TRUCKLEY v. ASTRUE

Filing 14

ORDER granting 8 Defendant's Motion to Dismiss Plaintiff's Complaint. Signed by Judge Alan N. Bloch on 5/22/2013. (kmw)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

BOBBIE J. TRUCKLEY,

)
)
)
)
)
)
)

Plaintiff,
vs.
MICHAEL J. ASTRUE,

Civil Action No. 12-846

)

Defendant.

)

o

R D E R

AND NOW, this 22nd day of May, 2013, upon consideration of
Defendant's Motion to Dismiss Plaintiff's Complaint (document No.8)
and Brief in Support thereof

(document No.9)

filed in the above

captioned matter on November 6, 2012, and upon further consideration
of Plaintiff/s Response thereto (document No. 12) filed on November
27, 2012,
IT

IS

HEREBY ORDERED

that

said Motion

to Dismiss

the

finds

is

GRANTED.
Upon

review

of

the

record,

Court

that

Plaintiff's complaint is time-barred by the Social Security Act's
sixty-day statute of limitations.

Under the regulations, Plaintiff

was required to commence a civil action within sixty days after she
received the Appeals Council's letter denying her request to review

1

the Administrative Law Judge's decision. 1
see also 20 C. F .R.

§

422.210 (c).

See 42 U.S.C.

Plaintiff

405(g)i

§

is presumed to have

received the Appeals Councilts notice of denial within five days of
the date of the notice t unless there is a reasonable showing to the
contrary.

See 20 C.F.R.

§

422.210(c)

see also Appeals Councilts

i

Notice of Denial (document No. 9-1 at 25) .
The
Plaintiff t s

record

shows

that

the

Appeals

request for review on March 19,

Council

2012 t

denied

and that the

notice of denial was mailed to Plaintiffts address at 126 Boyd Road,
Kittanning,

PA 16201.

(See

document

No.

9-1

at

3).

The

notice

informed Plaintiff of the sixty-day appeal period and advised that
she may seek an extension of time from the Appeals Council upon
(See document No. 9-1

written request and a showing of good cause.

Since the Appeals Councilts letter was dated March 19

at 25).

t

2012, Plaintiff was presumed to have received the denial notice by
March 24

t

2012.

Plaintiff thus was required to file the complaint

on or before May 23,

142 U.S.C.

§

2012.

See 20 C.F.R.

§

422.210(C)i

see also

405(g} specifically provides that:

Any individual t after any final decision of the
Commissioner of Social Security made after a hearing to
which he was a party, irrespective of the amount in
controversy, may obtain a review of such decision by a
civil action commenced within sixty~ays 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.

§

405(g)

(emphasis added).
2

Raffinee v. Comm1r of Soc. Sec.,
Cir.2010).

Plaintiff

however

l

1

367 Fed. Appx.

379,

380 n.1

did not file the complaint until

June 221 2012 1 one month after the limitations period expired.
Complaint (document No. 1 1).

(3d

See

There is no evidence that Plaintiff

requested an extension of time from the Appeals Council to file her
complaint.

See Jones Declaration (document No. 9-1 at 3}.2
"The sixty day appeal period is a statute of limitations

and is not jurisdictional. 1I

Kramer v. Comm'r of Soc. Sec.

I

461 Fed.

Appx. 167 1 169 (3d Cir. 2012). If the complaint is not filed within
the sixty-day appeal period

l

the action is barred by the statute of

limitations and must be dismissed as untimelYI

unless the Court

finds a basis to apply the doctrine of equitable tolling. See id. at
169.

Equitable tolling, however, is "to be applied sparingly.1I

at 169
1011

(quoting National R.R. Passenger Corp. v. Morgan,

113

(2002)).

Id.

536 U.S.

As the United States Court of Appeals for the

Third Circuit explained:
Where, as here the plaintiff has missed the
deadline for filing, there are three principal bases for
applying the doctrine of equitable tolling: (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.
l

2 The record indicates that Plaintiff mailed the civil complaint
on June 19, 2012, and that it was received by the Clerk's Office
on June 22, 2012.
3

Kramer, 461 Fed. Appx. at 169-70 {quoting Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir.1994))
(internal quotations omitted) .
The Court finds no justification for equitable tolling in
this case as Plaintiff has failed to offer any explanation for why
she failed to file the complaint by May 23, 2012.
to

Defendant's

motion,

Plaintiff

states

only

In her response
that

the

Social

Security office had to resend her "a few papers" that she did not
receive due to the fact that she moved in August of 2012.
No.

12).

The

Appeals

Council's

letter,

however,

(Document

was

sent

to

Plaintiff on March 19, 2012, approximately five months prior to her
move.

Plaintiff

does

not

specifically

allege

that

she

never

received the Appeals Council's letter, and, based on the evidence of
record, the Court cannot conclude that Plaintiff never received the
notice

of

denial.

In

this

Court's

estimation,

the

fact

Plaintiff ultimately filed a complaint, albeit untimely,
suggests that she did receive

the notice of denial.

therefore has not shown good cause for her failure
complaint

wi thin

the

sixty-day appeal

period.

that

strongly
Plaintiff

to file the

Accordingly,

Defendant's Motion to Dismiss Plaintiff's Complaint is granted.
s/Alan N. Bloch
United States District Judge

4

the

ecf:

Counsel of record

cc:

Bobbie J. Truckley
821 Deanville Road
New Bethlehem, PA 16242
(forwarded certified mail, return receipt requestedi
and regular first class mail)

5