Welch v. Heckler
| Decision Date | 30 December 1986 |
| Docket Number | No. 86-5409,86-5409 |
| Citation | 808 F.2d 264 |
| Parties | , Unempl.Ins.Rep. CCH 17,121 WELCH, Almon E. v. HECKLER, Margaret, Secretary of Health and Human Services. Appeal of SECRETARY OF HEALTH & HUMAN SERVICES. |
| Court | U.S. Court of Appeals — Third Circuit |
Mack A. Player (argued), Timothy B. Haney, Asst. U.S. Attys., Harrisburg, Pa., Richard K. Willard, Asst. Atty. Gen., Edward S.G. Dennis, Jr., U.S. Atty., William Kanter, Howard S. Scher, Attys., Appellate Staff, Civil Div., Dept. of Justice, Washington, D.C., for appellant.
Susan E. Hartley (argued), Paul G. Riffle, Riffle and Foster, Athens, Pa., for appellee.
Before WEIS, MANSMANN and HUNTER, Circuit Judges.
Appellee Almon E. Welch applied for disability benefits on June 25, 1982. The Secretary denied these benefits to Welch both initially and on reconsideration. Welch requested and was granted a hearing before an Administrative Law Judge ("ALJ"). After a de novo consideration of the case, the ALJ ruled on June 14, 1984 that Welch was disabled within the meaning of the Act. On August 11, 1983, the Appeals Council notified Welch that, pursuant to 20 C.F.R. Secs. 404.969 and 404.970 (1986), it had decided on its own motion to review the ALJ's decision. After a de novo review of the record (including additional evidence submitted by Welch), the Appeals Council ruled on August 29, 1984 that Welch was We are called upon in this case to determine whether "[t]he findings of the Secretary [are] ... supported by substantial evidence." 42 U.S.C. Sec. 405(g). Before examining the administrative record to determine whether the Secretary's decision is supported by substantial evidence, we must resolve two threshold questions. First, we must determine whether the Secretary is barred from seeking appellate review due to his failure to raise objections to the magistrate's report within the prescribed time period. Second, we must determine whether, when the ALJ and Appeals Council are in conflict, 42 U.S.C. Sec. 405(g) directs us to review the ALJ's decision or the Appeals Council's decision for substantial evidence.
not disabled within the meaning of the Act, thereby reversing the ALJ. The decision of the Appeals Council became the final decision of the Secretary. Welch then brought this action in United States District Court for the Middle District of Pennsylvania under 42 U.S.C. Sec. 1383(c)(3) (1983), incorporating by reference 42 U.S.C. Sec. 405(g) (1983), to review the final determination by the Secretary. The case was submitted on cross motions for summary judgment. On March 18, 1986, the Magistrate issued a report recommending that the Secretary's motion for summary judgment be denied and that Welch's motion be granted. The district court adopted the Magistrate's report, and on April 16, 1986, granted Welch's motion for summary judgment, thereby affirming the ALJ and reversing the Appeals Council. This appeal followed.
The following "Notice" was attached to the magistrate's report:
Any party may object to the report and recommendation within fifteen (15) days from the date of this notice by filing with the Clerk written exceptions setting forth in full the basis of the exceptions. The exceptions may be accompanied by a memorandum or brief in support thereof.
The filing of exceptions is not required and, if exceptions are not filed, it will be considered that the party or parties intend to rely on the arguments made in the briefs previously filed.
Appellee Welch argues that, by the terms of this notice, the Secretary waived his right to object to the magistrate's findings by not filing exceptions with the magistrate in the first instance. We will not hold that the Secretary has waived his right to object to the magistrate's findings because, under the plain language of the magistrate's notice, the filing of exceptions was permissive, not mandatory. While it is within the power of this appellate court to condition the taking of an appeal in these circumstances upon a timely filing of objections, see Thomas v. Arn, --- U.S. ----, 106 S.Ct. 466, 471, 88 L.Ed.2d 435 (1985), we find that it would be inappropriate to do so in this case, where the language of the magistrate's report did not put the Secretary on notice that he would be waiving his appellate rights by not filing objections below. Cf. Thomas v. Arn, 106 S.Ct. at 469 ). 1
The second threshold question we must resolve involves the scope of our review of disability claims under the Social Security Act. Under 42 U.S.C. Sec. 405(g), the federal courts are empowered to review "any final decision of the Secretary," to determine whether the Secretary's factual findings are supported by "substantial evidence." In most disability cases, we review the decision of the ALJ, as approved by the Appeals Council, to determine whether it is supported by substantial evidence. In the present case, the Appeals Council, on its own motion, undertook a de Appellee Welch argues that, in his case, the Appeals Council's decision is not entitled to deferential judicial review as a "final decision," because the Council's de novo review of his application for disability benefits was not authorized by the applicable regulations. Pursuant to 20 C.F.R. Sec. 404.969, "[a]nytime within 60 days after the date of a hearing decision or dismissal, the Appeals Council itself may decide to review the action that was taken." Welch argues that Sec. 404.969 is modified by 20 C.F.R. Sec. 404.970(a), which provides that
novo review of appellee's case and reversed the ALJ. Thus, we must determine whether, when the ALJ and Appeals Council disagree, it is the decision of the ALJ or the decision of the Appeals Council that must be evaluated under the "substantial evidence" standard. We conclude that, because the regulations clearly designate the Appeals Council as the final administrative arbiter of all disability claims, see 20 C.F.R. Sec. 404.981 (1986), it is the Council's decision that is the "final decision" of the Secretary, and is thus the decision that must be reviewed by us under the substantial evidence standard. Under the regulations, the Secretary has delegated his authority to make "final decisions" to the Appeals Council. Thus, the ALJ's decision does not become "final" and eligible for judicial review until the Appeals Council has in some way approved that decision. Clearly then, a decision that is expressly disapproved by the Appeals Council cannot be deemed a "final decision" by the Secretary.
The Appeals Council will review a case if--
(1) There appears to be an abuse of discretion by the administrative law judge;
(2) There is an error of law;
(3) The action, findings or conclusions of the administrative law judge are not supported by substantial evidence; or
(4) There is a broad policy or procedural issue that may affect the general public interest.
According to Welch, the Appeals Council is only permitted to initiate review of ALJ decisions that fall into one of the four categories listed in Sec. 404.970(a), none of which are applicable to his case. 2 We reject Welch's reading of the regulation and join the nine circuits that have considered this issue 3 in holding that Sec. 404.969 provides the Appeals Council with the authority to review any ALJ decision for any reason, while Sec. 404.970(a) merely notifies claimants of the kinds of cases that the Appeals Council "will" review. See Bauzo v. Bowen, 803 F.2d 917 (7th Cir.1986); Mullen v. Bowen, 800 F.2d 535 (6th Cir.1986) (en banc); Fierro v. Bowen, 798 F.2d 1351 (10th Cir.1986); Deters v. Secretary of Health, Education and Welfare, 789 F.2d 1181 (5th Cir.1986); Parker v. Bowen, 788 F.2d 1512 (11th Cir.1986) (en banc); Kellough v. Heckler, 785 F.2d 1147 (4th Cir.1986); Taylor v. Heckler, 765 F.2d 872 (9th Cir.1985); Lopez-Cardona v. Secretary of Health and Human Services, 747 F.2d 1081 (1st Cir.1984) (per curiam); Baker v. Heckler, 730 F.2d 1147 (8th Cir.1984).
We adhere to the majority view on this issue for a number of reasons. We believe that the position taken by the Secretary is not only consistent with the wording of the regulations, but is a far more reasonable We must now determine whether or not the decision of the Appeals Council is supported by substantial evidence. Almon E. Welch was born on January 5, 1937. He has an eleventh grade education, and was employed as a linotype operator, or printer, for nearly 27 years. Welch has had no occupational experience or vocational training outside of the printing field. He has a history of back pain. In addition to his back problems, Welch suffers from bilateral deafness. It is not clear from the record whether his hearing loss is total, but it does seem to be severe.
interpretation of those regulations than appellee's. Section 404.969 states that within sixty days of a hearing decision or dismissal, "the Appeals Council itself may decide to review the action that was taken." No reference in this section is made to the four categories listed in Sec. 404.970. Instead, a broad mandate for review is provided to the Council. If we were to adopt appellee Welch's view, we would be doing more than narrowing the scope of Sec. 404.969--we would be reading the section out of existence. If the Appeals Council is only entitled to initiate review under the circumstances listed in Sec. 404.970(a), there is no need for Sec. 404.969 and the section is therefore a nullity. Finally, we are convinced by the Sixth Circuit's exegesis of the history of Secs. 404.969 and 404.970, which reveals that Congress clearly intended that these two provisions should operate independently. See Mullen, 800 F.2d at 543-45
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