IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

REGINA B. and MALAYSIA B., Plaintiffs, Civil Action No. v. 1:21-cv-00685-SDG COMMISSIONER OF SOCIAL SECURITY, Defendant.

OPINION AND ORDER This matter is before the Court on pro se Plaintiffs Regina B. and Malaysia B.’s Objections [ECF 9] to United States Magistrate Judge Linda T. Walker’s Final Report & Recommendation (R&R) [ECF 7], recommending dismissal of this action. For the following reasons, Plaintiffs’ Objections [ECF 9] are OVERRULED, and the R&R [ECF 7] is ADOPTED as the Order of this Court. Plaintiff Regina B. seeks judicial review of the final decision by the Commissioner of the Social Security Administration (Commissioner) denying disability benefits to her daughter, Malaysia B.1 Judge Walker’s April 12 R&R granted Plaintiffs’ application for leave to proceed in forma pauperis, but it recommended that the action be dismissed for lack of jurisdiction.

1 ECF 5. The R&R correctly notes that the Court must sua sponte raise the question of jurisdiction “at the earliest possible point in the proceeding,” and the Court has no jurisdiction over this case because Plaintiffs’ appeal is time-barred.2 The R&R further explains that Plaintiffs needed to have filed suit within sixty days of

receiving the Commissioner’s final decision denying Malaysia B. benefits.3

(g). See also

, 416.1481, 422.210(c). “[U]nless there is a reasonable showing to the contrary,” receipt is “presumed to be 5 days after the

date” of the Commissioner’s decision.4

(c); see also

§ 404.901 (“Date you receive notice means 5 days after the date on the notice, unless you show us that you did not receive it within the 5-day period.”); id. § 416.1401 (same). Because Plaintiffs seek review of a decision dated November 5, 2020, Judge Walker

correctly presumed that they received notice on November 10, 2020. Judge Walker further found that Plaintiffs did not submit evidence that shows the Commissioner’s decision was issued on a different date, so “Plaintiffs were

2 Id. at 1–2 (quoting Kirkland v. Midland Mortg. Co.,

, at 1279–80 (11th Cir. 2001)). 3 Id. at 2. 4 Id. required to file this action by January 9, 2021.”5 Plaintiffs filed suit on February 16; therefore, Judge Walker recommended dismissal.6 A party challenging a R&R issued by a federal magistrate judge must file written objections that specifically identify the portions of the proposed findings

and recommendations to which an objection is made and must assert a specific basis for the objection. United States v. Schultz,

(11th Cir. 2009). Plaintiffs objected on April 26, arguing that “the dates on the review request and

the USPS’s stamp on [the] front [of the] envelope . . . should reflect timeliness.”7 In other words, Plaintiffs argued that they filed suit before January 9, 2021. The district court must “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection

is made.”

(b)(1); Jeffrey S. ex rel. Ernest S. v. State Bd. of Educ. of Ga.,

(11th Cir. 1990). After a de novo review, the Court finds that Plaintiffs mailed the envelope containing their initial complaint on February 11,

2021, according to its postmark.8 At that point, Plaintiffs were already out of time

5 Id. at 3. 6 Id. at 3–4. 7 Id. 8 ECF 1-3, at 3. to file this action and well past their January 9, 2021 deadline. Moreover, Plaintiffs

present no evidence to suggest that the Commissioner’s decision was issued on

any date other than November 5, 2020—the date they include in their initial complaint.? As a result, the Court finds that it has no jurisdiction to review the Commissioner’s final decision. Plaintiffs’ Objections [ECF 9] are OVERRULED, and the R&R [ECF 7] is ADOPTED. The Clerk is DIRECTED to close the case. SO ORDERED this 28th day of March, 2022.

Some Steven D. Grimberg United States District Court Judge

9 ECF 1-1; ECF 1-2.