United States District Court, N.D. West Virginia
ORDER ADOPTING REPORT AND RECOMMENDATION [DKT.,
M. KEELEY UNITED STATES DISTRICT JUDGE
February 3, 2017, the pro se plaintiff, Robert
Thomas Johnston (“Johnston”), filed a complaint
against the defendant, the Commissioner of Social Security
(“the Commissioner”) (Dkt. No. 1). Johnston
sought review of the Commissioner's final decision
denying an award of disability insurance benefits from
December 19, 2014, to the present. Pursuant to 28 U.S.C.
§ 636 and the local rules, the matter was referred to
the Honorable Robert W. Trumble, United States Magistrate
Judge, for initial review.
Johnston moved for summary judgment (Dkt. No. 23), on
November 20, 2017, the Commissioner moved to dismiss his
complaint as untimely (Dkt. No. 29). In a report and
recommendation (“R&R”) entered on January 3,
2018, Magistrate Judge Trumble recommended that the Court
grant the Commissioner's motion (Dkt. No. 35). First, the
magistrate judge reasoned that Johnston failed to file his
complaint within 60 days of receiving the Commissioner's
final decision, as required by statute. Id. at 7.
Second, the R&R concluded that Johnston is not entitled
to equitable tolling because he has not established the
requisite extraordinary circumstance or due diligence.
Id. at 7-9.
R&R also informed Johnston of his right to “file
written objections identifying the portions of the Report and
Recommendation to which objections are made and the basis for
such objections.” Id. at 10. It further warned
that failure to do so may result in waiver of the right to
appeal. Id. The Court received Johnston's timely
objections on January 22, 2018 (Dkt. No. 37). In his
objections, Johnston does not contest that he filed this case
outside the statute of limitations, but rather contends that
“good cause does exist” to support equitable
tolling. Id. at 1. More particularly, Johnston
reasserts his contentions that he was out of the country
until 15 days before the statute of limitations expired, and
that he exhibited due diligence by contacting the Social
Security Administration and Clerk of Court. Id.
Court will review de novo any portions of the magistrate
judge's Report and Recommendation to which a specific
objection is made . . . and the Court may adopt, without
explanation, any of the magistrate judge's
recommendations to which the [parties do] not object.”
Dellacirprete v. Gutierrez, 479 F.Supp.2d 600,
603-04 (N.D. W.Va. 2007) (citing Camby v. Davis, 718
F.2d 198, 199 (4th Cir. 1983)). Failure to file specific
objections waives appellate review of both factual and legal
questions. See United States v. Schronce, 727 F.2d
91, 94 & n.4 (4th Cir. 1984); see also Moore v.
United States, 950 F.2d 656, 659 (10th Cir. 1991).
individual may appeal a final decision of the Commissioner
“within sixty days after the mailing to him notice of
such decision or within such further time as the Commissioner
of Social Security may allow.” 42 U.S.C. § 405(g).
The notice “shall be presumed to be [received] 5 days
after the date of such notice, unless there is a reasonable
showing to the contrary.” 20 C.F.R. § 422.210(c).
“If the plaintiff successfully rebuts the presumption,
the burden shifts to the Commissioner to show that the
plaintiff received actual notice of the Commissioner's
decision more than sixty days prior to filing the complaint
in district court.” McMahan v. Barnhart, 377
F.Supp.2d 534, 535 (W.D. Va. 2005) (citing Matsibekker v.
Heckler, 738 F.2d 79, 81 (2d Cir. 1984)).
allegations of mail service delay are insufficient to rebut
the five-day presumption of receipt.” Rather, a
“reasonable showing” of late receipt must be
supported by affirmative and concrete evidence that
“actual receipt occurred more than five days after
issuance.” Hicks v. Berryhill, No.
7:16-CV-293, 2017 WL 4833512, at *1 (W.D. Va. Aug. 22, 2017)
(collecting cases); see also Garcia v. Comm'r of Soc.
Sec., 53 Fed.Appx. 192, 194-95 (3d Cir. 2002)
(unpublished decision); Wilson v. Astrue, No.
5:06-00486, 2009 WL 2996661, at *4 (S.D.W.Va. Sept. 11,
the Notice of Appeals Council Action is dated November 2,
2016 (Dkt. No. 29-2 at 3, 28), and Johnston is presumed to
have received the notice by November 7, 2016. 20 C.F.R.
§ 422.210(c). Unless he can make “a reasonable
showing to the contrary, ” Johnston was required to
file this action no later than January 6, 2017, well in
advance of when he actually filed his complaint on February
3, 2017 (Dkt. No. 1). In his objections, Johnston does not
contend that delivery of the notice was delayed, but rather
claims that he did not actually review the notice until
December 23, 2016, when he returned from a trip to Bucharest,
Romania, and reviewed his mail (Dkt. No. 37 at 1). In
support, he attached photocopies of his passport tending to
prove that he was in Romania from September 23 to December
21, 2016 (Dkt. No. 37-1).
true, Johnston's explanation simply is not “a
reasonable showing to the contrary.” 20 C.F.R. §
422.210(c). The Northern District of California addressed a
similar circumstance in Alam v. Astrue, where the
plaintiff requested a hearing 49 days after expiration of a
60-day deadline. No. C 07-01311 CRB, 2008 WL 2397421, at *1
(N.D. Cal. June 10, 2008). The plaintiff argued that he had
not “literally receiv[ed] notice” until he
returned from a six-month trip to Bangladesh and reviewed his
mail. Id. at *1-*2. The district court rejected this
argument, reasoning that “[t]he time limitation does
not begin to run when a claimant chooses to read the notice;
it begins to run when it is received, that is, delivered to
the address provided by the plaintiff.” Id. at
Johnston's 60-day statute of limitations began to run
when the Commissioner's notice was delivered to the
address that he provided, not when he decided to review his
mail. Johnston has not offered any evidence to rebut the
presumption that the notice was delivered to his address by
November 7, 2016, within five days of its mailing on November
2, 2016. Because Johnston did not file ...