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Falcone v. Berryhill

United States District Court, M.D. Pennsylvania

June 2, 2017

CHRISTOPHER CHARLES FALCONE, Plaintiff
v.
NANCY BERRYHILL, [1] ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant

          Carlson Magistrate Judge

          MEMORANDUM

          JAMES M. MUNLEY UNITED STATES DISTRICT COURT JUDGE

         Before the court is Magistrate Judge Martin C. Carlson's report and recommendation, which proposes denying defendant's motion to dismiss. Defendant has filed objections to the report and recommendation, and they are ripe for disposition.

         Background

         Pro se plaintiff Christopher Charles Falcone (hereinafter “plaintiff”) timely navigated the legal field of social security disability benefits (hereinafter “DIB”) all the way through the Appeals Council, which, on June 9, 2016, denied his request to review the administrative law judge's (hereinafter “ALJ”) decision.[2]

         Plaintiff filed an application for DIB on September 22, 2011. The ALJ held a hearing on the application on October 9, 2014 and denied DIB on November 26, 2014. The appeals council denied Plaintiff's timely filed request for review on June 9, 2016. The appeals council denial notice indicates receipt would be assumed within five days of the notice date and advises plaintiff of his right to appeal within sixty (60) days from the date he received the notice.[3] According to plaintiff he received the notice on June 15, 2016. Thus, the instant civil action would be timely filed on or before August 15, 2016. Defendant filed a 12(b)(6) motion to dismiss on March 3, 2017 asserting that plaintiff's appeal is barred by the statute of limitations.[4]

         While evidence supports the appeal did arrive by U.S. Mail at the clerk of courts office on August 15, 2016, the clerk of courts did not docket the appeal until 10:01 am on August 16, 2016 and failed to stamp and docket the envelope. (Doc. 17 at 3).[5] Therefore on its face the appeal presents as untimely, missing the statute of limitations by one day. However, we concur with Magistrate Judge Carlson that the circumstances before us are unique, and that consideration of the rare-yet-traditional equitable tolling principle is de rigueur in the case before us.

         On April 26, 2017, Magistrate Carlson issued his Report and Recommendation (Doc. 17) (hereinafter “the R&R”). After an incisive evidentiary review, Magistrate Judge Carlson has recommended defendant's motion to dismiss should be denied. Defendant filed her objection to the R&R on April 28, 2017. (Doc. 18).

         The parties have briefed their respective positions and the matter is ripe for disposition.

         Jurisdiction

         The court has federal question jurisdiction over this Social Security Administration appeal. See 42 U.S.C. § 1383(c)(3) (“The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title.”); see also 42 U.S.C. § 405(g) (“Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business . . . .”).

         Standard of review

         When determining the disposition of objections to a magistrate judge's report and recommendation, the district court must make a de novo determination of those portions of the report against which objections are made. 28 U.S.C. § 636(b)(1)(c); see also Sullivan v. Cuyler, 723 F.2d 1077, 1085 (3d Cir. 1983). We may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987).

         The defendant's motion to dismiss is brought pursuant to Rule 12(b)(6). This rule provides for the dismissal of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which relief can be granted. A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rule of Civil Procedure may properly be used to challenge the timeliness of the filing of a social ...


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