BLD-094                                                        NOT PRECEDENTIAL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
