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Jennings v. Berryhill

United States District Court, S.D. West Virginia, at Bluefield

May 31, 2017

ANGELA GAIL JENNINGS, Plaintiff,
v.
NANCY A. BERRYHILL[*], Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          David A. Faber Senior United States District Judge.

         By Standing Order, this action was referred to United States Magistrate Judge Cheryl A. Eifert for submission of findings and recommendation regarding disposition pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Judge Eifert submitted to the court her Findings and Recommendation on January 20, 2016, in which she recommended that the court grant defendant's motion to dismiss, dismiss this matter with prejudice, and remove the matter from the court's docket.

         In accordance with the provisions of 28 U.S.C. § 636(b), plaintiff was allotted fourteen days and three mailing days in which to file any objections to Magistrate Judge Eifert's Findings and Recommendation. The failure of any party to file such objections within the time allowed constitutes a waiver of such party's right to a de novo review by this court. Snyder v. Ridenour, 889 F.2d 1363 (4th Cir. 1989).

         On February 8, 2016, plaintiff filed several letters with the court which the court has construed as her objections. (ECF Nos. 12 and 13). With respect to those objections, the court has conducted a de novo review.

         On November 13, 2015, defendant moved to dismiss plaintiff's complaint arguing that it was not timely filed. Magistrate Judge Eifert informed plaintiff that she had a deadline of December 13, 2015 in which to respond to the motion to dismiss and that, “a failure to respond will support a conclusion that Defendant's contentions are undisputed and may result in a dismissal of the complaint.” (ECF No. 10). Plaintiff did not file anything with the court by December 13, 2015 and the PF&R was issued.

         According to plaintiff, she “faxed an appeal letter on December 8, 2015 to Jennifer Mankin [the AUSA assigned to the case] to appeal the denial of my original application. I sent it to the fax number on the letter, but apparently it was sent to the wrong place. I then followed up with many calls to confirm the receipt of the letter, with no response.” (ECF No. 13).

         The letter that was presumably sent to AUSA Mankins which should have been filed with the court stated:

I am appealing the decision to close my case regarding application for Social Security Childhood Disability.
Apparently, my paperwork was sent in a few days too late. I apologize for the delay.
I would like to plead my case:
1) I have pursued this case for the past 4 years. I believe I am eligible to receive the Childhood Disability Social Security since I was medically treated for Lupus before the age of 22 yrs. I am currently receiving Black Lung Childhood Disability.
2) I was working closely with a staff member in the Social Security office, seeking information to help me with filing procedures. I was under the impression that I had sufficient time to submit the paperwork by the deadline.
Please consider opening the case by reviewing the medical records, and my hard fought efforts for a positive ...

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