OpenJurist

79 F3d 1148 Norling v. Commissioner of Social Security

79 F.3d 1148

Randy L. NORLING, Plaintiff-Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.

No. 95-1789.

United States Court of Appeals, Sixth Circuit.

March 13, 1996.

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

1

Before: MARTIN and BATCHELDER, Circuit Judges, and OLIVER, District Judge.*

ORDER

2

Randy L. Norling, through counsel, appeals a district court judgment dismissing his complaint for lack of subject matter jurisdiction pursuant to 42 U.S.C. §§ 205(g) and 405(g). The parties have expressly waived oral argument, and this panel unanimously agrees that oral argument is not needed in this case. Fed.R.App.P. 34(a).

3

The plaintiff filed for social security disability insurance benefits on November 12, 1992, alleging disability due to allergies, asthma, shortness of breath and chest pains. The claim was denied initially and upon reconsideration. After a hearing, an Administrative Law Judge (ALJ) issued a decision denying the application for benefits. The Appeals Council denied Norling's request for review as untimely.

4

Norling then filed a complaint in federal district court. A magistrate judge concluded that the Secretary's dismissal of Norling's appeal as untimely was not a "final decision" entitling Norling to judicial review pursuant to 42 U.S.C. §§ 205(g) and 405(g). The magistrate judge's report was mailed to Norling on January 19, 1995. Norling did not file objections to this report until February 22, 1995. The district court adopted this report, dismissing the case on June 14, 1995. On appeal, Norling reasserts the same grounds that he asserted before the district court.

5

A party who does not file timely objections to a magistrate judge's report and recommendation, after being advised to do so, waives his right to appeal pursuant to United States v. Walters, 638 F.2d 947, 949-50 (6th Cir.1981). See Thomas v. Arn, 474 U.S. 140, 155 (1985); Willis v. Sullivan, 931 F.2d 390, 400-01 (6th Cir.1991). In this case, the magistrate judge notified Norling that he must file objections to his report within ten days. Norling filed his objections well beyond the ten-day limit and, thus, has waived his right to further judicial review of the relevant claims. Moreover, Norling has not presented exceptional circumstances warranting an exception to this rule in the interest of justice. Thomas, 474 U.S. at 155 & n. 15.

6

Accordingly, the district court's judgment is affirmed.

*

The Honorable Solomon Oliver, United States District Judge for the Northern District of Ohio, sitting by designation