Ronald Kramer, Sr. v. Commissioner Social Security , 461 F. App'x 167 ( 2012 )


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  • BLD-094                                                        NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ____________
    No. 11-4372
    ____________
    RONALD STEVEN KRAMER, SR.,
    Appellant
    v.
    COMMISSIONER OF SOCIAL SECURITY
    __________________________________
    On Appeal from the United States District Court
    for the Western District of Pennsylvania
    (D.C. Civ. No. 11-cv-00699)
    District Judge: William L. Standish
    __________________________________
    Submitted for Possible or Summary Action
    Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
    January 20, 2012
    Before: SCIRICA, SMITH and CHAGARES, Circuit Judges
    (Filed: February 08, 2012)
    ____________
    OPINION OF THE COURT
    ____________
    PER CURIAM.
    Appellant Ronald Kramer appeals from an order of the District Court dismissing
    his complaint. For the following reasons, we will summarily affirm.
    1
    Kramer applied in 2008 for social security disability benefits and supplemental
    security income under Titles II and XVI of the Social Security Act, claiming a disability
    since 1990. His claim was denied and he requested a hearing. That hearing took place
    on May 6, 2010 in Pittsburgh, Pennsylvania, and Kramer appeared and testified at the
    hearing. He was represented by Vickie L. Nagle, a non-attorney representative.
    Following the hearing, the Administrative Law Judge determined that, although Kramer
    had a seizure disorder which was severe, it was controlled by his medication. When his
    seizures were not under good control, it usually was because he was not taking his
    medication and/or he was drinking alcohol. The ALJ denied the claim on June 24, 2010,
    concluding that Kramer was not disabled within the meaning of the Social Security Act.
    The ALJ’s decision was mailed to Kramer and Nagle at P.O. Box 814 in Carnegie,
    Pennsylvania 15106. Kramer then filed an apparently timely request for review with the
    Social Security Administration Appeals Council. On March 2, 2011, the Appeals
    Council denied Kramer’s request for review. Notice of the Appeals Council’s action was
    mailed to Kramer at the same post office box in Carnegie, with a copy to Nagle at her
    new address on Washington Road in Pittsburgh, Pennsylvania.
    On May 25, 2011, Kramer submitted a motion to proceed in forma pauperis and a
    pro se civil complaint against the Commissioner of Social Security. The motion was
    granted and the complaint was filed in the United States District Court for the Western
    District of Pennsylvania on that same day. The Commissioner filed a motion to dismiss
    the complaint as untimely filed, Fed. R. Civ. Pro. 12(b)(6), based on the fact that Kramer
    failed to file suit within the time required by 42 U.S.C. § 405(g) (60 days). The
    2
    Commissioner argued that Kramer had been informed that his appeal was denied by letter
    dated March 2, 2011, but he did not file suit until May 25, 2011, some 19 days after the
    deadline. Moreover, the case presented no circumstances which would justify tolling of
    the 60–day deadline.
    Kramer responded in opposition to the Commissioner’s motion to dismiss, arguing
    that he could show good cause why his suit was not filed within the 60–day period.
    Kramer stated that he had taken the necessary steps to advise the Social Security
    Administration of a change in his mailing address, and that Nagle also had informed the
    Social Security Administration of his change of address, and her own. Kramer further
    stated that, by the time the Appeals Council’s letter was received at his new address, he
    was hospitalized in a coma. Only after his daughter gave Nagle a copy of the letter was
    the civil action filed. Nagle’s signature appears on Kramer’s response in opposition to
    the Commissioner’s motion to dismiss.
    In an order entered on October 27, 2011, the District Court granted the
    Commissioner’s motion and dismissed Kramer’s complaint. The court correctly
    determined that the civil action had not been filed within 60 days, and the court was not
    persuaded that the doctrine of equitable tolling should apply. The court noted that it had
    the authority to extend the period for filing the complaint, see Bowen v. City of New
    York, 
    476 U.S. 467
    , 480 (1986), but neither Kramer nor Nagle had provided the date(s)
    on which they eventually received the Appeals Council’s decision. Moreover, the denial
    notice explicitly advised the recipients, “If you cannot file for court review within 60
    days, you may ask the Appeals Council to extend your time to file.” Neither individual
    3
    advised the Social Security Administration that receipt of the notice of decision had been
    delayed and neither requested an extension.
    Kramer appeals. We have jurisdiction under 28 U.S.C. § 1291. Our Clerk advised
    the parties that we might act summarily under Third Cir. LAR 27.4 and I.O.P. 10.6 to
    dispose of the appeal. Under Third Circuit LAR 27.4 and I.O.P. 10.6, we may summarily
    dispose of an appeal when it clearly appears that no substantial question is presented by
    the appeal. Our review of the District Court’s application of section 405(g)’s time limit
    and the principles of equitable tolling is plenary. Beauty Time, Inc. v. Vu Skin Systems,
    Inc., 
    118 F.3d 140
    , 143 (3d Cir. 1997). Kramer was invited to submit argument in
    writing, and he has submitted a summary action response.
    We will summarily affirm because no substantial question is presented by this
    appeal. “Any individual, 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 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. § 405(g). The 60-day appeal
    period constitutes a statute of limitations that is not jurisdictional. See 
    Bowen, 476 U.S. at 478
    . 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
    4
    forum.” Oshiver v. Levin, Fishbein, Sedran & Berman, 
    38 F.3d 1380
    , 1387 (3d Cir.
    1994).
    We find no justification for equitable tolling in the record, for the reasons given by
    the District Court. First, we are mindful of the Supreme Court’s admonition that
    equitable tolling is “to be applied sparingly.” National R.R. Passenger Corp. v. Morgan,
    
    536 U.S. 101
    , 113 (2002). See also Seitzinger v. Reading Hospital and Med. Ctr., 
    165 F.3d 236
    , 240 (3d Cir. 1999) (doctrine approached “warily, so as to guard against
    possible misuse”). Second, none of the arguments raised by Kramer in his summary
    action response undermines the District Court’s decision. He states that his post office
    box expired on March 11, 2010; his mail remained at the Upper St Clair Post Office for
    the next six months; Nagle’s Washington Road address expired with no forwarding
    address; and he was hospitalized on several occasions, most recently in August, 2011,
    when he had a “near death experience.” These assertions do not address the date when
    Kramer actually received the Appeals Council’s notice of decision, nor do they
    adequately and specifically explain why he was able to file his civil action by May 25,
    2011, but not by the due date of May 6, 2011.1 Accordingly, the District Court did not
    err in finding no good cause for applying the doctrine of equitable tolling, and in
    dismissing the civil action as untimely filed.
    1
    For purposes of computing the last date on which an appeal must be filed in federal
    district 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).
    5
    For the foregoing reasons, we will summarily affirm the order of the District
    Court dismissing Kramer’s complaint.
    6