Oborski v. Colvin, CIVIL ACTION NO. 3:14-2237

CourtUnited States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
Writing for the CourtJUDGE MANNION
PartiesJEFFREY OBORSKI, Plaintiff v. CAROLYN COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant
Docket NumberCIVIL ACTION NO. 3:14-2237
Decision Date12 November 2015

JEFFREY OBORSKI, Plaintiff
v.
CAROLYN COLVIN, ACTING COMMISSIONER OF
SOCIAL SECURITY, Defendant

CIVIL ACTION NO. 3:14-2237

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

November 12, 2015


(JUDGE MANNION)

MEMORANDUM

Pending before the court is the defendant's motion to dismiss the instant action, (Doc. 7), and the report of Magistrate Judge Martin C. Carlson which recommends that the defendant's motion be granted, (Doc. 12). Based upon the court's review of the record in this action, Judge Carlson's report will be adopted and the instant action dismissed.

As reflected in Judge Carlson's report, the background of this action is not disputed by the parties. The plaintiff filed an application for disability insurance benefits on March 24, 2011. On September 15, 2011, the Commissioner denied the plaintiff's application and, on November 16, 2011, the plaintiff filed a timely request for a hearing before an Administrative Law Judge, ("ALJ").

A hearing was held before the ALJ on January 3, 2013, after which, on February 7, 2013, the ALJ issued a decision denying the plaintiff's application for benefits. The plaintiff filed a timely request for review of the ALJ's decision

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with the Appeals Council.

The Appeals Council denied the plaintiff's request for review on September 17, 2014. In the denial notice, the plaintiff was advised of his right to commence a civil action within sixty days from the date of receipt of the notice, and that the Appeals Council would presume that he received a copy of the notice within five days of the date of the notice. The plaintiff was further advised that he could request an extension of the time, if necessary. In order to be timely, the plaintiff needed to have filed the instant civil action on or before November 21, 2014. The plaintiff filed the action on November 24, 2014. (Doc. 1).

On February 25, 2015, the defendant filed a motion to dismiss the plaintiff's complaint as untimely. (Doc. 7). The plaintiff's counsel responded to the defendant's motion conceding that he did not meet the filing deadline, nor did he seek an extension of the deadline from the Appeals Council. (Doc. 10). Citing to a number of mental, physical and emotional challenges relating to himself, counsel indicated that the error in filing the complaint untimely was his responsibility and argued that the plaintiff should not be held accountable. Pursuant to Fed.R.Civ.P. 60(b)(1) and (6) and Fed.R.Civ.P. 61, counsel argued that the defendant's motion to dismiss the complaint should be denied. After considering the parties' filings, Judge Carlson issued a report in which he recommends that the defendant's motion to dismiss be granted and

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the instant action be dismissed as untimely. (Doc. 12). The plaintiff has filed objections to the report in which he argues that the court should excuse the untimely complaint under the provisions of Fed.R.Civ.P. 60(b)(1) and (6) and Fed.R.Civ.P. 61. (Doc. 13).

When objections are timely filed to the report and recommendation of a magistrate judge, the district court must review de novo those portions of the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo, the extent of review is committed to the sound discretion of the district judge, and the court may rely on the recommendations of the magistrate judge to the extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa. 2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

For those sections of the report and recommendation to which no objection is made, the court should, as a matter of good practice, "satisfy itself that there is no clear error...

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