Paul E. LOUIS Sr., Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee, 349 F. App'x 576

SUMMARY ORDER Plaintiff-appellant Paul Louis was granted disability insurance benefits by defendant-appellee Commissioner of Social Security, in a fully favorable decision issued by the Appeals Council on May 13, 2005, that found that plaintiff had been disabled since his claimed onset date of May 1, 1981. The Appeals Council mailed notice to plaintiff advising him that if he disagreed with the decision, he could seek judicial review within sixty days of receiving the notice, and that receipt would be presumed within five days of mailing.

The Appeals Council also advised plaintiff that if he could not seek review within the sixty days, he could request a time extension for filing. Plaintiff did not timely seek review or extension, but rather faxed a letter to the Appeals Council on December 4, 2006 (almost nineteen months after plaintiff received the Appeals Council notice). The Appeals Council construed plaintiffs letter as a request for reopening and declined to reopen his case because his request fell outside of the sixty-day window.

On December 24, 2006, plaintiff submitted a second request for reopening which the Appeals Council denied on May 12, 2007. On May 25, 2007, plaintiff filed a complaint seeking reopening of his benefits claim in the District Court and, on April 10, 2008, the Magistrate Judge issued a Report and Recommendation (R &

R) recommending that the District Court grant defendant’s motion to dismiss plaintiffs complaint. Plaintiff filed timely objections to the R & R, which the Magistrate Judge rejected in an April 23, 2008 order that also granted defendant’s motion to dismiss. Plaintiff timely filed this appeal. We assume the parties’ familiarity with the remaining underlying facts, the procedural history, and the issues on appeal.

Plaintiff argues that (1) the statute of limitations for reopening the Appeals Council’s decision should be equitably tolled because there was a misunderstanding with his attorney as to the onset date of his disability, and (2) even though the District Court determined that it lacked jurisdiction to review defendant’s decisions^ — inasmuch as they are not “final decisions” — to deny reopening of plaintiffs claims, plaintiffs claim warrants review because he was denied due process under the Fifth Amendment. For the reasons stated in its order of April 23, 2008, Louis v. Comm’r of Soc.

Sec., No. 6:07 cv 0557, 2008 WL 1882706 (N.D.N.Y. Apr.24, 2008), we agree with the District Court that it lacked jurisdiction to review defendant’s decisions. We have considered plaintiffs remaining claims and find them to be without merit. CONCLUSION Accordingly, we AFFIRM the judgment of the District Court.