United States District Court, Eastern District of New York
August 14, 1991
PATRICIA FERRARO, PLAINTIFF,
SECRETARY OF THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, DEFENDANT.
The opinion of the court was delivered by: Wexler, District Judge.
In the above-referenced action, plaintiff Patricia Ferraro
("plaintiff") originally sought a review of a final determination by the
Secretary of Health and Human Services ("Secretary") which denied
plaintiff's application for disability insurance benefits, pursuant to the
Social Security Act, 42 U.S.C. § 405(g). Defendant Louis Sullivan,
the Secretary, moves to remand this case for a new hearing. Plaintiff
opposes the Secretary's motion to remand, and seeks an order affirming the
granting of disability benefits sought by plaintiff's application. After
a brief review of the background facts, the Court will turn to consider
the parties' current applications.
Plaintiff initially filed for disability benefits with Health and
Human Services in April of 1977. That application was denied. On July
11, 1977, the denial was affirmed on reconsideration. At that point,
plaintiff did not appeal the denial any further.
On August 31, 1988, plaintiff refiled for disability benefits and
alleged an onset date for her disability of June 6, 1975. That
application was denied on February 28, 1989, and the denial was affirmed
on reconsideration. Plaintiff filed a timely request for a hearing, which
was granted and ultimately heard by Administrative Law Judge Joseph
Halpern (the "ALJ"). In a decision dated September 26, 1989, the ALJ
found, inter alia: (1) that plaintiff last met the insured status of the
Social Security Act for disability purposes on December 31, 1980; (2)
that plaintiff was disabled due to her orthopedic impairments and was
entitled to a period of disability from June 5, 1975 to May 31, 1978; (3)
that plaintiff became disabled again on October 19, 1982, and was
entitled to a new period of disability commencing on that date; and (4)
that finding the plaintiff disabled from June 6, 1975 to March 8, 1978
extended her last insured date to March 31, 1983, which was subsequent to
the October 19, 1982 date from which she had proven disability. The ALJ's
decision does not indicate whether or not he had knowledge of plaintiff's
initial application for benefits in April 1977. This Court is unable to
review the complete record of the administrative hearing because the
Secretary cannot locate the audiotape of the hearing, and therefore no
On February 5, 1990, the Appeals Council reopened the ALJ's decision
on its own initiative, pursuant to 20 C.F.R. § 404.988. In a letter
dated February 20, 1990, plaintiff challenged the Appeals Council's
authority to review a hearing decision sua sponte 131 days after the
decision was rendered. On March 30, 1990, the Council found that
plaintiff's rejected application of April 1977 was a final and binding
determination which could not be reopened and that plaintiff's insured
status was improperly extended beyond December 31, 1980. In sum, the
Council found that plaintiff was not entitled to benefits for either
period of disability.
In the case at bar, plaintiff renews her contention that the Appeals
Council did not have jurisdiction to reopen the ALJ's decision. The
Appeals Council is permitted to review, sua sponte, a decision by an ALJ
pursuant to 20 C.F.R. § 404.969. That regulation states:
Anytime 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. If the Appeals Council does review
the hearing decision or dismissal, notice of the action will be
mailed to all parties at their last known address.
20 C.F.R. § 404.969 (1990). In the case at bar, the Appeals Council
reopened the ALJ's decision two months after the sixty-day limit had
run. Plaintiff contends that the Appeals Council exceeded its authority,
and requests a reinstatement of the ALJ's decision.
The Secretary, on the other hand, argues that the Appeals Council
properly reopened the ALJ's decision pursuant to 20 C.F.R. § 404.988.*fn1
The denial of plaintiff's initial application for disability
benefits on February 28, 1989, signified the "initial determination" of
plaintiff's claim for the purposes of the regulation. The Appeals Council
reopened the ALJ's decision less than one year later on February 5,
The courts of appeals which have directly addressed the issue at bar
have rendered inconsistent decisions. The First and Eleventh Circuits
have held that the Appeals
Council may not reopen a social security disability claim on its own
initiative more than sixty days after the ALJ's decision is issued. See
McCuin v. Secretary of Health and Human Servs., 817 F.2d 161, 174 (1st
Cir. 1987); Butterworth v. Bowen, 796 F.2d 1379, 1386 (11th Cir. 1986).
However, the majority of circuits have supported the Secretary's
interpretation of the regulations by allowing the Appeals Council to
reopen a case within twelve months, without cause, pursuant to
20 C.F.R. § 404.988. See Zimmerman v. Heckler, 774 F.2d 615, 617 (4th
Cir. 1985); Cieutat v. Bowen, 824 F.2d 348, 354-55 (5th Cir. 1987); Fox
v. Bowen, 835 F.2d 1159, 1163 (6th Cir. 1987); Munsunger v. Schweiker,
709 F.2d 1212, 1216 (8th Cir. 1983); Overend v. Sullivan, 879 F.2d 673,
675 (9th Cir. 1989); Descheenie on Behalf of Descheenie v. Bowen,
850 F.2d 624, 627 (10th Cir. 1988); Sheppard v. Sullivan, 906 F.2d 756,
758 59 (D.C.Cir. 1990).
In Gutierrez v. Bowen, 898 F.2d 307 (2d Cir. 1990), the plaintiff
claimed that the Appeals Council's decision to reopen her favorable
administrative decision sua sponte was improper. Although the Second
Circuit noted that the First Circuit's rationale in McCuin was
"persuasive", id. at 310, the Court did not take the opportunity to
affirmatively decide the issue presented.
This Court finds that the sixty-day limit for sua sponte review of an
ALJ's decision does not impact upon or restrict the Appeals Council's
right to reopen a case pursuant to 20 C.F.R. § 404.988. Thus, this
Court agrees with the majority of the jurisdictions cited above which
permit the Appeals Council to reopen cases within twelve months of the
date of the initial determination for any reason, or within four years if
there is "good cause." See 20 C.F.R. § 404.988. In particular, this
Court notes the decision in Fowler v. Secretary of Health and Human
Services, No. 87-0056, 1988 WL 46109, 1988 U.S. Dist. LEXIS 16674
(E.D.N.Y. April 25, 1988), in which the court reasoned:
Having considered the language of the regulations and in
deference to the Secretary's interpretation of his agency's
own enactments, I agree with the holding in Cieutat . . .
that there is no inconsistency between the regulations relating to
"review" and those relating to "reopenings" and further that the
Secretary's interpretation of the regulations is consistent
with the . . . language and reasonable.
Id. 1988 WL 46109 at 5, 1988 U.S. Dist. LEXIS 16674 at 5 (citation
omitted); see also Campbell v. Bowen, No. 87-2229, 1988 WL 68813, 1988
U.S. Dist. LEXIS 6430 (E.D.N.Y. June 2, 1988).
Upon motion of the Secretary, a district court may remand a case to
the ALJ for further review "upon a showing that there is new evidence
which is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding."
42 U.S.C. § 405(g). The legislative history of section 405(g)
indicates that the loss of a hearing transcript would constitute good
cause to remand. In fact, it has been noted that:
Where . . . the tape recording of the claimant's oral
hearing is lost or inaudible, or cannot otherwise be
transcribed . . . good cause would exist to remand the
claim to the Secretary for appropriate action to
produce a record which the courts may review under
205(g) of the act.
H.R.Conf.Rep. No. 944, 96th Cong., 2d
Sess. 59, reprinted in 1980 U.S.C.C.A.N.
Without a transcript of the hearing before the ALJ, this Court is
unable to scrutinize the record in its entirety, and cannot address the
issue of whether res judicata precludes plaintiff from receiving
disability benefits. Accordingly, in light of the discussion above, the
appropriate remedy is a remand of the case with instructions to conduct an
administrative hearing de novo.
For the reasons stated above, this case is hereby remanded to the
Secretary for a rehearing before an ALJ.