The opinion of the court was delivered by: WOOD
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 a Courts for the purposes of review, if necessary.
After receiving the above information from the defendant, we were concered 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:
'You have already been notified that your previous application was denied because you were not disabled within the meaning of the law. We have carefully reviewed the previous decision and find no basis for changing it.'
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 questions:
'Q What is the nature and extent of your impairment? 'A Short left leg.'
Whereas on the second application she had stated in answer to the question:
'Q What is your impairment? 'A Effect of left hip due to fall when child, also left kidney out.'
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 ...