2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-8-2012

Ronald Kramer Sr. v. Commissioner Social Security

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-4372

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"Ronald Kramer Sr. v. Commissioner Social Security" (2012). 2012 Decisions. Paper 1441.

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BLD-094 NOT PRECEDENTIAL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.
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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 
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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 
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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 
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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).
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For the foregoing reasons, we will summarily affirm the order of the District 

Court dismissing Kramer’s complaint.