Parker v. Secretary of Health and Human Services
Decision Date | 28 July 1982 |
Docket Number | No. 81 CV 3932.,81 CV 3932. |
Citation | 543 F. Supp. 1041 |
Parties | Elease PARKER, Plaintiff, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant. |
Court | U.S. District Court — Eastern District of New York |
Israel, Adler, Ronca & Gucciardo by Angelo C. Gucciardo, New York City, for plaintiff.
Edward R. Korman, U. S. Atty., E. D. N. Y. by Richard H. Dolan, Asst. U. S. Atty., Brooklyn, N. Y., for defendant.
This is an action for review of a final decision of defendant Secretary of Health and Human Services pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Alleging that plaintiff suffers from lower back and lumbar nerve disability, the complaint seeks review of the Secretary's denial of plaintiff's application for disability insurance and supplemental security income benefits. The action is now before the Court on defendant's motion to dismiss the complaint for want of subject matter jurisdiction, on the ground that plaintiff failed to commence this action within the sixty-day period specified in § 205(g).1
The undisputed facts are as follows. On March 31, 1981, an administrative law judge (ALJ) issued a hearing decision denying plaintiff Elease Parker's application for benefits. Thereafter, plaintiff requested review of the ALJ's decision by the Appeals Council. By letter dated August 11, 1981, after applying for and receiving an extension of time to submit a formal appeal brief, plaintiff's attorney requested that the Appeals Council reverse the ALJ's decision, arguing that the testimony of the treating physician was not accorded the appropriate weight. On September 15, 1981, plaintiff received notice of the Appeals Council's decision on review, dated September 4, 1981, in which the Appeals Council concluded that no basis existed under Social Security Administration regulations for granting her request for review and that "the hearing decision stands as the final decision of the Secretary in your case." The notice also stated as follows:
Plaintiff's attorney also received a copy of the Appeals Council's decision on September 15, 1981, and on the same day wrote to the Appeals Council, enclosing a copy of the August 11 appeal letter and requesting vacation of its decision. After receiving the September 15 letter, including the copy of the August 11 appeal brief, the Appeals Council responded by letter dated October 14, 1981, upholding the ALJ's decision as supported by substantial evidence and deciding "that there is no basis for vacating the previous action in this case." Plaintiff's attorney received the latter notice on October 16, 1981 and commenced the present action on December 3, 1981.
In opposition to the Secretary's motion to dismiss, plaintiff argues that the October 14 letter constituted notice of the Secretary's "final decision" within § 205(g) and that therefore the sixty-day period expired after commencement of this action. Countering, the Secretary argues that plaintiff never applied for an extension of time within which to seek judicial review, that notice of the Secretary's "final decision" was received on September 15, 1981, and that the present action was not commenced within sixty days thereof. Obviously, the issue before the Court is receipt of which letter constituted the trigger of the limitations period imposed by § 205(g).
At the outset, there can be no argument that the sixty-day limitation period is jurisdictional, Whipp v. Weinberger, 505 F.2d 800 (6th Cir. 1974) (per curiam); Small v. Gardner, 390 F.2d 186 (1st Cir.) (per curiam), cert. denied sub nom. Small v. Cohen, 393 U.S. 984, 89 S.Ct. 456, 21 L.Ed.2d 444 (1968); Bomer v. Ribicoff, 304 F.2d 427 (6th Cir. 1962), or that the period begins upon notice of the Secretary's "final decision ... made after a hearing to which plaintiff was a party." 42 U.S.C. § 405(g). To resolve the application of these principles to the present dispute, we need look no further than the decision in Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).
Sanders involved a disability benefits claimant who had filed two claims, seven years apart, alleging the same bases for eligibility. The first claim resulted in an unappealed decision denying the benefits sought, while the second claim was denied under the doctrine of res judicata. Treating the second claim as one for reopening the initial denial, the ALJ rejected it on that basis as well. Thereafter, the claimant filed a civil action for review of the Secretary's decision not to reopen, and the district court dismissed the complaint for lack of subject matter jurisdiction. Holding inter alia that § 205(g) does not authorize judicial review of the Secretary's refusal to reopen claims for social security benefits, the Supreme Court stated as follows:
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