The opinion of the court was delivered by: Curtin, District Judge.
Plaintiff, Alice M. Guy, brings this action for summary
judgment against defendant, Secretary of Health and Human
Services ("Secretary"), under 42 U.S.C. § 405(g) and pursuant to
Rule 56 of the Federal Rules of Civil Procedure on the grounds
that there is no genuine issue of material fact and she is
entitled to judgment as a matter of law. Defendant moves to
dismiss the action pursuant to Rule 12(b) of the Federal Rules of
Civil Procedure on the grounds that this court lacks subject
matter jurisdiction and that plaintiff has failed to state a
claim upon which relief can be granted.
Claimant initially filed for disability benefits in January
1980 alleging an onset disability date of April 5, 1978. Claimant
was authorized to return to work, avoiding heavy lifting on July
15, 1978. Her application for benefits was denied on September 9,
1980, (Item 10, Exhibit A, p. 3).
A second claim for disability and disability insurance was
filed, pro se, on February 23, 1982, alleging a disability
onset date of June 26, 1981. The application was denied on June
2, 1982 and no further action was taken by plaintiff, (Item 7, p.
Later, on February 21, 1986, plaintiff filed again for
disability benefits based on the June 26, 1981 onset date. She
specifically requested that her 1982 file be reopened and a
revised determination be made. A hearing was held in Buffalo, New
York, on July 1, 1986 in which the claimant and her husband
testified on her behalf and in which she was represented by
counsel. Defendant states that claimant's 1986 application was
denied on October 1, 1986 and upon reconsideration on December
24, 1986. Id.
According to the ALJ records available to the court, the 1986
application for benefits was denied on July 16, 1987, (Item 10,
Exhibit A). The discrepancy between defendant's and claimant's
assertion, is unexplained. Nonetheless, the ALJ's adverse
decision was put before the Appeals Council by letter dated July
20, 1987. Id., Exhibit B.
On September 29, 1987, the Appeals Council noted that in the
decision the ALJ had declined to follow the "treating physician
rule" and had failed to discuss why he did not find the treating
physician's opinion persuasive. It concluded that under
20 C.F.R. § 404.970(a)(2) the ALJ's decision reflected an error of law.
Id., Exhibit C, p. 2. Therefore the Appeals Council granted the
request for review by vacating the 1986 hearing decision and
pursuant to 20 C.F.R. § 404.977, remanded the case to the ALJ for
a new hearing and a new decision in accordance with Council
The ALJ was requested to obtain detailed information from
claimant's treating physician, Dr. Genco, to consider adding
information by a vocational expert and to determine if claimant
"is under a `disability' which began on or before December 31,
1986," Id., Exhibit C, p. 3, the last date for which disability
insured status requirements are met. The ALJ was directed to
articulate why the opinion of Dr. Genco was or was not persuasive
in light of Schisler v. Heckler, 787 F.2d 76 (2d Cir. 1986).
The new hearing was held before the same ALJ on February 16,
1988 and a new decision was rendered effective February 25, 1988.
Regarding claimant's 1986 application the ALJ held: 1) claimant's
impairments did not meet or equal the criteria of the Listing of
Impairments under Appendix 1, Subpart P, Regulation No. 4, 2)
claimant's impairments or combination thereof prevented her from
performing her previous work and 3) claimant's ability to perform
sedentary work is so constrained that the economy could not
provide her with a significant number of job alternatives.
Consequentially the ALJ found claimant was "disabled" under
20 C.F.R. § 404.1520(f) and entitled to disability benefits as of
June 26, 1981 (Item 7, Exhibit 1).
By letter dated March 28, 1988 claimant learned of her specific
disability entitlement due to the February 25, 1988 decision of
the ALJ (Item 10, Exhibit D). This entitlement was subject to
timely appeal. Id. When claimant's award benefits only dated
back to February 1985, her attorney requested a timely review of
the decision and the effective award date. The attorney's April
4, 1988 letter specifically questioned why the award certificate
did not reflect the June 26, 1981 onset date of disability that
was established by the ALJ's last decision. Id., Exhibit E.
The Appeals Council issued an order dated March 8, 1989
rejecting claimant's request for review (Item 7, Exhibit 2). The
Council found that there was no basis under the relevant
regulations to grant the request for review since the good cause
requirements were not met. Specifically the Appeals Council found
that the medical reports in the current report duplicated reports
originally included in the 1982 application and that while new,
did not review any material fact or item of evidence not apparent
from the previous claim. Id.
Claimant was also informed that the denial of claimant's
request for review meant that the ALJ's February 25, 1988
decision became the final decision of the Health and Human
Services ("Secretary") in her case. Id. Claimant was entitled
to and by this action has timely filed a ...