ROWE v. COLVIN

Filing 9

MEMORANDUM OPINION. SIGNED BY HONORABLE NITZA I QUINONES ALEJANDRO ON 4/17/2015. 4/17/2015 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(amas)

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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CAESAR ROWE
Plaintiff, Pro Se

CIVIL ACTION

N0.14-7018

v.
CAROLYN W. COLVIN,
Acting Commissioner of
Soclal Security Administration
Defendant
NITZA I. QUINONES ALEJANDRO, J.

J

APRIL 17, 2015

MEMORANDUM OPINION

IN RODUCTION

Before this Court is a motion to dismiss filed by the United States Department of Justice
on lehalf of the Acting Commissioner of Social Security Administration ("Commissioner"), 1
see "ng to dismiss the complaint filed by Caesar Rowe ("Plaintiff') which appeals the final
den11 of his application for Disability Insurance Benefits ("DIB") and Supplemental Security
IncoLe ("SSI") under Titles II and XVI, respectively, of the Social Security Act ("Act"), 42

U.s.f. §405(g). [ECF 8].2 Plaintiff, acting prose, has not filed a response to the motion. This
motion is ripe for disposition and for the reasons set forth herein, the Government's motion is
granrd and Plaintiff's complaint is dismissed.
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Thei Government does not cite to a particular Federal Rule of Civil Procedure ("Rule") under which this
motion is brought. However, the movant argues that the complaint was not timely filed and is barred by
the a~plicable statute of limitations. Thus, the motion appears to have been filed under Rule 12(b)( 6). See
Schm idt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (a limitations defense to be raised by a motion under
Rule [12(b)(6) is permitted "only if 'the time alleged in the statement of a claim shows that the cause of
action has not been brought within the statute of limitations."') (quoting Hanna v. US. Veterans' Admin.
Hosp], 514 F.2d 1092, 1094 (3d Cir. 1975)). This Court will construe this motion as one filed pursuant to
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Rule [2(b)(6).
2
In srpport of the motion to dismiss, the Government attached the Declaration of Kathie Hartt, Court
Case Preparation and Review Branch 2 of the Office of Disability Adjudication and Review ("Hartt
Decl.p. [ECF 8-1].
1

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BAJCKGROUND
The facts relevant to this motion to dismiss are summarized as follows:
On April 26, 2013, an Administrative Law Judge ("ALJ") denied
Plaintiffs application for social security benefits. Plaintiff appealed this decision
to the Appeals Council. By letter/notice dated October 3, 2014, the Appeals
Council issued a final denial notice to Plaintiff. (Hartt Deel., Exh. 2). This denial
notice was sent to Plaintiffs 5621 Boyer Street, Philadelphia, Pennsylvania
19138, address. 3 (Id.). The notice also included instructions on how to institute a
civil action for judicial review of the final decision, and informed Plaintiff of his
right to commence a civil action within 60 days from the date of receipt of the
notice. (Id.). The notice further indicated that the Appeals Council would presume
that Plaintiff received the notice letter five days after the date of the notice. (Id.).
On December 10, 2014, Plaintiff filed a motion for leave to proceed in
forma pauperis, which had attached to it his complaint. [ECF l]. Plaintiffs
complaint was purportedly signed and dated on December 9, 2014.
DISCUSSION
Congress has prescribed the procedures and conditions for judicial review of final
decisions made by the Commissioner of Social Security Administration in 42 U.S.C. §405(g).
spedifically, this section provides that:
Any individual, after any final decision of the Commissioner of Social Security
made after a hearing to which he was a party ... may obtain a review of such
decision by a civil action commenced within sixty days after the mailing to him of
notice of such decision or within such further time as the Commissioner of Social
Security may allow.
42 u.s.c. §504(g).
By regulation, the Commissioner has determined that the commencement of the 60-day
perior is the date of receipt of the Appeals Council's final denial letter or within the time period
alloled by the Commissioner. See 20 C.F.R. §422.210(c). The notice of the final decision is
pres\ed to have been received by the claimant five days after the date of the notice. Id.; see
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This\ is the same address identified by Plaintiff in his complaint. [ECF 1-1].
2

alsr Appeal Council's letter dated October 3, 2014. [ECF 8-1]. Pertinently, the regulation

pmvides:
Any civil action described in paragraph (a) of this section must be instituted
within 60 days after ... notice of the decision by the Appeals Council is received
by the individual . . . except that this time may be extended by the Appeals
Council upon a showing of good cause. For purposes of the section, the date of
receipt of ... the decision by the Appeals Council shall be presumed to be 5 days
after the date of such notice, unless there is a reasonable showing to the contrary.
20 CC.F.R. §422.210(c).
The 60-day time limit is a statute of limitations and because it constitutes a condition on
the raiver of sovereign immunity, its application must be "strictly construed." Bowen v. City of
New York, 476 U.S. 467, 479 (1986). However, under certain circumstances, the 60-day period

of llitation may be tolled, as provided for in §405(g). See id. at 480 ("Congress has authorized

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the Secretary to toll the 60-day limit, thus expressing its clear intention to allow tolling in some
easel."). Pursuant to the regulations, the 60-day time period to commence a civil action will only
be jrended upon a showing of good cause by the complainant. See 20 C.F.R. §422.210(c).
Generally, it is the Commissioner who determines whether to extend the 60-day period; courts
shojld extend that period only in cases "where the equities in favor of tolling the limitations
perild are 'so great that deference to the agency's judgment is inappropriate."' Bowen, 476 U.S.
at 4Jo (quoting Mathews v. Eldridge, 424 U.S. 319, 330 (1976)).
Here, the Appeals Council's decision notice was dated October 3, 2014. Consistent with
the letter and a fair reading of the statute and the regulations cited above, Plaintiff had a total of
65 dlys from the date of the Appeals Council's decision notice in which to commence a civil
actioh. Plaintiff is presumed to have received the final denial notice five days after its mailing, at

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the latest on October 8, 2014. Therefore, Plaintiff had until Monday, December 8, 2014,4 to file a
complaint challenging the denial of benefits and he failed to do so. See 42 U.S.C. §405(g).

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Plaintiff filed the complaint on December 10, 2014, two days late.
Plaintiff did not respond to this motion to dismiss, nor has he shown any cause or equity
in favor of tolling the statute oflimitations period. Under the circumstances, Plaintiffs complaint
is dLmed untimely filed. Therefore, Defendant's motion to dismiss is granted.

colcLUSION
For the reasons stated herein, the motion to dismiss is granted and Plaintiffs complaint is

clilssed. ~ appropriate Order, consistent with this Memorandum Opinion, follows.

NITZA I. QUINONES ALEJANDRO, U.S.D.C., J.

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WhJn calculating the time period, the 65th day fell on Sunday, December 7, 2014. Pursuant to Rule
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6(a), the due date was extended to Monday.

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