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APONTE v. SULLIVAN

March 4, 1993

RAFAEL APONTE
v.
LOUIS SULLIVAN, SECRETARY OF HEALTH & HUMAN SERVICES



The opinion of the court was delivered by: BY THE COURT; JAMES T. GILES

 GILES, J. March 4, 1993

 Plaintiff seeks review of the Department of Health and Human Services' denial of his application for benefits under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 401-33. Defendant has moved to dismiss the complaint for lack of subject matter jurisdiction. For the reasons stated below, defendant's motion is denied.

 I. BACKGROUND & PROCEDURAL HISTORY

 Title II of the Social Security Act provides disability benefits for a claimant who demonstrates that he suffers a physical or mental disability within the meaning of the Act and that the disability arose prior to the expiration of his insured status. See 42 U.S.C. § 423. The United States Supreme Court has succinctly described the scheme of administrative decision-making and judicial review established by the Act for the determination of Title II eligibility:

 
The administrative process is begun when [the claimant] files a claim with the Social Security Administration. . . . If the claim is administratively denied, regulations permit administrative reconsideration within a six-month period. . . . Should a request for reconsideration prove unsuccessful, the claimant may, within 60 days, ask for an evidentiary hearing before an administrative law judge, . . . and a discretionary appeal from an adverse determination of the law judge lies to the Appeals Council. . . . Finally § 205(g) of the Act, 42 U.S.C. § 405(g), authorizes federal judicial review of "any final decision of the Secretary made after a hearing to which [the claimant] was a party . . . ."

 Califano v. Sanders, 430 U.S. 99, 101-02, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977) (citations omitted). Judicial review must be sought within sixty days after the Appeals Council mails notice of its decision. 42 U.S.C. § 405(g).

 Plaintiff's attempt to secure Title II benefits began more than seven years ago. *fn1" He first filed an application for Title II disability benefits in October, 1985 alleging that he had been disabled since November 1, 1981. That application was denied in March, 1986. No appeal was taken.

 In January, 1987, plaintiff again applied for Title II benefits, again alleging disability since November 1, 1981. This application was denied initially and upon reconsideration in March and May, 1987. Plaintiff did not request a hearing before an administrative law judge ("ALJ") following the denial upon reconsideration.

 In July, 1989, plaintiff filed a third application for disability insurance benefits, alleging disability since May 1, 1981. *fn2" This third application was denied initially and upon reconsideration in September and November, 1989. Following this denial upon reconsideration, plaintiff filed a timely request for a hearing before an ALJ. In August, 1990, an ALJ dismissed plaintiff's request for a hearing. The ALJ held that the May, 1987 denial of plaintiff's claim became the final decision of the Secretary when plaintiff failed to further pursue his administrative remedies. The ALJ further found that the evidence submitted by plaintiff with his request for a hearing was either duplicative of the evidence submitted in his previous applications, or was irrelevant to his claim. Because the new claim involved the same facts and issues as the earlier denied claim, the ALJ held that the May, 1987, denial was res judicata of the issues raised in the new claim. Consequently, plaintiff's request for a hearing was dismissed. *fn3"

 In February, 1992, plaintiff filed a fourth application for Title II benefits, alleging disability since October 1, 1981. The application was dismissed initially and upon reconsideration in April, 1992. Plaintiff requested a hearing before an ALJ. On June 5, 1992, the ALJ issued an order dismissing plaintiff's request for a hearing. The ALJ held that the November, 1991 refusal by the Appeals Council to review the previous ALJ's use of res judicata became a final, binding decision when plaintiff neglected to seek judicial review within sixty days. Therefore, the current application was not properly before him. Plaintiff was notified that he had 60 days to request an Appeals Council review of the order. Plaintiff did not request Appeals Council review, but instead filed this civil action on August 5, 1992. Defendant now moves pursuant to Fed.R.Civ.P. 12(b)(1) to dismiss the complaint for lack of subject matter jurisdiction.

 II. DISCUSSION

 Defendant argues that the only possible source of federal jurisdiction for review of Social Security benefit determinations is through the judicial review provisions of § 205(g) of the Social Security Act, 42 U.S.C. § 405(g). *fn4" The Act specifies that judicial review is available only from a "final decision of the Secretary made after a hearing." Id. In the instant case, the last action taken by the Secretary, in June, 1992, was a dismissal of plaintiff's request for a hearing. *fn5" Defendant argues that a dismissal of a hearing request is not a "final ...


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