DeLong v. Heckler, 84-1670

Decision Date21 August 1985
Docket NumberNo. 84-1670,84-1670
Parties, Unempl.Ins.Rep. CCH 16,298 Warren E. DeLONG, Plaintiff-Appellant, v. Margaret HECKLER, Secretary of Health & Human Services, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

Douglas J. Atz, Auburn, Ind., for plaintiff-appellant.

R. Lawrence Steele, Jr., U.S. Atty., Hammond, Ind., David H. Miller, Asst. U.S. Atty., Ft. Wayne, Ind., and Mimi Hwang Leahy, Asst. Reg. Atty., H.H.S., Chicago, Ill., for defendant-appellee.

Before BAUER, WOOD and POSNER, Circuit Judges.

POSNER, Circuit Judge.

This appeal from a judgment for the Secretary of Health and Human Services requires us to decide a novel question involving the scope of review by the Appeals Council of the Social Security Administration in disability cases. For background on the Appeals Council, see 2 McCormick, Social Security Claims and Procedure Secs. 599-604 (1983); Mashaw, et al., Social Security Hearings and Appeals 102-07 (1978).

DeLong applied for disability benefits, and an administrative law judge granted them, but only up to August 18, 1981. At the hearing on August 12 DeLong had testified that he was now ready to return to work, and on the basis of this and other evidence the administrative law judge concluded that DeLong's disability had ended. Within 60 days of the decision DeLong filled out an application at his local social security office to appeal to the Appeals Council from the administrative law judge's decision to grant him benefits only until August 18. DeLong argues that he did not intend to appeal to the Appeals Council--that he thought he was signing a new application for benefits. But the form he filled out was unambiguous, and the case was duly referred to the Appeals Council for review based on DeLong's contention (made in the application for review) that he was still disabled. The Appeals Council, however, concluded that DeLong had never been disabled, and reversed the administrative law judge's decision, though only after notifying DeLong of its intention to do so and offering him an opportunity, which he rejected, to appear in person before the Council. DeLong then brought the present action, in which he seeks judicial review of the Appeals Council's action in denying him benefits. So far as appears, the Social Security Administration is not seeking repayment of any disability benefits that may actually have been paid DeLong pursuant to the administrative law judge's decision.

The only issue not adequately discussed in the district court's opinion is whether the Appeals Council has the power, when reviewing an administrative law judge's decision at the behest of an applicant for social security disability benefits who believes that the administrative law judge did not make a sufficiently generous award, to throw out the entire award if contrary to the law or facts of the case. No statute or regulation deals with the question, although we understand that it is the general practice of the Appeals Council, not an aberration. In Garrison v. Heckler, 765 F.2d 710, 712 (7th Cir.1985), we assumed the propriety of the practice without discussing the issue; the claimant in that case had not questioned it. Garrison by the way is some evidence that the Appeals Council's practice is indeed a general one; apparently it has not always been, see Mashaw, et al., supra, at 104.

A regulation, the validity of which is not questioned, provides: "Anytime within sixty days after the date of a hearing decision or dismissal, the Appeals Council itself may decide to review the action that was taken." 20 C.F.R. Sec. 404.969. It seems clear from the wording ("decision or dismissal"), and was assumed in our recent opinion in Scott v. Heckler, 768 F.2d 172 (7th Cir.1985), as well as in the First Circuit's opinion in Lopez-Cardona v. Secretary of Health & Human Services, 747 F.2d 1081, 1082-83 (1st Cir.1984), that the power extends to decisions granting as well as denying benefits. There would be little point to giving the Appeals Council a power to review only denials of benefits on its own initiative, since in most cases of denial the disappointed applicant will appeal if there is any ground for an appeal. The wording of section 404.969 is more neutral than that of section 404.987(a) (reopening). The latter could be read to make the reopening of a disability case a remedy of the disappointed applicant: "Generally, if you are dissatisfied with a determination or decision made in the administrative review process, but do not request further review within the stated time period, you lose your right to further review. ...

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27 cases
  • Katz v. Sullivan
    • United States
    • U.S. District Court — Eastern District of New York
    • 20 Diciembre 1991
    ...decision has passed, § 404.969 bars Appeals Council from raising issues not appealed by claimant); see also De Long v. Heckler, 771 F.2d 266, 268 (7th Cir.1985) (Posner, J.) (suggesting in dictum that `the word `However' in § 404.987 is particularly suggestive that reopening is intended to ......
  • Parker v. Bowen
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • 13 Mayo 1986
    ...in the aggregate hundreds of thousands of disability cases a year. The need for greater consistency is acute ....DeLong v. Heckler, 771 F.2d 266, 268 (7th Cir.1985) (citations omitted).10 For example, the decision of the ALJ becomes the final decision of the Secretary if the Appeals Council......
  • Gutierrez v. Bowen
    • United States
    • U.S. District Court — Southern District of New York
    • 3 Enero 1989
    ...and thus seem to limit reopening to claimants, one court has questioned whether the Council may reopen at all. De Long v. Heckler, 771 F.2d 266, 267-68 (7th Cir.1985) (Posner, J.) (dictum). However, certain provisions realistically would be utilized only by the Council: most glaringly, the ......
  • McCuin v. Secretary of Health and Human Services, 86-1732
    • United States
    • U.S. Court of Appeals — First Circuit
    • 14 Abril 1987
    ...1401 (W.D.Pa.1984), and Dion v. Heckler, Civ. No. 83-442-D (D.N.H.1984); it was also suggested in dictum by the court in Delong v. Heckler, 771 F.2d 266 (7th Cir.1985). This view stresses that Sec. 404.987 speaks only of claimants requesting review while making no mention of the Appeals Cou......
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