KRAMER v. COMMISSIONER OF SOCIAL SECURITY et al
Filing
14
MEMORANDUM OPINION re: 6 MOTION to Dismiss 3 Complaint filed by COMMISSIONER OF SOCIAL SECURITY. Signed by Judge William L. Standish on 10/27/2011. (md)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ROLAND STEVEN KRAMER, SR.,
Plaintiff,
vs.
Civil Action No. 11-699
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION
Pending before the Court is Defendant's motion to dismiss this
matter in its entirety.
(Doc. No.6.)
For the reasons discussed
below, the motion is granted.
I.
BACKGROUND
On May 25, 2011, acting pro se,
aintiff Roland Steven Kramer,
Sr., filed a motion to proceed in forma pauperis.
granted and his complaint against
was duly
The motion was
Commissioner of Social Security
led the same day.l
On August 8, 2011, the Commissioner filed a motion to dismiss
the complaint,
based on the fact
that Mr.
Kramer had failed to
initiate a civil action in a timely manner after his applications
for disability insurance benefits and supplemental security income
The Court has jurisdiction over this matter by virtue of 42 U.S.C. §
1383(c) (3) (incorporating 42 U.S.C. § 405(g)) which provides that an
individual may obtain jUdicial review of any final decision of the
Commissioner by br inging a civil action in the district court of the Uni ted
States for the judicial district in which the plaintiff resides.
1
benefits had been denied by the Social Security Appeals Council.
Specifically, Defendant argued that Mr. Kramer had been informed by
the Appeals Council of the denials by letter dated March 2, 2011,
but had not filed suit until May 25, 2011, some 19 days after the
statutory period in which to file
Moreover,
the
Commissioner
such an appeal had elapsed.
argued,
this
case
presented
2
no
rcumstances which would justify equitable tolling of the 60-day
filing requirement.
Mr. Kramer was directed on August 16, 2011, to file a brief in
opposition to the motion to dismiss no later than September 2.
No.9. )
When that deadline passed without a response,
(Doc.
the Court
issued another order, in light of his pro se status, giving Mr. Kramer
a second opportunity to submit a brief by September 23, 2011.
the same order, Plaintiff was admonished that
In
ilure to do so would
(Doc. No. 10.)
result in dismissal of his case.
On September 26, 2011, Plaintiff filed a motion for extension
of the period in which to respond, advising the Court that he had
been hospitalized for more than two months and was, at the time, in
a nursing home.
His "legal representative advisor," Vickie Lynn
For purposes of computing the last date on which an appeal must be filed
in federal court, Social Security regulations further provide that "the
date of receipt of notice of denial . . . shall be presumed to be 5 days
after the date of such notice, unless there is a reasonable showing to the
contrary." 20 C.F.R. § 422.210(c). Therefore, an appeal must be filed on
or before the 65 th day following the date of the denial letter.
2
Nagle, had not been made aware of these circumstances and therefore
had not taken any action.
3
Based on these assertions, the Court
extended the period in which he was to file his response until October
18, 2011.
(Doc. No. 12.)
In Mr. Kramer's response, he states that he had taken all the
necessary steps to advise the Social Secu
change in the mailing address he had
ty Administration of a
ously provided.
In fact,
Ms. Nagle, on his behalf, had taken the ini tiati ve to call the Social
Security Administration and inform it of his change of address as
well as her own.
(Plaintiff's Brief in Opposition to Defendant's
Motion to Dismiss, Doc. No. 13, "Plf.'s Brief," at 1.)
By the time
the denial letter was received at Mr. Kramer's new address, however,
he was hospitalized in a coma.
Only after Plaintiff's daughter
located Ms. Nagle and gave her a copy of the notice was the civil
action filed in this Court.
(Id. at 1
.)
Thus, Plaintiff argues,
he has established good cause why his suit was not filed within the
60-day period and should be allowed to proceed.
II.
DISCUSSION
The question of whether or not a plaintiff has timely filed his
appeal from an adverse decision by the Social Security Administration
is a question of subject matter jurisdiction.
Garcia v. Comm'r of
Ms. Nagle is described elsewhere as a "non-attorney representati ve n who
appeared wi th Mr. Kramer at the hearing before the Administrati ve Law Judge
on May 6, 2010.
(See Def.'s Brief, Jones Decl., Exh. 1 at 4.)
3
3
Soc. Sec., No. 02-1959, 2002 U.S. App. LEXIS 25415, * 3 (3d Cir. Nov.
6, 2002).
The Court has reviewed a declaration of James Jones 4 and
the attachments thereto, submitted in support of the Defendant's
brief.
The evidence shows that the notice of an unfavorable decision
by the Administrative Law Judge was sent to a post office box number
in Carnegie, Pennsylvania, on June 24, 2010, with a copy to Ms. Nagle
at the same address.
to Dismiss
(Defendant's Brief in Support of his Motion
Plaintiff's Complaint,
Doc.
Declaration of James Jones, "Jones Decl. ,
II
No.7,
"Def.'s Brief,"
Exh. 1.)
Mr. Kramer does
not contend that he failed to receive this notice and, in
ct, we
may safely assume he did because he filed a request for review with
the Social Security Administration Appeals Council, apparently in
a timely manner.
The March 2, 2011 notice from the Appeals Council denying his
for review is also attached to the motion to dismiss.
It
was mailed to Mr. Kramer at the same post office box in Carnegie,
with a copy to Ms. Nagle at a street address on Washington Road in
ttsburgh, Pennsylvania.
(Jones Decl., Exh. 2.)
This is the same
address Plaintiff identifies in his brief in opposition to the motion
as Ms. Nagle's new address.
Thus, it appears Plaintiff's assertion
in his brief that Ms. Nagle's copy of the denial letter was also
Mr. Jones is the Chief of Court Case Preparation and Review Branch 2
of the Office of Appellate Operations, Office of Disability Adjudication
and Review for the Social Securi ty Administration. His declaration is made
under penalty of perjury,
4
misaddressed is incorrect.
Ms.
Nagle's
signature
appears
on
Plaintiff's
brief
in
opposition, but she does not provide an affidavit or indicate in any
other way that she did not receive the notice from the Appeals Council
in a timely manner.
Mr.
Kramer and Ms. Nagle do not provide the
date (s) on which they eventually received the notice.
Furthermore,
the denial notice explicitly advised the recipients, "If you cannot
file for court review wi thin 60 days, you may ask the Appeals Council
to extend your time to file."
There is no evidence that Plaintiff
or Ms. Nagle advised the Social Security Administration that receipt
of the notice had been delayed or requested such an extension.
As
judicial
Defendant
review
points
of
out
final
in
his
decisions
brief,
by
the
the
procedures
Social
for
Security
Administration require a claimant who has been denied benefits to
file suit in the appropriate federal court "within sixty days after
the mailing to him of notice of such decision or within such further
time as the Commissioner may allow."
42 U.S.C.
§
405(g).
The
Commissioner is authorized to extend this period for good cause
shown, as are the federal courts.
However, in the latter case, the
court should generally defer to the agency's judgment as to whether
such good cause has been established.
(Def.'s Brief at 4-5.)
The Uni ted States Supreme Court has acknowledged that the 60-day
appeals period provision constitutes a statute of limitations.
5
See
Bowen v. City of New York, 476 U.S. 467, 478 (1986).
In addition,
the United States Court of Appeals for the Third Circui t has applied
the
general
rules
regarding
equitable
tolling
of
a
limitations in the context of a Social Security appeal.
statute
of
See Cardyn
v. Comm'r of Soc. Sec., No. 02-4147, 2003 U.S. App. LEXIS 9653, *8
(3d Cir. May 20, 2003).
Sedran
&
Berman,
38
As summarized in Oshiver v. Levin, Fishbein,
F.3d 1380,
1387
(3d Cir.
1994),
the "three
principal situations in which equitable tolling may be appropriate
[are]: "(1) where the defendant has actively misled the plaintiff
respecting the plaintiff's cause of action;
(2) where the plaintiff
in some extraordinary way has been prevented from asserting his or
her rights; or (3) where the plaintiff has timely asserted his or
her
rights
mistakenly
in
the
wrong
forum."
Cardyn,
id.
The
plaintiff bears the burden of convincing the court that one of these
Id., citing Courtney v. La Salle Univ.,
three exceptions applies.
124 F.3d 499,
505
(3d Cir. 1997).
Plaintiff does
not
argue
that
the
first
and third Oshi ver
situations are applicable, and he has failed to rebut the presumption
of timely receipt of the notice, i.e., that he was prevented from
asserting his rights "in some extraordinary way."
U.S. App. LEXIS 25415 at *7
See Garcia, 2002
(affirming district court's dismissal
of plaintiff's untimely filed complaint where plaintiff had not
rebutted the presumption that he had received the Appeals Council's
6
notice of denial within five days after it was dated and mailed.)
Because Plaintiff's complaint was not filed within the required
pe
od and because he has failed to persuade the Court that this is
one of the rare occasions in which equitable tolling should be
applied, this Court does not have subject matter jurisdiction over
his appeal and Defendant's motion to dismiss is therefore granted.
An appropriate Order follows.
William L. Standish
United States District Judge
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