Pedroza v. Secretary of Health, Education and Welfare

• Decision Date: 28 February 1974
• Docket Number: Civ. No. 364-72.
• Parties: Benito Marrero PEDROZA, Plaintiff, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant.
• Court: U.S. District Court — District of Puerto Rico

382 F. Supp. 916

Benito Marrero PEDROZA, Plaintiff, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant.

Civ. No. 364-72.

United States District Court, D. Puerto Rico.

February 28, 1974.

COPYRIGHT MATERIAL OMITTED

Harvey B. Nachman, San Juan, P. R., for plaintiff.

Julio Morales-Sanchez, U. S. Atty., for defendant.

OPINION

TOLEDO, Chief Judge.

This action is brought under Section 205(g) of the Social Security Act (hereinafter Act), Title 42, United States Code, Section 405(g), to review the decision of the Appeals Council of the Social Security Administration terminating plaintiff's disability benefits as of May 1970.

On February 18, 1969, the plaintiff applied for a period of disability and monthly disability benefits, Title 42, United States Code, Sections 416(i) and 423, alleging inability to work as of August 10, 1968, due to a spinal column fracture. Disability benefits were awarded as of August 10, 1968. Thereafter, in April 1970, the plaintiff was notified that his disability ceased in March 1970, and that benefits to him and his family would end as of May 1970. The determination of cessation was affirmed after reconsideration in September 1970, whereupon the plaintiff requested and was granted a hearing held in December 1970. The hearing examiner determined that the plaintiff had been continually disabled within the meaning of the law and reinstated retroactively, his period of disability and his monthly disability benefits. Thereafter, the Appeals Council of the Social Security Administration, on its own motion, reviewed the action of the hearing examiner, Title 42, C.F.R., Section 404.947, and on March 7, 1972 it reversed the hearing examiner's decision and determined that plaintiff's disability ceased as of May 1970. In reaching its decision the Appeals Council resorted to 20 C.F.R., Section 404.949 and took a good deal of new medical evidence bearing on both plaintiff's psychological and physiological condition.

At the time the Appeals Council reached its decision to the effect that plaintiff's disability had ceased, the United States Supreme Court had already decided Richardson v. Wright, 405 U.S. 208, 92 S.Ct. 788, 31 L.Ed.2d 151 (1972). In Wright, the Supreme Court was asked to decide whether termination of disability benefits without a prior oral hearing violated due process rights defined in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970). The Supreme Court did not reach the constitutional issue, however, and remanded the case to the Secretary of Health, Education and Welfare (hereinafter Secretary) so that it could be processed according to new termination regulations made effective by the Secretary as of December 27, 1971.

The new regulations include the requirement that a recipient of benefits be given notice of a proposed termination of benefits and the reasons therefor, plus an opportunity to submit rebuttal evidence. The new regulations do not guarantee a pretermination hearing, the Secretary did not guarantee in Wright that such a hearing would be provided in the future, and as we said before, inasmuch as the Supreme Court did not reach the constitutional issue, Wright does not hold that a termination of previously awarded benefits without a hearing is unconstitutional under the Goldberg v. Kelly test.

When the Appeals Council decided in March 1972 to reopen the hearing examiner's decision in this case and thereafter terminate plaintiff's disability benefits, the plaintiff was notified of the Appeals Council's proposed action (Tr. 186); plaintiff was informed as to the new medical evidence that the Appeals Council was going to use to review his case (Tr. 186, 187) and he was told that he had ten (10) days within which to comment on said medical evidence (Tr. 186). After being granted an extension of 15 days (Tr. 184), plaintiff submitted his comments as to the new medical evidence under consideration by the Appeals Council. The plaintiff was not afforded an oral hearing at any time surrounding the action taken by the Appeals Council, and the Secretary's invitation that plaintiff travel to Washington, D. C. in order to secure a hearing before the Appeals Council is, for all practical purposes, considered invalid by this Court. Jeffries v. Olesen, 9 Cir., 121 F. Supp. 463.

Plaintiff's assertion to the contrary notwithstanding, the Appeals Council's action was in keeping with the letter and spirit of the new termination regulations then in effect. The Appeals Council scheduled examinations and relied upon new documentary evidence without affording plaintiff an opportunity to be heard in person — but the new regulations do not call for an oral hearing. If an attack is leveled on the Appeals Council's action in this case, it must be on constitutional grounds. Likewise, if the procedure used by the Secretary in terminating this plaintiff's disability benefits without prior notice in April 1970, before the new regulations on termination were in effect, is attacked constitutional grounds must provide the basis therefor.

Should this Court consider it essential to pass on the question as to whether a recipient of disability benefits is denied his constitutional due process rights when deprived of those benefits without a prior hearing, or the more novel question of whether a recipient is denied those rights under Goldberg v. Kelly, supra, when he is not given a second hearing prior to action taken by the Appeals Council based on new medical evidence, we do not believe it would be necessary to convene a three judge court pursuant to Title 28, United States Code, Section 2282, to decide the constitutional issues. The attack is directed essentially at the failure of the regulations issued under the authority of Title 42, United States Code, Section 405(a) to provide an evidentiary hearing in advance of termination, Mills v. Richardson (2 Cir. 1972), 464 F.2d 995. Although the constitutional issue has been dealt with by Three Judge Courts in two instances, Messer v. Finch (E.D.Ky. 1970), 314 F.Supp. 511; Wright v. Finch (D.D.C.1971), 321 F.Supp. 383, we consider that inasmuch as administrative regulations and not an Act of Congress is under constitutional attack the issue is appropriate for decision by a single judge. Jameson & Co. v. Morgenthan, 307 U.S. 171, 59 S.Ct. 804, 83 L.Ed. 1189 (1938).

The plaintiff has pointed to two recent instances where Federal District Courts have held that the Secretary must, on constitutional grounds, provide disability recipients with a pretermination oral evidentiary hearing. Eldrich v. Weinberger, 361 F.Supp. 520 (April 9, 1973); Williams v. Weinberger, 360 F.Supp. 1349 (June 22, 1973). Defendants reliance on Gil-Pérez v. Secretary of Health, Education and Welfare, 354 F.Supp. 1342, to the effect that Eldrich and Williams are inapplicable to the case at bar is misplaced. An oral evidentiary hearing held subsequent to actual termination does not render the constitutional issue moot unless the hearing results in a benefit award to the plaintiff. Under such circumstances there is no case or controversy within which the Court can fix and thereby deal with the constitutional question of a claimant's rights to a pretermination evidentiary hearing.

In Gil, plaintiff's disability benefits had been reinstated — there was "nothing the Secretary could do but what was already done", at page 1346. In the instant case, plaintiff's disability benefits were terminated without a prior evidentiary hearing in April 1970. It was at that moment that the constitutional issue arose. When the hearing examiner decided subsequently to reinstate those benefits the...