United States District Court, E.D. Pennsylvania
SUSANN M. SCHOFIELD
ANDREW SAUL, Commissioner of Social Security
SANDRA MOORE WELLS, UNITED STATES MAGISTRATE JUDGE
M. Schofield (“Plaintiff”), seeks judicial
review, pursuant to 42 U.S.C. §§ 405(g),
1383(c)(3), of the final decision of the Commissioner of the
Social Security Administration (“the
Commissioner”), denying her claim for a period of
disability and disability insurance benefits
(“DIB”) under Title II of the Social Security
Act. The Commissioner filed a motion to dismiss this
Complaint as untimely. Doc. no. 13. For the reasons set forth
herein, the Commissioner's motion is granted and
Plaintiff's untimely Complaint is dismissed.
18, 2015, Plaintiff filed an application for DIB alleging
disability, as of July 24, 2013, based upon claims of
physical and mental impairments. Nov. 16, 2017 Decision, doc.
no. 2 at 14, 16. Plaintiff's claim was denied
initially, hence, she requested a hearing. Id. at
14. On August 2, 2017, a hearing was held before Deborah
Mande, Administrative Law Judge (“the ALJ”).
Id. Plaintiff, represented by Michael F. McCartin,
Esquire, and Gary A. Young, a vocational expert (“the
VE”), testified at the hearing. Id. On
November 16, 2017, the ALJ issued an unfavorable decision.
Id. at 14-31. The Appeals Council denied
Plaintiff's request for review on October 15, 2018,
making the ALJ's findings the final determination of the
Commissioner. Id. at 7-9.
on March 6, 2019, the Appeals Council granted Plaintiff's
request for a 30 day extension to file a civil action to
challenge the decision of the Commissioner. Id. at
10. The Appeals Council's letter explained that Plaintiff
was required to file her civil action within 30 days from
receipt of the letter granting her request and that the
Appeals Council would assume that Plaintiff had received the
letter within 5 days of when it was mailed. Id.
pro se, signed her Complaint on April 3, 2019.
Id. at 5. However, she did not file it until April
12, 2019. See docket entries, Civ. A. No. 19-1600.
On April 17, 2019, the Honorable Mark A. Kearney entered an
order granting Plaintiff's request to proceed in
forma pauperis, denying, without prejudice
Plaintiff's request for appointment of counsel, directing
the Clerk of Court to issue summonses, and ordering the U.S.
Marshal to serve the summons and complaint. Doc. no. 6. On
May 7, 2019, Plaintiff filed her Consent to Jurisdiction of a
Magistrate Judge. Doc. no. 9. Accordingly, this case was
reassigned to the undersigned for all further proceedings.
Doc. no. 11.
1, 2019, the Commissioner filed a motion to dismiss
Plaintiff's complaint as untimely. Doc. no. 13. On July
25, 2019, this court ordered Plaintiff to respond to the
motion by Friday, August 9, 2019; the order further advised
that failure to do so could result in dismissal of her case
as untimely. Doc. no. 14. To date, Plaintiff has neither
filed a response to the motion nor has not requested an
extension of time in which to do so.
STANDARD OF REVIEW
the Federal Rules of Civil Procedure require that affirmative
defenses be pleaded in the answer.'” Marty v.
Berryhill, 2018 WL 1790343, at *2 (E.D. Pa. Apr. 13,
2018) (quoting Robinson v. Johnson, 313 F.3d 128,
135 (3d Cir. 2002)). However, the so-called “Third
Circuit Rule” permits a limitations defense to be
raised by a motion under Rule 12(b)(6), but only if
“‘the time alleged in the statement of a claim
shows that the cause of action has not been brought within
the statute of limitations.'” Marty, at *2
(quoting Hanna v. U.S. Veterans' Admin. Hosp.,
514 F.2d 1092, 1094 (3d Cir. 1975).
deciding a motion to dismiss pursuant to Rule 12(b)(6),
courts generally consider only the allegations in the
complaint, exhibits attached to the complaint, matters of
public record, and documents that form the basis of a
claim.” Lum v. Bank of America, 361 F.3d 217,
221 n.3 (3d Cir. 2004). Additionally, “documents whose
contents are alleged in the complaint and whose authenticity
no party questions, but which are not physically attached to
the pleading, may be considered.” Pryor v. National
Collegiate Athletic Ass'n, 288 F.3d 548, 560 (3d
Cir. 2002) (quoting 62 Fed. Proc. L.Ed. § 62:508).
Moreover, the court must “accept all factual
allegations as true [and] construe the complaint in the light
most favorable to the plaintiff.” Phillips v. City
of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting
Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n.7
(3d Cir. 2002) (internal quotation marks omitted).
405(g) provides that an
individual, after any final decision of the Commissioner of
Social Security made after a hearing . . . may obtain 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 ...