The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
WENDY NAIMI, : Civil No. 4:24-CV-01391
:
Plaintiff, :
:
v. :
: (Magistrate Judge Carlson)
LELAND DUDEK, :
Acting Commissioner of Social Security,1 :
:
Defendant. :
MEMORANDUM OPINION
I. Statement of the Facts and of the Case
This social security disability appeal comes before us for consideration of a
motion to dismiss filed by the defendant, the Acting Commissioner of Social
Security. In this motion, the defendant asserts that the complaint filed by the
plaintiff, an unsuccessful social security disability claimant, is barred by the statute
of limitations that is applicable to such cases.
With respect to this statute of limitations claim, the pertinent facts are largely
1 Leland Dudek became the Acting Commissioner of Social Security on February 16,
2025. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Leland Dudek
should be substituted for the previously named defendant in this suit. No further
action need be taken to continue this suit by reason of the last sentence of section
205(g) of the Social Security Act, 42 U.S.C. § 405(g).
undisputed. On August 20, 2020, the plaintiff, Wendy Naimi,2 filed a Title II
application for disability and disability insurance benefits (DIB), alleging she was
disabled due to a combination of physical and mental impairments. (Doc. 10-1, at
10). After the Commissioner denied Naimi’s application, at the plaintiff’s request,
an administrative law judge (ALJ) held a hearing on her application. On July 14,
2022, the ALJ issued a decision denying Naimi’s application for Title II benefits.
(Id., at 9-34).
Naimi timely sought Appeals Council review of this adverse decision, but on
October 3, 2023, the Appeals Council denied her request to review this ALJ decision.
(Id., at 35-40). The Appeals Council mailed its denial notice to Naimi at the address
she had provided to Social Security and in its October 3, 2023, denial notice Social
Security informed Naimi of her right to commence a civil action within 60 days from
the date of receipt of the notice. (Id.) In addition, the Appeals Council’s denial letter
instructed Naimi that if she could not file her Complaint within 60 days of receipt of
the notice, she could request that the Appeals Council extend the time in which he
could commence a civil action. (Id.) The denial notices also indicated that the
Appeals Council would presume plaintiff received a copy of the notice within five
days of the date of the notice. (Id.) Given this notice, which no party disputes was
2 Some of the Social Security decisions and documents reference the plaintiff as
Wendy Tanya Sheaffer.
received by Naimi, in order to be timely Naimi needed to file this civil action on or
before December 7, 2023.
It is undisputed that Naimi, who is proceeding in this litigation pro se, failed
to meet this filing deadline and instead filed her complaint in this Court more than
eight months later, on August 19, 2024. (Doc. 1.) The plaintiff does not explain the
delay in the filing of this complaint or why she did not request an extension of the
deadline despite conceding she received the notice from the Appeals Council
detailing how she could do so. Instead, Naimi states that she contacted the Social
Security Administration to challenge the ALJ’s decision, referencing a November 8,
2023, letter which the defendant has couched as an “implied request to reopen the
unfavorable hearing decision” on November 8, 2023. (Doc. 10-1, ⁋ (3)(b)); Doc. 12-
1, at 1). As of the date of the briefing, the Appeals Council had not acted upon this
request. (Id.)
It is against this factual backdrop that the Commissioner moves to dismiss this
complaint as time-barred. (Doc. 9). This motion is fully briefed by the parties and is,
therefore, ripe for resolution. (Docs. 10, 12). Though we acknowledge the plaintiff’s
position as a pro se litigant, in the absence of any clear explanation why she waited
more than eight months past the deadline to file the instant complaint despite all
parties acknowledging she received notice of the 60-day deadline, and ways she
could request that the deadline be extended, we find that the plaintiff’s complaint is
clearly time-barred. Furthermore, to the extent that the plaintiff argues the Court
should consider her November 8, 2023, implied request to reopen the unfavorable
hearing decision as an event which tolled the statute of limitations, we are
constrained by the well-settled tenet of administrative exhaustion, which bars our
consideration of this request which upon which the agency has not yet ruled. Thus,
Naimi’s complaint is either far too late or far too early to be properly considered in
this court.
Accordingly, for the reasons set forth below, this motion to dismiss will be
granted.
II. Discussion
A. Motion to Dismiss—Standard of Review
A motion to dismiss tests the legal sufficiency of a complaint. It is proper for
the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal
Rules of Civil Procedure only if the complaint fails to state a claim upon which relief
can be granted. Fed. R. Civ. P. 12(b)(6). With respect to this benchmark standard for
legal sufficiency of a complaint, the United States Court of Appeals for the Third
Circuit has aptly noted the evolving standards governing pleading practice in federal
court, stating that:
Standards of pleading have been in the forefront of jurisprudence in
recent years. Beginning with the Supreme Court’s opinion in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), continuing with our
opinion in Phillips [v. County of Allegheny, 515 F.3d 224, 230 (3d Cir.
2008)], and culminating recently with the Supreme Court’s decision in
Ashcroft v. Iqbal, BU.S.B, 129 S. Ct. 1937 (2009), pleading standards
have seemingly shifted from simple notice pleading to a more
heightened form of pleading, requiring a plaintiff to plead more than
the possibility of relief to survive a motion to dismiss.
Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).
In considering whether a complaint fails to state a claim upon which relief
may be granted, the court must accept as true all allegations in the complaint and all
reasonable inferences that can be drawn therefrom are to be construed in the light
most favorable to the plaintiff. Jordan v. Fox, Rothschild, O’Brien & Frankel, Inc.,
20 F.3d 1250, 1261 (3d Cir. 1994). However, a court “need not credit a complaint’s
bald assertions or legal conclusions when deciding a motion to dismiss.” Morse v.
Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). Additionally, a court
need not “assume that a . . . plaintiff can prove facts that the . . . plaintiff has not
alleged.” Associated Gen. Contractors of Cal. v. California State Council of
Carpenters, 459 U.S. 519, 526 (1983). As the Supreme Court held in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007), in order to state a valid cause of action, a
plaintiff must provide some factual grounds for relief which “requires more than
labels and conclusions, and a formulaic recitation of the elements of a cause of
actions will not do.” Id. at 555. “Factual allegations must be enough to raise a right
to relief above the speculative level.” Id.
In keeping with the principles of Twombly, the Supreme Court has
underscored that a trial court must assess whether a complaint states facts upon
which relief can be granted when ruling on a motion to dismiss. In Ashcroft v. Iqbal,
556 U.S. 662 (2009), the Supreme Court held that, when considering a motion to
dismiss, a court should “begin by identifying pleadings that, because they are no
more than conclusions, are not entitled to the assumption of truth.” Id. at 679.
According to the Supreme Court, “[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Id. at 678. Rather,
in conducting a review of the adequacy of a complaint, the Supreme Court has
advised trial courts that they must:
[B]egin by identifying pleadings that because they are no more than
conclusions are not entitled to the assumption of truth. While legal
conclusions can provide the framework of a complaint, they must be
supported by factual allegations. When there are well-pleaded factual
allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.
Id. at 679.
Thus, following Twombly and Iqbal, a well-pleaded complaint must contain
more than mere legal labels and conclusions; it must recite factual allegations
sufficient to raise the plaintiff’s claimed right to relief beyond the level of mere
speculation. As the United States Court of Appeals for the Third Circuit has stated:
[A]fter Iqbal, when presented with a motion to dismiss for failure to
state a claim, district courts should conduct a two-part analysis. First,
the factual and legal elements of a claim should be separated. The
District Court must accept all of the complaint’s well-pleaded facts as
true, but may disregard any legal conclusions. Second, a District Court
must then determine whether the facts alleged in the complaint are
sufficient to show that the plaintiff has a “plausible claim for relief.” In
other words, a complaint must do more than allege the plaintiff’s
entitlement to relief. A complaint has to “show” such an entitlement
with its facts.
Fowler, 578 F.3d at 210-11.
As the Court of Appeals has observed:
The Supreme Court in Twombly set forth the “plausibility” standard for
overcoming a motion to dismiss and refined this approach in Iqbal. The
plausibility standard requires the complaint to allege “enough facts to
state a claim to relief that is plausible on its face.” Twombly, 550 U.S.
at 570, 127 S. Ct. 1955. A complaint satisfies the plausibility standard
when the factual pleadings “allow[ ] the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Iqbal,
129 S. Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S. Ct. 1955).
This standard requires showing “more than a sheer possibility that a
defendant has acted unlawfully.” Id. A complaint which pleads facts
“merely consistent with” a defendant’s liability, [ ] “stops short of the
line between possibility and plausibility of ‘entitlement of relief.’ ”
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011), cert. denied,
132 S. Ct. 1861, 182 L.Ed.2d 644 (2012).
In practice, consideration of the legal sufficiency of a complaint entails a
three-step analysis: “First, the court must ‘tak[e] note of the elements a plaintiff must
plead to state a claim.’ Iqbal, 129 S. Ct. at 1947. Second, the court should identify
allegations that, ‘because they are no more than conclusions, are not entitled to the
assumption of truth.’ Id. at 1950. Finally, ‘where there are well-pleaded factual
allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief.’ Id.” Santiago v. Warminster Twp.,
629 F.3d 121, 130 (3d Cir. 2010).
In considering a motion to dismiss, the court generally relies on the complaint,
attached exhibits, and matters of public record. Sands v. McCormick, 502 F.3d 263,
268 (3d Cir. 2007). The court may also consider “undisputedly authentic
document[s] that a defendant attached as an exhibit to a motion to dismiss if the
plaintiff’s claims are based on the [attached] documents.” Pension Benefit Guar.
Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover,
“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. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 560 (3d Cir.
2002); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d382, 388 (3d Cir. 2002)
(holding that “[a]lthough a district court may not consider matters extraneous to the
pleadings, a document integral to or explicitly relied upon in the complaint may be
considered without converting the motion to dismiss in one for summary
judgment”). However, the court may not rely on other parts of the record in
determining a motion to dismiss, or when determining whether a proposed amended
complaint is futile because it fails to state a claim upon which relief may be granted.
Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994).
B. Statute of Limitations – Social Security Appeals
42 U.S.C. § 405(g) prescribes the period within which one must file a
complaint seeking judicial review of an administrative decision denying social
security benefits, and provides that:
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).
It is well-settled that this 60–day filing requirement is not a jurisdictional limit
on the power of the court, “but rather constitutes a period of limitations.” Bowen v.
City of New York, 476 U.S. 467, 478 (1986). Nonetheless, because the limitations
period is a condition of the waiver of sovereign immunity, and serves a salutary
purpose in ensuring timely submission of claims, this 60–day limitations period
“must be strictly construed.” Id. at 479. However, as a statute of limitations, the 60–
days limitations period prescribed by § 405(g) is also subject to equitable tolling.
Indeed, as the Supreme Court has observed: “application of a ‘traditional equitable
tolling principle’ to the 60–day requirement of § 405(g) is fully ‘consistent with the
overall congressional purpose’ and is ‘nowhere eschewed by Congress.’” Id. at 480
(quoting Honda v. Clark, 386 U.S. 484, 581 (1967)).
Adopting these benchmarks, courts have held that equitable tolling should be
rare and “applied sparingly,” National R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 113 (2002), but have agreed that equitable tolling “may be appropriate: ‘(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.’” Cardyn v. Comm’r of Soc. Sec., 66 F. App’x
394, 397 (3d Cir. 2003) (quoting Oshiver v. Levin, Fishbein, Sedran & Berman, 38
F.3d 1380, 1387 (3d Cir.1994)). With respect to equitable tolling claims made in this
setting, it is also clear that: “plaintiff bears the burden of establishing that equitable
tolling applies.” Frazier v. Colvin, No. CIV.A. 13 28, 2013 WL 1891351, at *2
(W.D.Pa. May 6, 2013) (citing Courtney v. La Salle Univ., 124 F.3d 499, 505 (3d
Cir.1997)).
C. The Defendant’s Motion to Dismiss Will Be Granted.
These well-settled principles apply here and compel dismissal of Naimi’s
complaint. It is entirely undisputed that Naimi received the Appeals Council denial
in October 2023, some eight months before she filed the instant complaint in federal
court on August 19th, 2024. This clearly runs afoul of the strictly construed 60-day
limitations period of which Naimi was informed in the Appeals Council notice she
received. Moreover, Naimi has not presented any argument as to why this limitations
period should be equitably tolled. Although she argues that she called the Social
Security Administration and submitted a request that the ALJ decision be reopened,
she does not argue that she was misled or prevented from asserting her rights in any
way.
Nor can Naimi argue that she timely filed her appeal in the wrong forum.
While she did send a letter to the Social Security Administration impliedly
requesting that her Social Security application be reopened within the limitations
period, this is decidedly not an incorrect forum, it is simply that the Appeals Council
has not yet addressed her request. On this score, our consideration of this request to
reopen that Naimi sent to the Social Security Administration is barred by the tenet
of administrative exhaustion, which “clearly limits judicial review to a particular
type of agency action, a ‘final decision’ of the Secretary made after a hearing.”
Pallotta v. Barnhart, 144 F. App’x 938, 940 (3d Cir. 2005) (quoting Califano v.
Sanders, 430 U.S. 99, 108, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)). Indeed, “[w]ithout
a ‘final decision,’ a district court lacks subject matter jurisdiction to review a Social
Security benefit determination.” Chailla v. Comm’r of Soc. Sec. Admin., 838 F.
App’x 653, 655 (3d Cir. 2020). Thus, her reference to this November 8, 2023,
implied request to reopen the ALJ decision neither excuses the untimeliness of her
appeal nor constitutes a final decision over which this Court has jurisdiction.
Since the plaintiff filed her complaint eight months too late and has failed to
argue the limitations period should be equitably tolled, we will grant the defendant’s
motion to dismiss her complaint.
An appropriate order follows.
S/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
Dated: April 29, 2025