Luna v. Commissioner of Social Security

Middle District of Florida, flmd-8:2016-cv-02010

ORDER adopting {{14}} REPORT AND RECOMMENDATIONS; denying {{11}} MOTION to dismiss for failure to state a claim filed by Commissioner of Social Security. Signed by Judge James D. Whittemore on 12/28/2016. (AO)

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PageID 83 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION DEBRA LUNA, Plaintiff, VS. Case No. 8: 16 - cv - 2010 - T - 27MAP CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. ORDER BEFORE THE COURT is the Report and Recommendation submitted by the Magistrate Judge recommending that Commissioner's Motion to Dismiss construed as a motion for summary judgment (Dkt. 11) be denied (Dkt. 14) . Neither party submitted additional evidentiary materials after the Magistrate Judge advised he would consider the motion to dismiss as a summary judgment mm motion (Dkt. 13) . Neither party has filed objections to the Report and Recommendation where the Magistrate Judge found that the Plaintiff has shown the extraordinary circumstances necessary for equitable tolling. The agency effectively mislead her by sending the notice of her right to appeal to her former representative despite informing Mr. Steinberg it would deal directly with him regarding her claims. After careful consideration of the Report and Recommendation in conjunction with an independent examination of the file, the Court is of the opinion that the Report and Recommendation should be adopted, confirmed, and approved in all respects. Accordingly, the Report and Recommendation (Dkt. 14) is adopted, confirmed, and approved in all respects and is made a part of this order for all purposes, including appellate review. Commissioner's Motion to Dismiss (Dkt. 11) is DENIED. DONE AND ORDERED on this 28 day of December, 2016. nn JAMES D. WHITTEMORE United States District Judge Copies to: Counsel of record