MULLIGAN v. SOCIAL SECURITY ADMINISTRATION

Filing 12

ORDER granting 8 Motion to Dismiss. The case shall be marked closed. Signed by Judge Donetta W. Ambrose on 4/2/18. (slh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DAN MULLIGAN,
Plaintiff,
-vsNANCY A. BERRYHILL,1
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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Civil Action No. 17-1053

AMBROSE, Senior District Judge

MEMORANDUM OPINION
Plaintiff brought this action for review of the final decision of the Commissioner of Social
Security denying his application for supplemental security income pursuant to the Social
Security Act. (ECF No. 4). Plaintiff’s application was denied by an Administrative Law Judge on
December 23, 2015. (ECF No. 9-1, pp. 22-29). Plaintiff filed a Request for Review with the
Appeals Council. Id. at p. 33. On April 26, 2017, the Appeals Council denied the request for
review. Id. at pp. 36-41. Plaintiff filed the instant action on August 11, 2017. (ECF No. 1).
Pending before the court is Defendant’s Motion to Dismiss Plaintiff’s Complaint as
untimely. (ECF No. 4). Section 405(g) of the Act explains the time frame for filing a civil action
as follows:
Any individual, after any final decision of the Commissioner 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 days after the
mailing to him of notice of such decision or within such further time as the
Commissioner may allow.
Additionally, the notice of denial advises the individual that the Appeals Council assumes the
letter of denial will be received within 5 days after the date the denial was issued. (ECF No. 9-1,
p. 37). It also advises the individual that he/she may ask the Appeals Council, in writing, to

1

Nancy A. Berryhill became acting Commissioner of Social Security on January 23, 2017, replacing
Carolyn W. Colvin.

extend the time to file an appeal. Id. at p. 38.
In this case, the final decision was issued and mailed on April 26, 2017. (ECF No. 9-1,
pp. 36-41). Allowing five additional days for mailing, a civil action must have been filed no later
than June 30, 2017. There is no indication that Plaintiff filed a request to extend the time. The
instant action was not filed until August 11, 2017. (ECF No. 1). Thus, there is no question that
the Complaint is untimely.
A statute of limitations period may be equitably tolled, however, “’(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, 168–70 (3d Cir. 2012), quoting, Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir.1994).

None of these circumstances

appear to exist in the record. In Response to the Motion to Dismiss, pro se Plaintiff merely
states that he opposes the motion. (ECF No. 11).

As such, I find that the doctrine of equitable

tolling does not apply. Consequently, I find that Plaintiff’s Complaint is untimely and dismissal of
the case is warranted.
An appropriate order shall follow.

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DAN MULLIGAN,

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Plaintiff,
-vsNANCY A. BERRYHILL,2
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Civil Action No. 17-1053

AMBROSE, Senior District Judge

ORDER OF COURT
THEREFORE, this 2nd day of April, 2018, it is ordered that Defendant’s Motion to
Dismiss Plaintiff’s Complaint (ECF No. 8) is granted and Plaintiff’s Complaint is hereby
dismissed with prejudice. The case shall be marked closed.

BY THE COURT:
s/ Donetta W. Ambrose
Donetta W. Ambrose
United States Senior District Judge

2

Nancy A. Berryhill became acting Commissioner of Social Security on January 23, 2017, replacing
Carolyn W. Colvin.

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