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COOPER v. BOWEN

October 15, 1986

IRENE COOPER
v.
OTIS R. BOWEN, Secretary of Health and Human Services



The opinion of the court was delivered by: HANNUM

 HANNUM, S.J.

 The defendant, Otis R. Bowen, Secretary of Health and Human Services (hereinafter "the Secretary"), has filed the present motion to dismiss the action brought by plaintiff, Irene Cooper, in this Court seeking reversal of the Secretary's determination to deny her claim for benefits under Title II of the Social Security Act (hereinafter "the Act") as amended. The defendant contends that there has been no "final decision of the Secretary made after a hearing" within the meaning of the Act. Thus, defendant argues that this Court lacks jurisdiction to review plaintiff's claim under Section 205(g) of the Act, 42 U.S.C. § 405(g). After careful consideration of the particular factual circumstances presented to the Court and the Third Circuit's opinion rendered in Rankin v. Heckler, 761 F.2d 936 (3d Cir. 1985), this Court agrees with the defendant. Accordingly, the Court will grant defendant's motion to dismiss plaintiff's complaint and will deny plaintiff's motion for summary judgment, also before the Court.

 The plaintiff's request for hearing was filed 32 days late. Under these circumstances, an administrative law judge may dismiss a request for hearing if untimely filed. 20 C.F.R. § 404.957 (c)(3) (1986). *fn2" See also Whitelock v. Califano, 451 F. Supp. 541 (E.D. Pa. 1978). However, in the instant case, the administrative law judge (hereinafter "the ALJ"), by notice dated July 19, 1984, notified Irene Cooper and her counsel that a hearing as to the merits of plaintiff's claim would be held on August 21, 1984. R.T. 17. *fn3"

 At the outset of the hearing, the administrative law judge raised the issue that plaintiff's hearing request was filed untimely. *fn4" Also, the ALJ, at this time, inquired as to whether good cause existed for plaintiff's late hearing request. R.T. 28-29. The ALJ then proceeded to conduct a full and complete hearing on the merits of plaintiff's claims, taking the timeliness issue under advisement. R.T. 26-165.

 On April 25, 1985, approximately eight months after the hearing date, the ALJ issued an order dismissing plaintiff's request for hearing on the basis that the request was not filed within the required sixty day period and that good cause did not exist to excuse plaintiff's late hearing request. R.T. 14-16. However, the ALJ's "Order of Dismissal" further related that were he to decide "the issues involved in the request for hearing on the merits," he would adopt the "rationale and conclusions of the reconsideration determination." R.T. 15-16.

 Judicial review of individual claims for benefits is permitted only in accordance with the provisions of Section 405(g) of the Act. 42 U.S.C. § 405(h); Califano v. Sanders, 430 U.S. 99, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977); Weinberger v. Salfi, 422 U.S. 749, 45 L. Ed. 2d 522, 95 S. Ct. 2457 (1975).

 Section 405(g) of Title 42 of the United States Code provides, in relevant part, as follows:

 
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 decision by a civil action commenced within sixty days after the mailing to him of notice of such decision . . . . in . . . [a] district court of the United States . . .

 42 U.S.C. § 405(g). This provision clearly limits judicial review to a particular type of agency action, a "final decision of the Secretary made after a hearing." Califano v. Sanders, 430 U.S. 99, 108, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977).

 To obtain a "final decision of the Secretary made after a hearing", a claimant who is denied benefits by the Secretary must ordinarily exhaust the full panoply of administrative remedies that are available to him under the Act; that is, the claimant must receive a decision by the Appeals Council which either reviews or denies review of a determination made by an ALJ after an evidentiary hearing on the merits of the claim. *fn5" When the exhaustion requirement is met, and the claimant receives a "final decision of the Secretary made after a hearing" on his claim, a federal court then has jurisdiction under 42 U.S.C. § 405(g) to review the merits of such a claim. *fn6" Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976); Rankin v. Heckler, 761 F.2d 936 (3d Cir. 1985); Liberty Alliance of the Blind v. Califano, 568 F.2d 333, 344 (3d Cir. 1977). See also Giacone v. Schweiker, 656 F.2d 1238, 1243 (7th Cir. 1981).

 Compliance with the exhaustion requirement may be waived in certain circumstances. See Rankin v. Heckler, 761 F.2d at 940. The Third Circuit has found a waiver of the exhaustion of remedies requirement where the claimant raises constitutional issues or where the claimant raises statutory issues upon which the ...


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