UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: June 4, 1970.
SECRETARY OF HEALTH, EDUCATION AND WELFARE, UNITED STATES OF AMERICA, APPELLANT
Kalodner and Van Dusen, Circuit Judges, and Fullam, District Judge.
Opinion OF THE COURT
KALODNER, Circuit Judge.
This is an appeal by the Secretary of Health, Education and Welfare from an Order denying the Secretary's motion for summary judgment; reversing the Secretary's decision not to reopen a prior final decision denying claimant disability insurance benefits; and remanding the cause to the Secretary with directions to grant claimant the relief she sought.
The record discloses that claimant, Agatha Shelton, first filed an application to establish a period of disability and for disability benefits under the Social Security Act*fn1 on April 2, 1958. At that time, claimant reported her birthdate to be August 5, 1907, and stated that she had been unable to work due to severe heart and sight impairments since November 6, 1957. Following an investigation, the Social Security Administration ("Administration") determined that claimant had fulfilled all requirements for disability insurance, including disability as of November 30, 1957, but advised her she had failed to affirmatively establish that she had attained age 50, as then required by Section 223(a) (1) (B) of the Social Security Act.*fn2
Unable to obtain a birth certificate, claimant attempted to establish her age by providing a statement from her sister that claimant was born on August 5, 1907, and explained that a different and later date on her marriage record had been erroneously entered by her husband. However, a 1945 voter registration uncovered by an Administration employee showed claimant's birthdate as August 5, 1911, which was consistent with the date on her marriage record.
Claimant also stated that a family Bible in the possession of a nephew, Onrie Geter (or Jeter), would establish her correct birthdate. When Administration efforts to obtain a copy of the Bible, or to otherwise verify claimant's birthdate, proved unsuccessful, claimant was notified on February 21, 1959, that although she had satisfied all other requirements for entitlement, "The evidence submitted by you is not sufficient to establish your attainment of age 50. Therefore, no benefits may be paid to you at this time."
No action was taken by claimant to obtain review of this initial determination and, pursuant to Social Security Administration regulations, it became the final disposition of the matter.*fn3
Thereafter, on September 29, 1960, claimant filed a second application for disability benefits after Congress, in that same month, amended Section 223 of the Act to delete the age 50 requirement. Other than a second statement from her sister, claimant offered no new evidence to establish her date of birth.*fn4 Claimant asserts that at the time she filed her second application, she was advised by an Administration employee that she would receive back benefits for the period July 1958*fn5 to October 1960, in the total amount of $1988.00, at "anytime" that she could verify her birthdate.
In a statement filed December 7, 1960, claimant reported that she was unable to supply evidence of her date of birth "at the present time," and requested that her application be processed under the congressional amendment dispensing with the age qualification.*fn6 On January 10, 1961, claimant submitted a second statement in which she reported that she was unable to secure additional proof of her age, and asked that her "claim" be processed "effective 11/60 for now."
Claimant was notified on March 15, 1961, that she would receive benefits retroactive to November 1960, the effective date of the amendment. No reconsideration of this decision was sought by claimant, and she began receiving, and continues to receive, monthly benefits under her second application.
There the matter remained until June 1967, when claimant submitted a 1910 census record which showed only that one Henrietta Jeter, then six years old, was a boarder in the Liles household. Additionally, claimant submitted a photocopy of a page from the Jeter family Bible, which showed a birthdate of August 5, 1904, beside an illegible name. On October 24, 1967, the Administration advised the claimant that on the basis of this "evidence" it had established her date of birth as August 5, 1904.
Claimant thereupon requested payment of benefits from July 1958 to October 1960, based upon her 1958 application and the newly submitted evidence of her date of birth.*fn7 On December 13, 1967, the Administration advised claimant that her request for reconsideration had been denied, stating that:
"Although you have presented evidence in 1967 that establishes your date of birth as August 5, 1904, more than four years have passed since February 21, 1959, and March 15, 1961, and the determination made on those dates may not be reopened."*fn8
Claimant, through counsel, requested and was granted a hearing on the Administration decision not to reopen her claim. The Hearing Examiner denied claimant's request upon his conclusion that the Administration had made every reasonable effort to assist claimant in establishing her birthdate, that she had not been misled or misinformed to her detriment concerning her rights, and that based on the record before him, claimant was not entitled to a reopening.
The Appeals Council, acting for the Secretary, denied claimant's timely request for review on June 28, 1968. Thereafter, on August 27, 1968, claimant commenced the instant civil action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), in the District Court for the Western District of Pennsylvania, to review the Secretary's decision refusing to reopen and revise his initial denial of benefits.
The Secretary filed an Answer in which he moved for summary judgment after averring that his action was supported by "substantial evidence" and was "conclusive."
The District Court entered an Order on May 6, 1969 in which it denied the motion for summary judgment; reversed the Secretary's decision, and remanded the cause to the Secretary with directions to grant claimant the relief she sought. The District Court, in its Order, found that the Secretary's decision "is not supported by substantial evidence."
On this appeal, the Secretary urges that the District Court was without jurisdiction to review his June 28, 1968 decision, challenged by the Complaint.*fn9 That decision, he contends, was merely a refusal to reopen his prior dispositions in February 1959 and March 1961, and was not an appealable order. In support of his contention that the District Court was without jurisdiction, the Secretary cited our ruling to that effect in McCunney v. Gardner, 3 Cir., 374 F.2d 110 (1967), and the Ninth Circuit's similar holding in Filice v. Celebrezze, 319 F.2d 443, 445 (1963).
Alternatively, the Secretary contends that assuming existence of jurisdiction, claimant did not comply with the regulatory scheme for reopening a final decision inasmuch as his Regulations, 20 C.F.R. §§ 404.957, 404.958*fn10 adopted pursuant to statutory authority,*fn11 provide that his initial or reconsidered determinations may only be reopened within four years upon a showing of good cause, or, after more than four years only upon a showing of fraud, clerical error or error on the face of the evidence, and not merely upon the production of new evidence. Here, the Secretary says, claimant's application for reopening was filed in June 1967 -- more than eight years after his initial determination in February 1959 denying claimant social security benefits, and more than six years after his March 1961 decision allowing claimant benefits retroactive only to November 1960. Further, says the Secretary, claimant has failed to make a showing of fraud, clerical error or error on the face of the evidence, and her 1967 request for reopening his 1959 and 1961 determinations was based on "new evidence" impermissible under the Regulations.
On the score of our holding in McCunney that federal courts lack jurisdiction to review the Secretary's refusal to reopen his prior determination, we note that the Second Circuit had earlier, in Cappadora v. Celebrezze, 356 F.2d 1 (1966) ruled that the Secretary's refusal to reopen a denial of benefits was reviewable by the federal courts for abuse of discretion under the Administrative Procedure Act, § 10(e),*fn12 and that the Ninth Circuit subsequently, in Kasparek v. Gardner, 409 F.2d 214, 215 (1969), took cognizance of Cappadora, and pursuant thereto, considered and decided the issue whether the Secretary had abused his discretion in there denying reopening.*fn13
Assuming that the Administrative Procedure Act authorizes judicial review limited to the issue of abuse of discretion on the Secretary's part in denying reopening of his prior determination, we are of the opinion that the record fails to establish that the Secretary abused his discretion in refusing to reopen his 1959 and 1961 prior determinations.
Claimant here did not request reopening of the stated determinations within four years as required by the Regulations and she failed to make a showing of good cause for her failure to do so. As the Secretary points out, her request for reopening was filed in June 1967 -- more than eight years after the Secretary's initial determination in February 1959 denying her social security benefits, and more than six years after his March 1961 decision allowing her benefits retroactive only to November 1960.
We note that in Cappadora the Court found no abuse of discretion in the Secretary's denial of a request for reopening because the claimant there had filed it "more than four years after the initial determination and thus out of time under the applicable regulation" and "no good cause for reopening was shown." 356 F.2d 7.
Finally, we find, on review of the record, that claimant utterly failed to make a showing of fraud, clerical error or error on the face of the evidence within the purview of Regulations §§ 404.957 and 404.958, so as to establish "good cause" for her request for reopening of the Secretary's 1959 and 1961 determinations.
For the reasons stated the Order of the District Court will be reversed and the cause remanded to the District Court with directions to grant the Secretary's motion for summary judgment.
The parties to this appeal will bear their respective costs.