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Pliscott v. Colvin

United States District Court, D. Minnesota

August 13, 2014

Kristina Pliscott, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

Kristina Pliscott, Pro Se; and

Ann M. Bildtsen, Office of the United States Attorney, 300 South Fourth Street, Suite 600, Minneapolis, MN 55415, for Defendant.

MEMORANDUM OPINION AND ORDER

SUSAN RICHARD NELSON, District Judge.

I. INTRODUCTION

This matter is before the Court on Plaintiff's Amended Objection[1] [Doc. No. 17] and Corrected Amended Objection[2] [Doc. No. 19] to United States Magistrate Judge Steven E. Rau's July 11, 2014, Amended Report and Recommendation ("Am. R & R") [Doc. No. 15]. The Magistrate Judge recommended that this Court grant Defendant's Motion to Dismiss [Doc. No. 4]. For the reasons set forth below, Plaintiff's objections are overruled and the Court adopts the R & R in its entirety.

II. BACKGROUND

The factual and procedural background of this matter is thoroughly detailed in the Magistrate Judge's Amended R & R and is incorporated herein by reference. (Am. R & R [Doc. No. 15].) Briefly, Plaintiff Kristina Pliscott ("Pliscott") applied for disability insurance benefits on June 19, 2006, claiming that she became disabled on May 1, 1996. (Herbst Decl. ¶ 3(a), Ex. 1, p. 4 [Doc. No. 6].) Pliscott's claim was denied on September 12, 2006, and denied again on reconsideration. (Id.) Subsequently, Pliscott's request for a hearing was granted and on August 19, 2008, an Administrative Law Judge ("ALJ") heard the matter. (Id.) On November 28, 2008, the ALJ issued his decision denying Pliscott's claim. (Id.) The Appeals Council denied Pliscott's request for review on July 31, 2009, sending her a notice of its action, and informing her of her right to commence a civil action within sixty days pursuant to 42 U.S.C. § 405(g). (Herbst Decl. ¶ 3(a), Ex. 2 [Doc. No. 6].) The Appeals Council's denial of review rendered the ALJ's decision final. (Id.)

On two occasions (October 2, 2009 and September 11, 2010), Pliscott requested and was granted a sixty-day extension of the time to file a civil action. (Herbst Decl. ¶ 3(b)-(c), Exs. 3-5 [Doc. No. 6].) On March 8, 2013, more than two years after the September 11, 2010 extension expired, Pliscott requested that the Appeals Council reopen her case or grant another extension. ( Id. at ¶ 3(d), Ex. 7.) The Appeals Council denied both requests. (Id.)

Pliscott filed this action on June 7, 2013 [Doc. No. 1]. Defendant filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) [Doc. No. 4]. Because the Court considered matters outside of the pleadings, including numerous exhibits submitted by both parties, Defendant's Motion to Dismiss was converted to a motion for summary judgment. (Am. R & R at 4 [Doc. No. 15].) The Magistrate Judge found that Pliscott's Complaint was untimely filed-more than two years after the sixty-day filing period provided by 42 U.S.C. § 405(g) had lapsed. ( Id. at 7.) Moreover, the Court determined that Pliscott's delay in filing was due only to lack of diligence on her part, and accordingly, equitable tolling was not warranted. ( Id. at 8.) Concluding that this case is time-barred under 42 U.S.C. § 405(g), the Magistrate Judge recommended dismissal of this action. (Id.)

III. DISCUSSION

The district court reviews de novo those portions of the R & R to which an objection is made and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C); accord D. Minn. LR 72.2(b). The Court gives Pliscott's objections the most liberal construction possible in light of her pro se status.

Pliscott first objects to the Magistrate Judge's finding that the Defendant met its burden of proof with respect to the untimeliness of her Complaint. (Corrected Am. Obj. at 2 [Doc. No. 19].) This objection is without merit. There is sufficient evidence on record establishing that Pliscott's Complaint was filed more than two years after the sixty-day period provided by 42 U.S.C. § 405(g) had run. (See Herbst Decl. ¶ 3(a)-(e), Exs. 1-8 [Doc. No. 6].) Moreover, after receiving two sixty-day extensions to file suit, Pliscott still failed to commence the instant legal action until June 7, 2013-nearly three years after the second extension period had run.

Pliscott next objects to the Magistrate Judge's consideration of matters outside the pleadings with respect to Defendant's Motion to Dismiss. (Corrected Am. Obj. at 2 [Doc. No. 19].) Pliscott argues this was improper-asserting that the Defendant has fraudulently concealed or withheld the relevant information from her. (Id.) As both parties submitted numerous exhibits to the Court for consideration, [3] the Magistrate Judge properly converted Defendant's Motion to Dismiss to a motion for summary judgment. See Fed.R.Civ.P. 12(d). There is no evidence that the Defendant has withheld any information from Pliscott. Pliscott was properly served the Declaration and corresponding exhibits used by the Defendant to support the Motion to Dismiss. [Doc. No. 7] Accordingly, this objection is also meritless.

On the basis of the Defendant's purported fraudulent behavior, Pliscott attempts to recharacterize her claim, asserting arguments under the Racketeer ...


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