgment is set forth in Federal
Rule of Civil Procedure 56(a), which provides: "The
court shall grant summary judgment if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). The moving party has the initial burden
of establishing that there are no genuine issues of material
fact as to an essential element of the nonmoving party's
claim. Moldowan v. City of Warren, 578 F.3d 351, 374
(6th Cir. 2009). Then, the non-moving party "must set
forth specific facts showing that there is a genuine issue
for trial." Id. The Court must grant summary
judgment if the opposing party fails to make a showing
sufficient to establish the existence of an element essential
to that party's case and on which that party will bear
the burden of proof at trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986); Petty v. Metro.
Gov't, of Nashville-Davidson Cnty., 538
F.3d 431, 438-39 (6th Cir. 2008).