OPINION

Motion to Dismiss, ECF No. 8 — Granted

JOSEPH F. LEESON, JR., District Judge.

I. INTRODUCTION

Plaintiff Thomas Marty filed a Complaint pursuant to 42 U.S.C. § 405(g) seeking review of the Social Security Administration's denial of his application for a period of disability and disability insurance benefits. Defendant Nancy A. Berryhill, Acting Commissioner of Social Security, filed a Motion Dismiss, alleging that the Complaint is untimely. For the reasons set forth herein, the Complaint is dismissed as untimely.

II. BACKGROUND

In August 2014, Marty filed an application for a period of disability and disability insurance benefits. Compl. ¶ 2, ECF No. 3. After the application was initially denied, Marty filed a written request for a hearing. Id. at ¶ 3; Exs. 3-4,1 Mot. Dismiss, ECF No. 8-1. A hearing was held in April 2016 before an administrative law judge ("ALJ"), and on June 2, 2016, the ALJ denied Marty's claim. Compl. ¶¶ 4-5; Ex. 5, Mot. Dismiss, ECF No. 8-1. Marty timely requested review by the Appeals Council, and on May 30, 2017, the Appeals Council denied his request for review. Compl. ¶¶ 7-8; Exs. 6-7, Mot. Dismiss, ECF No. 8-1.2

The instant Complaint, prepared by counsel, is dated August 3, 2017. See Compl. 5. But, it was not filed until August 7, 2017.3 See ECF No. 1 (containing the date-stamped Civil Cover Sheet and related documents). On October 30, 2017, Berryhill filed a Motion to Dismiss.4

III. STANDARD OF REVIEW

"Technically, the Federal Rules of Civil Procedure require that affirmative defenses be pleaded in the answer." Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002). "However, the law of this Circuit (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.'" Id. (quoting Hanna v. U.S. Veterans' Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 1975)). In rendering a decision on a motion to dismiss, this Court must "accept all factual allegations as true [and] construe the complaint in the light most favorable to the plaintiff." Phillips v. Cnty. 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. ANALYSIS

Section 405(g) provides that an individual may obtain review of the final decision of the Commissioner of Social Security by filing a civil action "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). There is a presumption that the claimant received notice from the Appeals Council within five days from mailing. See Cardyn v. Comm'r of Soc. Sec., 66 F. App'x 394, 396-97 (3d Cir. 2003). The burden is on the claimant to rebut the presumption of timely receipt. See Garcia v. Comm'r of Soc. Sec., 53 F. App'x 192, 195 (3d Cir. 2002).

The sixty-day period constitutes a statute of limitations and is not a jurisdictional requirement. See Bowen v. City of New York, 476 U.S. 467, 478 (1986). The United States Supreme Court has explained that "the statute of limitations embodied in § 405(g) is a mechanism by which Congress was able to move cases to speedy resolution in a bureaucracy that processes millions of claims annually. Thus, the limitation serves both the interest of the claimant and the interest of the Government." Id. at 481. The limitations period must be strictly construed. Id. at 479.

Here, the Appeals Council denied Marty's request for review on May 30, 2017. Therefore, accounting for the five-day mailing allowance,5 Marty's civil action had to be filed by Thursday, August 3, 2017.6 But, it was not filed until Monday, August 7, 2017. Berryhill has moved to dismiss the Complaint as untimely.

In response to the Motion to Dismiss, Marty inexplicably refers to the Court's procedural order dated August 21, 2017, directing him to cause the summons and complaint to be served within ten days, see ECF No. 2, and to the tolling rules that apply while an application to proceed in forma pauperis is pending. See Opp. 3-4. These dates and rules relate to events occurring after the Complaint was filed, however, and are irrelevant to the statute of limitations inquiry.

Next, Marty's counsel alleges that he mailed the complaint and application to proceed in forma pauperis to the Court via certified mail on August 3, 2017. See Opp. 6. However, a "civil action is commenced by filing a complaint with the court," Fed. R. Civ. P. 3, and "filing by mail is not complete until the complaint is delivered to an officer of the court who is authorized to receive it," Wiss v. Weinberger, 415 F.Supp. 293, 294 n.3 (E.D. Pa. 1976).7 The instant Complaint was not delivered to the clerk of court until August 7, 2017, four days after the expiration of the sixty-day period of limitations. See Schaeffer v. Chater, No. 95-3503, 1996 U.S. Dist. LEXIS 5325, at *3-4 (E.D. Pa. Apr. 17, 1996) (determining that the action brought pursuant to § 405(g) was not filed until the clerk received the plaintiff's complaint and petition to proceed in forma pauperis on June 2, regardless of the fact that they were mailed on May 31, and dismissing the complaint as untimely because it was filed two days after the expiration of the sixty-day period).

Finally, Marty asks this Court to equitably toll the statute of limitations based on his medical condition, indigent status, lack of transportation and permanent residence, and the difficulty this has caused him in returning documents to counsel for filing. See Opp. 5-6.

The limitations period prescribed by § 405(g) is subject to equitable tolling. Bowen, 476 U.S. at 480. There are three principal bases for applying the doctrine of equitable tolling:

Kramer v. Comm'r of Soc. Sec., 461 F. App'x 167, 169 (3d Cir. 2012) (quoting Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994)). "Equitable tolling should be rare and applied sparingly." Falcone v. Berryhill, No. 3:16cv1705, 2017 U.S. Dist. LEXIS 84452, at *9 (M.D. Pa. June 2, 2017). See also Bowen, 476 U.S. at 481 (holding that tolling, "in the rare case . . ., does not undermine the purpose of the 60-day limitations period when viewed in connection with the underlying statute"). A "plaintiff bears the burden of establishing that equitable tolling applies." Courtney v. La Salle Univ., 124 F.3d 499, 505 (3d Cir. 1997).

Although Marty's medical condition and indigency are unfortunate, they are not sufficient to justify equitable tolling. See Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 152 (1984) ("Procedural requirements established by Congress for gaining access to the federal courts are not to be disregarded by courts out of a vague sympathy for particular litigants."). His circumstances are also not necessarily rare in the social security context. See Bowen, 476 U.S. at 469-70 (explaining that the Social Security Disability Insurance Program pays benefits to disabled persons who have contributed to the program and who suffer from a mental or physical disability, and the Supplemental Security Income Program provides benefits to indigent disabled persons). Additionally, the fact that counsel mailed the Complaint within the statute of limitations instead of delivering it to the district court shows that Marty was not "in some extraordinary way" prevented from asserting his rights. See Schaeffer, 1996 U.S. Dist. LEXIS 5325, at *4 ("The fact that the Complaint was mailed within the limitations period is insufficient to justify tolling, particularly since Plaintiff was represented by counsel at all relevant times.").

V. CONCLUSION

Marty, through counsel, filed his Complaint pursuant to § 405(g) after the sixty-day statute of limitations had expired. Because he has not shown that equitable tolling applies, the Complaint is dismissed as untimely. The Motion to Dismiss is granted.

A separate order follows.