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Schofield v. Saul

United States District Court, E.D. Pennsylvania

August 29, 2019

SUSANN M. SCHOFIELD
v.
ANDREW SAUL,[1] Commissioner of Social Security

          MEMORANDUM

          CAROL SANDRA MOORE WELLS, UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Susann 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.

         II. PROCEDURAL HISTORY

         On May 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.[2] 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.

         Thereafter, 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.

         Plaintiff, 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.

         On July 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.

         III. STANDARD OF REVIEW

         “'Technically, 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).

         “In 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).

         IV. DISCUSSION

         Section 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 ...

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