CHEATHAM v. SOCIAL SECURITY ADMINISTRATION

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KAREEM A. CHEATHAM, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 21-cv-00741-RAL

:

SOCIAL SECURITY :

ADMINISTRATION :

Defendant. :

MEMORANDUM OPINION

RICHARD A. LLORET March 31, 2022

U.S. MAGISTRATE JUDGE

Kareem Cheatham was denied Social Security benefits by the decision of an

Administrative Law Judge (“ALJ”). Mr. Cheatham contends that the ALJ’s unfavorable

decision was reached in error. See Doc. No. 13 (Complaint). In response, the Acting

Commissioner of Social Security (“Commissioner”) filed a motion to dismiss, arguing

that Mr. Cheatham filed his complaint more than two months late and that there are no

reasons to justify equitably tolling the time requirement. Doc. No. 21 (Commissioner’s

Brief), at 3–5. Mr. Cheatham responded by arguing that equitable tolling should be

granted in his case because he mistakenly believed he could not both file for Pandemic

Unemployment Assistance (“PUA”) and pursue review of his Social Security benefits

claim, hence his delay in filing. Doc. No. 23, at 1–2.

After careful review, I find that Mr. Cheatham’s complaint was filed after the

sixty-day limitations period for filing an appeal had expired, and that the untimely filing

cannot be remedied by equitable tolling. For the reasons set forth below, the

Commissioner’s motion to dismiss is granted, Mr. Cheatham’s request for review is

denied, and the complaint is dismissed with prejudice.

PROCEDURAL HISTORY

An ALJ issued a decision denying Mr. Cheatham’s claim for Social Security

benefits on May 22, 2019.1 Doc. No. 21-1, at 17. Mr. Cheatham subsequently requested

the Appeals Council to review the ALJ’s decision. Id. at 26. The Appeals Council denied

Mr. Cheatham’s request for review and notified him of this decision in a letter dated

October 6, 2020. Id. at 22. The letter detailed the actions Mr. Cheatham was required to

take to request judicial review of the ALJ’s decision. Id. at 23–24. Importantly, the letter

advised Mr. Cheatham of the limited time (sixty days) that he had to initiate a civil

action appealing the ALJ’s decision.2 Id. at 24. Mr. Cheatham was also informed that he

could, for good reason, ask the Commissioner for an extension of this deadline.3 Id.

On July 2, 2021, Mr. Cheatham, proceeding pro se, successfully filed a complaint

in this court appealing the ALJ’s decision.4 Doc. No. 13. I deemed the complaint filed on

July 29, 2021. Doc. No. 17. On September 2, 2021, I appointed counsel through the

Court’s Social Security Panel to represent Mr. Cheatham. Doc. No. 20. The

1 All of the facts summarized in this section were taken from the exhibits attached to the Commissioner’s

motion to dismiss. See Doc. No. 21-1.

2 The letter explained how the sixty days would be calculated. Doc. No. 21-1, at 24 (“The 60 days start the

day after you receive this letter. We assume you received this letter 5 days after the date on it unless you

show us that you did not receive it within the 5-day period.”)

3 “If you cannot file for court review within 60 days, you may ask the Appeals Council to extend your time

to file. You must have a good reason for waiting more than 60 days to ask for court review. You must

make the request in writing and give your reason(s) in the request.” Doc. No. 21-1, at 24.

4 Mr. Cheatham had originally filed a complaint in this case on February 12, 2021. Doc. No. 2. This

complaint was dismissed without prejudice on May 25, 2021 on account of his failure to pay the filing fee.

Doc. No. 10.

Commissioner filed a motion to dismiss Mr. Cheatham’s complaint as untimely. Doc.

No. 21. Mr. Cheatham subsequently filed a response. Doc. No. 23.

After careful review of the parties’ filings, I find that Mr. Cheatham’s complaint

was untimely filed and there are no circumstances that justify equitable tolling.5

DISCUSSION

A. Standard of Review

Affirmative defenses not listed in Rule 12(b) generally must be asserted in a

party’s answer. See Fenimore v. Berryhill, No. 17-4722, 2018 WL 1942359, at *1 (E.D.

Pa. April 24, 2018) (citing to Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002);

Brown v. Montgomery Cnty., 470 F. App’x 87, 90 (3d Cir. 2012). The Third Circuit,

however, allows a statute-of-limitations defense to be raised in a motion to dismiss, 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.”6 Brown, 470 F. App’x at 90 (quoting Hanna

v. U.S. Veterans’ Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975)).

When considering a motion to dismiss, I may 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), abrogated on other grounds by Twombly, 550 U.S. at 557, 127 S.Ct. 1955, as

recognized in In re Lipitor Antitrust Litig., 868 F.3d 231, 249 (3d Cir. 2017); see also

Fenimore, 2018 WL 1942359, at *1. I must “accept all well-pleaded factual allegations in

the complaint as true and view them in the light most favorable to the plaintiff.” Pension

5 The parties consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings

in this case, pursuant to 28 U.S.C. § 636(c), including entry of final judgment. See Doc. No. 11, 15.

6 This is known as the “Third Circuit Rule.” See, e.g., Fenimore, 2018 WL 1942359, at *1; Brown, 470 F.

App’x at 90.

Tr. Fund for Operating Eng’rs v. Mortg. Asset Securitization Transactions, Inc., 730

F.3d 263, 268 (3d Cir. 2013). I am not bound to “accept unsupported conclusions and

unwarranted inferences, or a legal conclusion couched as a factual allegation.” Id.

(quoting Morrow v. Balaski, 719 F.3d 160, 165 (3d Cir. 2013) (en banc)). Only claims

that that “lack facial plausibility” should be dismissed. Id. (quoting Morrow, 719 F.3d at

165).

B. Mr. Cheatham’s Complaint Was Untimely Filed

To obtain judicial review of an ALJ’s unfavorable decision, claimants must file a

civil action within sixty days of receiving notice of the decision “or within such further

time as the Commissioner of Social Security may allow.” 42 U.S.C. § 405(g). This

limitations period serves the interest of the claimant as well as the government. Bowen

v. City of New York, 476 U.S. 467, 481 (1986). Not only does this sixty-day period

further the traditional purposes of all statutes of limitation,7 but it also “is a mechanism

by which Congress [is] able to move cases to speedy resolution in a bureaucracy that

processes millions of claims annually.” Id. Therefore, it must be “strictly construed.”

Marty v. Berryhill, No. 17-03673, 2018 WL 1790343, at *2 (citing Bowen, 476 U.S. at

479).

Here, the Appeals Council letter to Mr. Cheatham, informing him of its final

decision, was dated October 6, 2020. Doc. No. 21-1, at 22. The sixty-day clock began

ticking five days later—October 11, 2020—because Mr. Cheatham did not indicate that

7 As the Supreme Court has explained, “statutory limitation periods are ‘designed to promote justice by

preventing surprises through the revival of claims that have been allowed to slumber until evidence has

been lost, memories have faded, and witnesses have disappeared. The theory is that even if one has a just

claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the

right to be free of stale claims in time comes to prevail over the right to prosecute them.” Bowen, 476 U.S.

at 481 n.13 (internal citations omitted).

he received the letter at a later date. See id. at 24;8 see also Marty, 2018 WL 1790343, at

*2 (citing Cardyn v. Comm’r of Soc. Sec., 66 F. App’x 394, 396–97 (3d Cir. 2003))

(“There is a presumption that the claimant received notice from the Appeals Council

within five days from mailing.”). In the absence of any tolling, Mr. Cheatham had sixty

days to initiate this action, before the limitations period would expire on December 10,

2020. However, Mr. Cheatham’s complaint was not filed until February 12, 2021—sixty-

four days after the limitations period ended.

Because Mr. Cheatham filed his complaint after the limitations period had run, I

must now consider whether equitable tolling is appropriate.

C. Mr. Cheatham’s Reasons for Failure to Timely File Do Not Warrant

the Invocation of Equitable Tolling.

The sixty-day limitations period to file an appeal may be equitably tolled in

certain circumstances. See Bowen, 476 U.S. at 481-82 (finding District Court’s tolling of

limitation period appropriate because government’s “secretive conduct” prevented

plaintiffs from timely filing); see also Marty, 2018 WL 1790343, at *3. “While in most

cases the Secretary will make the determination whether it is proper to extend the

period within which review must be sought, cases may arise where the equities in favor

of tolling the limitations period are ‘so great that deference to the agency’s judgment is

inappropriate.’” Bowen, 476 U.S. at 480 (quoting Mathews v. Eldridge, 424 U.S. 319,

330 (1976)).

Equitable tolling should only be employed “sparingly.” Kramer v. Comm’r of Soc.

Sec., 461 F. App’x 167, 169 (3d Cir. 2012) (quoting Nat’l R.R. Passenger Corp. v.

8 “We assume you received this letter 5 days after the date on it unless you show us that you did not

receive it within the 5 day period.” Doc. No. 21-1, at 24.

Morgan, 536 U.S. 101, 113 (2002)). The Third Circuit has recognized that equitable

tolling may be appropriate in the following circumstances: “‘(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

forum.’”9 Id. (quoting Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387

(3d Cir. 1994)). The claimant bears the burden of establishing circumstances that justify

equitable tolling. Cardyn v. Comm’r of Soc. Sec., 66 F. App’x 394, 397 (3d Cir. 2003)

(citing Courtney v. La Salle Univ., 124 F.3d 499, 505 (3d Cir. 1997)).

Mr. Cheatham claims he neglected to timely file his complaint because he

believed he could not both appeal the denial of his Social Security claim and apply for

PUA. Doc. No. 23, at 1-2. He also avers that “his prior counsel neither disabused him of

this belief nor informed him that he would no longer be represented on his SSI appeal.”

Id. at 2. Mr. Cheatham states that it was only after receiving a letter from his counsel on

January 8, 2021 announcing the closure of his case file, as well as the denial of his PUA

application, that he felt he could proceed with his appeal but realized he would have to

proceed pro se. Id.

I find that Mr. Cheatham does not establish a basis for invoking equitable tolling.

Confusion about the law is typically only a basis for invoking equitable tolling when

either the claimant’s attorney or the government actively misled the claimant. See, e.g.,

Roberts v. Berryhill, No. 16-5531, 2018 WL 1942417, at *6–7 (E.D. Pa. Apr. 25, 2018)

9 Equitable tolling also may be appropriate when the claimant alleges “that [he] failed to timely appeal

because [he] was unable to comprehend [his] right to judicial review as a result of a mental impairment.”

Cardyn v. Comm’r of Soc. Sec., 66 F. App’x 394, 398 n.2 (3d Cir. 2003). Mr. Cheatham has not alleged

that a mental impairment was the reason for not timely filing his complaint.

(Savage, J.) (invoking equitable tolling when employees of the Social Security

Administration told the claimant incorrect information about the status of his claim

contesting an alleged overpayment, causing him to file his complaint outside the statute

of limitations); Torres v. Barnhart, 417 F.3d 276, 279–80 (2d Cir. 2005) (ordering an

evidentiary hearing into whether to invoke equitable tolling when “a litigant, on the

verge of timely filing his own pro se complaint, reasonably believe[d] that an attorney,

fully cognizant of the time constraints, ha[d] agreed to assist him in filing, only to learn

later that the attorney ha[d] done nothing at all”). Mr. Cheatham does not allege that the

Social Security Administration misled him, nor does he allege that his prior counsel

actively misled him into believing he could not both appeal the denial of Social Security

benefits and apply for PUA. He was informed specifically, in the letter from the Appeals

Council, of the sixty-day period to file an appeal and preserve his rights. Nevertheless,

he missed this deadline. Mr. Cheatham also does not allege any extraordinary situations

preventing him from filing his complaint in a timely manner, nor does he allege he filed

the claim in the wrong forum. Therefore, I find that Mr. Cheatham has not borne his

burden of establishing circumstances that would justify equitable tolling.

CONCLUSION

Based upon the discussion above, the Commissioner’s motion to dismiss is

granted, and Mr. Cheatham’s complaint is dismissed with prejudice. Mr. Cheatham did

not initiate this action within the prescribed time period, and I find that there are no

grounds for equitable tolling.

BY THE COURT:

s/ Richard A. Lloret____

RICHARD A. LLORET

U.S. Magistrate Judge