BOSWELL v. SOCIAL SECURITY ADMINISTRATION

Filing 11

ORDER granting 7 Motion to Dismiss. Signed by Judge Donetta W. Ambrose on 2/18/16. (ask)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TWILA J. BOSWELL

)
)

No. 15-858

v.
CAROLYN W. COLVIN
MEMORANDUM ORDER
Plaintiff filed an application for benefits, based on allegations of physical and mental
impairments. Plaintiff’s claim was denied initially and upon hearing before an administrative
law judge (“ALJ”). The Appeals Council denied her request for review, and this appeal
followed. Before the Court is Defendant’s Motion to Dismiss Plaintiff’s pro se Complaint as
untimely.
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is an
appropriate vehicle for challenging the timeliness of a social security appeal. Raffinee v. Comm'r
of Soc. Sec., 367 F. App'x 379, 380 (3d Cir. 2010). Dismissal is appropriate when, accepting all
of the facts alleged in the complaint as true, the plaintiff has failed to plead "enough facts to state
a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570,
127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). The facts alleged must be sufficient to "raise a right
to relief above the speculative level." Id. at 555. All factual allegations must be read in the light
most favorable to the non-moving party. Tuno v. NWC Warranty Corp., 552 Fed. Appx. 140 (3d
Cir. 2014). Further, pro se pleadings must be liberally construed. Erickson v. Pardus, 551 U.S.
89, 94, 127 S. Ct. 2197, 167 L. Ed. 2d 1081 (2007). I have considered the parties’ submissions
according to these standards.
A complaint seeking judicial review of an administrative decision denying social security
benefits must be filed within sixty days after the mailing to claimant of notice of the decision. 42
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U.S.C. § 405(g). This sixty-day time limit constitutes a limitations period, and must be strictly
construed. Whiteley v. Colvin, 2015 U.S. Dist. LEXIS 56045, at *7 (M.D. Pa. Mar. 12, 2015).
In this case, the Appeals Council mailed its denial notice to Plaintiff on February 25, 2015. The
notice informed Plaintiff of her right to commence an action within sixty days from the date of
receipt of the notice. Plaintiff initiated this action on July 1, 2015, many months after the filing
deadline expired. Plaintiff acknowledges that the deadline had passed at the time that she
commenced her appeal, and that she never sought an extension of time.
Therefore, I look to whether the sixty-day period should be tolled. Equitable tolling is an
extraordinary remedy, and must be applied sparingly. Id.; Santos v. United States, 559 F.3d 189,
197 (3d Cir. 2009). Equitable tolling may apply "(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." Kramer v. Comm'r of Soc.
Sec., 461 F. App'x 167, 169 (3d Cir. 2012).

Plaintiff does not aver that the Government in any

way prevented her from complying with the filing deadline, or that she timely but mistakenly
asserted her rights elsewhere; accordingly, I must consider whether she was, in some
extraordinary way, prevented from asserting her rights.
Plaintiff explains that she did not understand the legal terminology, and asked a friend for
help. Her friend did not return her paperwork for over two months, on June 29, 2015, at which
time the deadline had expired. Accordingly, within a matter of days, Plaintiff called the local
clerk’s office and asked for assistance regarding filing, and then went to the office to submit her
pleadings. Accepting as true the facts alleged by Plaintiff, those facts simply do not constitute
the type of very unusual or shocking circumstances required in order for the uncommon remedy

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of tolling to apply. Moreover, Plaintiff’s assertion that she has been diagnosed with bi-polar
depression, anxiety, and confusion “at times,” and has issues with reading and comprehension
“at times,” cannot alter this conclusion, as mental illness is a basis for tolling only under
exceptional circumstances of the type not present here. See Kach v. Hose, 589 F.3d 626, 645 (3d
Cir. 2009).

I note that immediately after the return of her paperwork, Plaintiff was able to seek

out and accomplish the means to file this appeal, and to submit to the Court an extremely
coherent and articulate statement on her own behalf.
In sum, I empathize with Plaintiff’s plight, but I am bound by applicable legal standards
to dismiss her Complaint as untimely.
AND NOW, this 18th day of February, 2016, IT IS SO ORDERED.
BY THE COURT:
/s/Donetta W. Ambrose
________________________________
Donetta W. Ambrose
Senior Judge, U.S. District Court

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