Phillip v. Ribicoff
| Decision Date | 13 December 1962 |
| Docket Number | Civ. A. No. 30585. |
| Citation | 211 F. Supp. 510 |
| Parties | Blanche PHILLIP v. Abraham A. RIBICOFF, Secretary of Health, Education, and Welfare. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
W. J. Krencewicz, Shenandoah, Pa., for plaintiff.
Drew J. T. O'Keefe, U. S. Atty., Philadelphia, Pa., By: Merna B. Marshall, for defendant.
The question before the Court is: Was the instant complaint filed within sixty days of the final decision of the Secretary of Health, Education and Welfare as required by Section 205(g) of the Social Security Act, 42 U.S.C.A. § 405 (g)?
On November 30, 1961, the plaintiff filed a complaint in this Court under the provisions of Section 216(i) and Section 223 of the Social Security Act, as amended, for the purpose of establishing a period of disability and for disability insurance benefits. On February 5, 1962, the Secretary of Health, Education and Welfare, having governmental jurisdiction of the issues involved, through the United States Attorney, filed a motion to dismiss the complaint on the grounds that the Court lacked jurisdiction of the issue; that the action was barred by the time limitation specified in Section 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g); and, in general terms, that the complaint did not state a cause of action upon which the Court could grant relief. Attached to that motion was an affidavit of Joseph E. McElvain, Chairman of the Appeals Council, Office of Hearings and Appeals, Social Security Administration, Department of Health, Education and Welfare.
We heard argument on the motion to dismiss and thereafter, on May 14, 1962, filed a memorandum and order, D.C., 30 F.R.D. 343, in which we concluded that the motion to dismiss should be denied without prejudice, since it appeared after hearing and argument that plaintiff had not had a full opportunity to answer the affidavit filed on behalf of the Government. We stated in that order that any relevant information could be filed within thirty days from that date and that thereafter we would consider the motion to dismiss as a motion for summary judgment. Thereafter, on June 7, 1962, plaintiff filed a motion for summary judgment with an affidavit executed by her attorney, and on August 20, 1962, the defendant moved for summary judgment. Notwithstanding our opinion as expressed originally and throughout these proceedings that the position of the Government was well taken, in the interests of justice, we have given the plaintiff every possible opportunity to refute their position either legally or factually and accordingly held a further hearing on August 29, 1962 on the issues involved.
There still being some doubt in our mind, and with the hope that if it were legally possible so to do, this woman should have an opportunity to have her case heard before this Court on the merits as provided by Section 405(g), we directed the Government to file with the Court the original or verified copies of the original claim for disability and a copy of the application for benefits filed by the plaintiff on November 2, 1960. This was done and has now been docketed in the Office of the Clerk of Courts for the purposes of review, if necessary.
After receiving the above information from the defendant, we were concerned with whether or not the second application filed was, as contended by the defendant, based on the same factual circumstances as contained in the original application.
On March 7, 1961, the defendant, through its authorized agents, had stated in writing to the plaintiff:
This statement caused the Court to be concerned as to whether or not the two applications were in fact the same since on the original application plaintiff had stated in answer to the question:
Whereas on the second application she had stated in answer to the question:
Since we were considering the matter on motions for summary judgment the Court was of the opinion that there might be some factual problem raised if it did not appear from the record that on the first application the hearing examiner had not considered all of the facts raised in the second application and precisely whether or not the addition of "also left kidney out" had been considered originally.
We accordingly directed defendant to again file additional certified copies of the record with us, which they have done, and which we have carefully considered. Furthermore, we directed that copies of all documents presented to the Court during this extended litigation be served upon plaintiff prior to final hearing and argument. This was held on December 4, 1962, at which time further briefs and arguments on behalf of the plaintiff and the Government were presented.
An examination of the record discloses the following:
The original hearing examiner stated in his report, inter alia:
It is obvious to the Court that on the original application the hearing examiner did consider not only the condition of her leg but the removal of her kidney and we can only conclude, as did the Appeals Council, that no new issue was raised by her second application. We are not presently considering the merits of her claim and whether or not, were we able to hear the matter de novo, we would grant her the benefits requested or remand the case. The issue before us is one of procedure alone raised by the Act of Congress and whether or not her complaint is filed within the statutory provisions of the Social Security Act and, more particularly, Section 205(g), supra.
For the purposes of clarification and to review the chronology of events, we find that following the original application the hearing examiner rendered a decision denying benefits to the plaintiff on April 7, 1960. On September 6, 1960, the Appeals Council denied her request for review and mailed to her its order with a very definitive letter stating, inter alia, that she had sixty...
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Fyfe v. Finch
...decided June 30, 1969); Moore v. Celebrezze, 252 F.Supp. 593 (E.D.Pa.1966), affirmed 376 F.2d 850 (3d Cir. 1967); Phillip v. Ribicoff, 211 F.Supp. 510 (E. D.Pa.1962), affirmed 319 F.2d 530 (3d Cir. Turning to this case, it is apparent that with his application for disability insurance benef......
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Domozik v. Cohen
...was followed in Moore v. Celebrezze, 252 F.Supp. 593 (E.D.Pa.1966), aff'd per curiam, 376 F.2d 850 (3d Cir. 1967), and Phillip v. Ribicoff, 211 F. Supp. 510 (E.D.Pa.1962), aff'd per curiam, 319 F.2d 530 (3d Cir. Appellant asks us to disregard the "res judicata" regulation, and to distinguis......
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Coulter v. Weinberger
...a per curiam opinion cited Hobby v. Hodges, 215 F.2d 754 (10th Cir. 1954), and affirmed a district court opinion reported at 211 F.Supp. 510 (E.D.Pa.1962). However, the district court's decision was somewhat equivocal and appeared to be based in part on the merits of the case. In Shelton v.......
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Sangster v. Gardner
...1963), cert. den. 374 U.S. 487, 83 S.Ct. 1868, 10 L.Ed.2d 1043; Bomer v. Ribicoff, 304 F.2d 427, 429 (CA 6, 1962); Phillip v. Ribicoff, 211 F.Supp. 510, 513 (E.D.Pa.1962), aff'd 319 F.2d 530 (CA 3, 1963); Hatter v. Ribicoff, 199 F.Supp. 654, 655 (E.D.Oklahoma 1961); Kindig v. Ribicoff, 202 ......