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 civil action in federal
court for review of the Secretary's final decision.
Claimant seeks federal court review of the ALJ's decision on
her 1986 application for disability benefits based on the
Secretary rendering a final decision in her case. She also
asserts that since she requested a reopening of her 1982
application and since the ALJ was directed on remand to determine
and did determine that her disability began on June 26, 1981, her
1982 application was in effect reopened.
Defendant on the other hand argues that this court lacks
subject matter jurisdiction over claimant's 1982 application
because there was no final decision within the meaning of 205(g)
of the Social Security Act, 42 U.S.C. § 405(g). It is further
asserted by defendant that claimant's failure to request a review
of the denial of her 1982 application within the sixty day
deadline, procedurally precluded the Secretary's ruling on her
1982 claim from being a final one and thus was not subject to
review in federal court.
The issues now before the court seem to turn on 1) whether the
ALJ decision of February 25, 1988 was a final decision, and if so
2) precisely what issues were covered by that decision. The
arguments on both sides are well made but the claimant's position
is more persuasive. Claimant's motion for judgment is granted and
a writ of mandamus shall issue to compel the Secretary to pay her
disability benefits retroactive to December 1981. The defendant's
motion to dismiss is denied.
Decision of February 25, 1988
A final decision of the Secretary is one rendered following a
hearing in which the claimant was a party and is reviewable
according to the provisions of the Social Security Act.
Weinberger v. Salfi, 422 U.S. 749, 751, 95 S.Ct. 2457, 2460, 45
L.Ed.2d 522 (1975). Under § 205(g) of the Social Security Act,
42 U.S.C. § 405(g), § 205(g) of the Act exclusively governs
Any individual, after any final decision of the
Secretary made after a hearing to which he was a
party, . . . may obtain a review of such a decision
by a civil action commenced within sixty days after
the mailing to him of notice of such decision or
within such further time as the Secretary may allow.
Claimant's 1986 application for benefits was initially denied,
then put before the Appeals Council which vacated and remanded
the decision citing insufficient information on record and the
ALJ's failure to follow the "treating physician rule" (Item 10,
Exhibit A-C). After a new hearing was held, additional evidence
was put on record and then the same ALJ wrote a new decision
finding claimant entitled to benefits. A subsequent request for
review of the award date from which benefits were to accrue by
the Appeals Council was denied. The denial effectively made the
decision granting benefits a final decision of the Secretary
under the requirements of § 205(g). Califano v. Sanders,
430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Since there was a
final decision concerning claimant's 1986 application, the court
next turns to consider just what issues were covered by that
Issues covered in the ALJ's Final Decision
The final decision, issued February 25, 1988, determined that
claimant's disability eligibility began on July 26, 1981. While
the decision did not discuss claimant's request to reopen her
1982 application and the Appeals Council on March 8 1989,
expressly declined to do so, the ALJ necessarily considered
information that was the basis of the 1982 claim. The questions
arise as to whether the information considered was in fact new,
and in using this information, what was the procedural impact on
claimant's request to reopen her 1982 claim.
a. New Information
According to the Appeals Council order of remand, the ALJ was
hindered in its initial decision because the record was too
limited (Item 10, Exhibit C). In particular the record, which
included mainly a summary of claimant's care by her treating
physician, Dr. Genco, failed to support a finding that claimant
was or was not disabled and did not therefore support by
substantial evidence the ALJ's decision under the requirements of
20 C.F.R. § 404.1520(f). The ALJ was directed to issue a new
decision based on a complete record. Id.
The complete record was to be fashioned by evidence detailing
claimant's symptoms, clinical findings, response to treatment
since her alleged date of disability, hospitalization records
dating back to 1978 and to give due deference to the opinion of
claimant's treating physician, Dr. Genco. Additionally,
vocational information relating to exertional limitations and/or
transferable skills could be used, subject to certain
limitations. Id. The breadth and detail of the information
added, undoubtedly included new and material evidence in the
record. The final decision of the ALJ bears out this assertion
because claimant is found disabled based on the reports of Dr.
Genco, Carrol v. HHS, 705 F.2d 638 (2d Cir. 1983), the treating
neurologist report and the vocational findings, all of which were
either absent earlier or contained insufficient detail (Item 7,
Exhibit 1, pp. 16-17).
b. Procedural Impact
Since the record considered by the ALJ in its final decision
included information dating back to 1978, he explicitly reviewed
information filed with and after the 1982 application. Did the
ALJ effectively reopen the 1982 claim by this action? We think
The Secretary has discretion to reopen prior applications
within four years of an initial determination on a good cause
basis. Under 20 C.F.R. § 404.989(a)(1) "good cause" to reopen
exists if "new and material evidence is furnished." Since
claimant filed within the requisite time, her 1982 application
could be reopened upon meeting the "good cause" requirement.
However, the Secretary's denial of claimant's request, (Item 7,
Exhibit 2), is not considered an initial determination under
20 C.F.R. § 404.903 and therefore not subject to judicial review.
Califano v. Sanders supra. Nonetheless, many Circuits have not
considered the issue ended here, but have examined the record to
determine if a de facto reopening occurred. Coup v. Heckler,
834 F.2d 313, 317 (3rd Cir. 1987), on remand 706 F. Supp. 405
(W.D.Pa. 1989) (district court found that a review of the
administrative record demonstrated a de facto reopening had
occurred); Cleaton v. Secretary, 815 F.2d 295, 298 (4th Cir.
1987) (reopening actually occurs when subsequent duplicate claims
are administratively considered on the basis of merit and
relevant new or material evidence); Jelinek v. Heckler,
764 F.2d 507, 508 (8th Cir. 1985) (a reopening has occurred based on
administrative discretion where disability claim is reconsidered
on the merits); Taylor v. Heckler, 738 F.2d 1112, 1115 (10th
Cir. 1984) (review of the case on the merits through testimony,
exhibits and closing arguments which lead to a formal decision,
constitutes a de facto reopening); Wilson v. Califano,
580 F.2d 208 (6th Cir. 1978) (ALJ reopened earlier decision by
considering new evidence presented at hearing). Administrative
res judicata is waived where a new proceeding "reviews the
entire record . . . and reaches a decision on the merits." Kane
v. Heckler, 776 F.2d 1130, 1132 (3d Cir. 1985).
In this case, the ALJ did review the record, including new and
material evidence and found that claimant had a disability onset
date of June 21, 1981, the very claim in the 1982 application.
Therefore the circumstances of this case demonstrate a de facto
reopening of claimant's 1982 claim. Coup v. Heckler supra.
Writ of Mandamus
Claimant also seeks Mandamus action under 28 U.S.C. § 1361 to
compel the Secretary to issue disability benefits retroactive to
the established disability onset date. A writ of mandamus is
appropriate where defendant owes plaintiff a clear
non-discretionary duty and all other avenues of relief have been
exhausted. Heckler v. Ringer, 466 U.S. 602, 104 S.Ct. 2013, 80
L.Ed.2d 622 (1983).
The ALJ decision of February 25, 1988, specifically stated that
claimant's disability entitlement commenced June 26, 1981 and
that she was entitled to disability insurance benefits from that
date (Item 7, Exhibit 1, p. 19). The Secretary was under a duty
to provide the benefits specifically stated in the final
decision. The award benefit date actually granted, February 1985,
(Item 10, Exhibit E), can not be justified because of untimely
filing. Further, since the Secretary explicitly reopened
claimant's 1982 file and awarded benefits from 1981, a writ of
mandamus would properly compel the Secretary to pay benefits
retroactively to the date of established disability.
The claimant is granted judgment and a writ of mandamus shall
issue compelling the Secretary to provide disability insurance
benefits retroactive to the disability onset date of June 26,
1981. The defendant's motion to dismiss for failure to state a
claim upon which relief can be granted is denied.
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