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D ock e t N o . 11-4372

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BLD

- 094 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

____________ No. 1 1

- 4372

____________ RONALD STEVEN KRAMER, SR. , Appellant

v. COMMISSIONER OF SOCIAL SECURITY

__________________________________ On Appea l from the United States District Court for the Western District of Pennsylvania (D.C. Civ. No. 11

- cv - 0 0699 ) 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

(F iled : February 08, 2012 )

____________ OPINION OF THE COURT

____________
PER CURIAM

. Appellant Ronald Kramer appeals from an order of the District Court dismissing
h is c omplaint. For the following reasons, we will summarily affirm.2

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. H is clai m was denied and h e requested a hearing . T hat 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, t he 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. Kram er then filed a n 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 sa me post office box in Carnegie, with a copy to Nagle at her new address on Washington Roa d in Pittsburgh, Pennsylvania. On May 25, 2011, K ramer 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

. T he 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) . The3

Commissioner argued that Kramer had been informed that his appeal was denied by letter dated March 2, 2011, but he did not file suit unt il May 25, 2011, some 19 days after the deadline

. Moreover, the case presented no circumsta nces 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 ca use why his suit was not filed within the 60

– day period.
Kramer stat ed 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 Administrati on of his change of address , and her own. Kramer further stated that, b y 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 fi led . 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 correctl y 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 cou rt review within 60 days, you may ask the Appeals Council to extend your time to file.” Neither individual4

advised the Social Security Administration that receipt of the notice of decision had been delayed and neither requested an extension.
Kramer appeal s. 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 ap peal 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 fi nal 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 noti ce of such decision or within such further time as the Commissioner of Social Security may allow. ” 42 U.S.C. § 405(g). T he 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 wrong5

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.” Nat ional R.R. Passenger Corp. v. Mor gan , 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 t o guard against possible misuse”). Second, none of the arguments raised by Kramer in his summary

a ction response undermine s 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 expire d with no forwarding address ; and he was hospitalized on several occasions, most recently in August, 2011 , when he had a “near death experience

. ” T hese assertions do not address the date when Kramer actually received the Appeals Council’s notice of decision, n or do they adequ ately and specifically explain why he was able to file his civil action by May 25,
201 1 , but not by the due date of May 6, 2011. 1 Accordingly, the District Court did not

err in finding no good cause for apply ing the doctrine of equitable tolling , and in d ismissing the civil action as untimely filed.

1 For purposes of computing the last date on which an appeal must be filed in federal distric t 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 reaso nable showing to the contrary.” 20 C.F.R. § 422.210(c).6

For the foregoing reasons, we will summarily affirm the order of the District Court dismissing Kramer’s complaint.