Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kennedy v. Commissioner of Social Security

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

August 28, 2017

Angela Kennedy O/B/O William R. Kennedy, Plaintiff,
v.
Commissioner of Social Security, Defendant.

          Vascura, Magistrate Judge.

          OPINION AND ORDER

          MICHAEL H. WATSON, UNITED STATES DISTRICT COURT JUDGE.

         On 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 Plaintiffs complaint.

         I. BACKGROUND

         Angela 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 ## 394-407.

         Plaintiff 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.

         Plaintiffs 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 # 685.

         On 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.[1] Id.

         The 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.

         II. ANALYSIS

         A. Standard of Review

         When a 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. § 636(b)(1).

         The 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).

         B. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.