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Eric Tripp v. Michael Astrue

May 24, 2012


The opinion of the court was delivered by: Ellen Segal Huvelle United States District Judge


Plaintiff, proceeding pro se, commenced this case under 42 U.S.C. § 405(g) against Michael Astrue, the Commissioner of Social Security, seeking review of the Social Security Administration's ("SSA") denial of his application for disability insurance benefits and supplemental security income. Plaintiff applied for benefits after suffering an injury to his right hand "due to an accident at my former residence." (Compl. at 1.) Defendant moved to dismiss the case or for judgment on the pleadings, asserting that this case was untimely because it was filed more than 60 days after the presumed and unrebutted date on which the plaintiff received notice of the SSA's final decision, which was five days after that decision was rendered. (Mot. to Dismiss and Mem. in Supp. of the Comm'r's Mot. to Dismiss [Dkt. # 7].) Applying the time computations set forth at Federal Rule of Civil Procedure 6(a) to exclude Saturdays, Sundays, and legal holidays from the five-day period, the Court found that "the complaint, on its face, [was] not conclusively time-barred" and denied defendant's motion to dismiss. See Tripp v. Astrue, No. 08-cv-1861, 2009 WL 3784607 (D.D.C. Nov. 12, 2009).

Defendant now moves under Rule 54(b) of the Federal Rules of Civil Procedure for the Court to revise the Order denying his motion to dismiss on the basis that it erroneously applied Rule 6(a). Defendant argues correctly that Rule 6(a) does not apply because "[t]he five-day grace period at issue in the present case is specified in a regulation, i.e., 20 C.F.R. § 422.210(c)," Banks v. Astrue, No. 09-cv-22, 2009 WL 2046861, at *2 (W.D. Ky. June 13, 2009) (emphasis in original), not in the Federal Rules of Civil Procedure or "in any local rule or court order, or in any statute[.]" Fed. R. Civ. P. 6(a). The Court therefore will grant defendant's motion to revise the order to reflect that the complaint was not timely filed.

Also pending, however, is defendant's Motion for Judgment of Affirmance and Opposition to Plaintiff's Motion for Judgment of Reversal [Dkt. # 21]. Since the parties have briefed the merits of plaintiff's SSA claim and the untimely filed complaint does not deprive this Court of subject matter jurisdiction, see Bowen v. City of New York, 476 U.S. 467, 480 (1986), the Court, having considered the parties' submissions and the administrative record, will grant defendant's motion for judgment of affirmance and deny plaintiff's motion for judgment of reversal.


The relevant facts are documented in the Administrative Record ("AR") [Dkt. ## 13-16]. Plaintiff was "presented to the emergency room" at Howard University Hospital on July 7, 2005, "with a right wrist laceration . . . after falling through a glass pane." (AR at 107.) He "was admitted and immediately taken to the operating room with the diagnosis of right wrist laceration with vascular and tendon injuries." (Id.) Plaintiff underwent surgery consisting of "an exploration of the right wrist, primary repair of ulnar artery and ligation of the radial artery," and on July 14, 2005, underwent additional surgery to "repair [] the right forearm flexor tendons, median and ulnar nerve repair. Operative findings were laceration of all the flexor tendons, median and ulnar nerves." (Id. at 108.) Plaintiff was discharged from the hospital on July 16, 2005, with instructions, inter alia, to avoid heavy lifting and straining. (Id. at 146.)

In a medical examination report memorializing plaintiff's visit on July 20, 2005, Dr. A. Thomas indicated that plaintiff has functional limitations ranging from mild to extreme, that he could sit for six hours, stand for two hours, and walk for two hours. He also indicated that plaintiff was limited to lifting or carrying less than ten pounds, but stated that plaintiff "will not be able to use his hand in a functional capacity for 1 year[,]" until July 20, 2006. (AR at 149.) Plaintiff applied for disability insurance on July 28, 2005. (AR 55.) He received occupational therapy between October 4, 2005, and November 17, 2005, and pain medication. (AR 171-81.)

In a medical report following plaintiff's examination on January 17, 2006, Dr. Elliot Aleskow noted that plaintiff reported that "[h]e is unable to hold objects of any kind in his right hand[,] has no grip ability[,]" and takes Percocet for pain, "which he states is immense otherwise." (AR 150.) Dr. Aleskow found that plaintiff "had full range of motion of all extremities without limitation of range of motion whatsoever. [But he] kept his right hand in a clenched position [and] was only able to do mostly minimal activities with the right hand . . . [but] had full range of motion of the right elbow and right shoulder." (Id. 151.) Dr. Aleskow concluded that plaintiff "has significant limitation and use of the right hand [due to] hypothenar and thenar muscle wasting [and] decreased sensory in the hand[,] [specifically] in [his] ability to do fine motor skills with the hand." (Id. 152.) He found that plaintiff could "use his left hand without significant difficulty." (Id. 151.) The tasks plaintiff could not perform with his right hand were opening doors or drawers, dialing a telephone, and writing with a pen or pencil. (Id. 153.) He could pick up a coin from a flat surface with mild difficulty but had moderate to severe difficulty performing such tasks as fastening buttons, turning pages of a book, and opening jars.


In a medical report following plaintiff's examination on October 20, 2006, Dr. Murliya Kusumadharagowad noted that plaintiff's right hand was "fixed in flexed position" and that there were "slight movements of [his] [right] thumb." (AR 158.) Dr. Kusumadharago concluded that plaintiff could not use his right fingers, that his condition prevented him from working, and that it was permanent. (Id. 159.)

Following a hearing on June 8, 2007, at which plaintiff was represented by counsel and testified, the administrative law judge ("ALJ") found that plaintiff had not engaged in substantial gainful activity since July 7, 2005, that plaintiff "has the following severe impairment: traumatic transaction of the right flexor tendons at the wrist," but that plaintiff was not entitled to disability benefits because he did not have a qualifying impairment and he had the residual functional capacity to perform light and sedentary work. (AR 14-15.) The Appeals Council affirmed the ALJ's decision on August 6, 2008, and plaintiff initiated this action on October 29, 2008.



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