Keith v. Heckler, Civ. A. No. 84-9-NN.

• Decision Date: 25 January 1985
• Docket Number: Civ. A. No. 84-9-NN.
• Citation: 603 F. Supp. 150
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Mary B. KEITH, Plaintiff, v. Margaret M. HECKLER, Secretary of Health & Human Services, Defendant.

603 F. Supp. 150

Mary B. KEITH, Plaintiff, v. Margaret M. HECKLER, Secretary of Health & Human Services, Defendant.

Civ. A. No. 84-9-NN.

United States District Court, E.D. Virginia, Newport News Division.

January 25, 1985.

Stephen M. Smith, Joseph Smith, Ltd., Hampton, Va., for plaintiff.

Larry W. Shelton, Asst. U.S. Atty., Norfolk, Va., for defendant.

OPINION AND ORDER

DOUMAR, District Judge.

The plaintiff, Mary B. Keith, by counsel, brought this suit pursuant to 42 U.S.C. Section 405(g) seeking review of the Secretary's final decision denying her supplemental social security benefits. The matter is before the Court on the Secretary's motion to dismiss the action, and the opposition motion of the plaintiff. The Court DISMISSES the action for the reasons below.

I.

42 U.S.C. § 405(g) not only grants but delineates the requisites for federal district court jurisdiction over this subject matter. The section requires commencing a civil action for judicial review within 60 days of any final decision of the Secretary made after a hearing. At bar, the Secretary's motion challenges federal jurisdiction, asserting that this action was not filed within 60 days. The plaintiff argues the action was timely filed.

The relevant chronological events are noted below:

(a) April 26, 1983 — ALJ decision mailed to plaintiff. Her application for benefits is denied.

(b) June 21, 1983 — "Final Decision" of Secretary rendered. Social Security Appeals Council sends on June 21, 1983 by properly addressed, certified mail, a form letter dated June 10, 1983 to the plaintiff upholding ALJ's decision. Letter indicates plaintiff's right to judicial review within 60 days.

(c) July 27, 1983 — Plaintiff's attorney sends a "physical capacities evaluation" completed by Dr. Phillips to Appeals Council apparently seeking reopening of the Secretary's final decision of June 21, 1983.

(d) August 20, 1983 — Expiration of 60 day time limit from June 21, 1983, date of mailing of notice.

(e) November 4, 1983 — Appeals Council sends plaintiff's attorney a letter noting his of July 27, 1983, yet deciding no new evidence exists to vacate the "Final Decision".

(f) December 30, 1983 — The plaintiff's attorney seeks judicial review and a complaint is "lodged" with the Clerk of Court. Complaint not recorded as "filed" because filing fee not paid, and attorney is notified by Clerk of defect.

(g) January 3, 1984 — 60 days runs from the date of the November 4, 1983 Appeals Council Letter, (e), supra.

(h) January 20, 1984 — This action is recorded as "filed" by Clerk upon receipt of filing fee, 77 days after November 4, 1983 Appeals Council letter denying reconsideration, and 7 months after original "Final Decision".

As can be seen from the sequence of events, the original "Final Decision" of the Social Security Administration (SSA) was rendered June 21, 1983. The critical date for filing a civil complaint seeking review of the SSA decision was August 20, 1983.¹ The instant complaint was filed on January 20, 1984. However, plaintiff's counsel sent to the SSA a "physical capacities evaluation" completed by a doctor, well within the 60 day judicial review filing deadline.² See (c), supra. The SSA did not respond to the July 27, 1983 correspondence until months later, on November 4, 1983, well outside the 60 day time limit. The plaintiff's attorney did not file a court action by August 20, 1983 apparently waiting to hear from the SSA.

The letter of the plaintiff's attorney did not request an extension of time to request reopening nor did the SSA ever indicate it would reopen the denial of benefits. The Court can only presume that the intention of counsel was to obtain some change in the original SSA decision.

In any case, on November 4, 1983, the SSA sent the following letter to counsel:

Dear Mr. Smith:

Re: Ms. Mary B. Keith, 6 Crestwood Circle, Hampton, VA 23669

After the Appeals Council denied the request for review in this case, it received a physical evaluation dated July 11, 1983 from James Phillips, M.D.

The Appeals Council has given careful consideration to the physical capacities evaluation provided by Dr. Phillips but decided that the new evidence does not provide a basis for changing the prior conclusion reached by the Council on June 10, 1983 mailed June 21, 1983. In view of the above, the Appeals Council has decided that there is no basis for vacating its previous action in this case. Accordingly, the decision dated April 26, 1983, stands as the final decision of the Secretary on the claimant's application dated August 27, 1982.

Sincerely /s/ David G. Danziger David G. Danziger Member, Appeals Council

(emphasis added).

The statute involved, 42 U.S.C. § 405(g), provides in part as follows:

(g) Judicial review. Any individual, after any final decision of the Secretary 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 Secretary may allow. ...

The statute provides that in order to obtain a review, a civil action must be commenced within 60 days after the mailing to him of the final decision or within any extension the secretary may allow.

Under the pertinent regulations, the issue is whether the letter of July 27, 1983 constituted or created an extension or whether the letter of November 4, 1983 created a new "final decision."

Under the narrow supplemental Social Security benefit regulations permitting reopening, a claimant may in effect be able to extend or toll the 60 day judicial review time frame laid out in 42 U.S.C. § 405(g). This obtains if the SSA vacates an otherwise final decision by (1) granting an "Extension of time to file action in Federal District Court", 20 C.F.R. 416.1482 (1984), or (2) by reopening an otherwise final decision under the following federal regulations:

§ 416.1482. Extension of time to file action in Federal district court.

Any party to the Appeals Council's decision or denial of review, or to an expedited appeals process agreement, may request that the time for filing an action in a Federal district court be extended. The request must be in writing and it must give the reasons why the action was not filed within the stated time period. The request must be filed with the appeals Council, or if it concerns an expedited appeals process agreement, with one of our offices. If you show that you had good cause for missing the deadline, the time period will be extended. To determine whether good cause exists, we use the standards explained in § 415.411. § 416.1487. Reopening and revising determinations and decisions.

(a) General. 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. However, a determination or a decision made in your case may be reopened and revised. ...

* * * * * *

More importantly, 20 C.F.R. § 416.1488 (1984), entitled "Conditions for Reopening" reads in part:

A determination, revised determination, decision, or revised decision may be reopened—

(a) Within 12 months of the date of the notice of the initial determination for any reason;

(b) Within two years of the date of the notice of the initial determination if we find good cause, as defined in § 416.1489, to reopen the case; ....

* * * * * *

(emphasis added). In this case it does not appear that the plaintiff's attorney ever requested an extension of time pursuant to § 404.982, nor that the Secretary or anyone acting for her extended the time.

The plaintiff's original application was filed August 27, 1982. The language of § 416.1488 states that the SSA may reopen a case for any reason so long as it is sought within 12 months of the initial determination. The operative word in section 416.1488 is "may". The clause does not state that the SSA shall reopen the case. Therefore, reopening of the decision was in the discretion of the SSA. Though counsel properly could have sought to reopen within 12 months, the 60 day judicial review time was continuing to run by without an SSA response. Cf. Friddle v. Heckler, 720 F.2d 24 (8th Cir.1983). On November 4, 1983, the SSA declined to vacate the prior decision. No reopening nor an extension by regulation or statute was effectuated in any way.

The rule is well settled that the letter of November 4, 1983 indicating that a prior final decision will not be vacated or reopened does not constitute a new "final decision", and the critical date runs from the earlier date. Califano v. Sanders, 430 U.S. 99, 108, 97 S.Ct. 980, 985, 51 L.Ed.2d 192 (1977); Teague v. Califano, 560 F.2d 615, 618 (4th Cir.1977); Easley v. Finch, 431 F.2d 1351, 1353 (4th Cir.1970); Parker v. Sec. of HHS, 543 F.Supp. 1041 (E.D.N.Y. 1982); Brantley v. Califano, 478 F.Supp. 613 (M.D.Ga.1979); Gross v. Celebrezze, 246 F.Supp. 66 (D.C.Ind.1965); Kinyoun v. Ribicoff, 194 F.Supp. 528 (W.D.Mo.1961). As the Supreme Court decided in Sanders, supra:

An interpretation that would allow a claimant judicial review simply by filing—and being denied — a petition to reopen his claim would frustrate the congressional purpose, plainly evidenced in § 205(g), 42 U.S.C. § 405(g) to impose a 60-day limitation upon judicial review of the Secretary's final decision on the initial claim for benefits. 20 C.F.R. § 404.951 (1976). Congress' determination so to limit judicial review to the original decision denying benefits is a policy choice obviously designed to forestall repetitive or belated litigation of stale eligibility claims.

403 U.S. at 108, 97 S.Ct. at 986. Admittedly, in Sanders the petition to reopen or reconsider was requested several years after the original final decision and well outside the judicial review time frame. However, theoretically, there is no difference between S...