Elizabeth S. v. Frank Bisignano, Commissioner of Social Security

Summary

A United States magistrate judge recommends granting the Commissioner of Social Security’s motion to dismiss a pro se plaintiff’s appeal as untimely under 42 U.S.C. § 405(g) and 20 C.F.R. § 422.210(c). The recommendation also concludes that the plaintiff waived opposition by failing to respond and gives notice of the fourteen-day objection period.

Holdings

1. The court may consider an undisputed notice of denial that is central to the Plaintiff's appeal without converting the motion to dismiss into a motion for summary judgment.
2. The Plaintiff's complaint was untimely because it was filed more than sixty days after the Appeals Council mailed its notice of denial, even accounting for the presumptive five-day receipt period.
3. The Plaintiff waived opposition to the motion to dismiss by failing to file a timely response required by the local rule, and dismissal on that basis would not offend equity.

Questions Presented

1. Whether the court could consider the Appeals Council's notice of denial on the Commissioner's motion to dismiss without converting the motion into one for summary judgment.
2. Whether the Plaintiff's Social Security complaint was untimely under 42 U.S.C. § 405(g) and 20 C.F.R. § 422.210(c).
3. Whether the Plaintiff's failure to respond to the motion to dismiss waived opposition under the local rules.

Disposition

other