20 CFR 404.952, 404.954, 404.957, and 404.958
VICTORIA McCUNNEY et al v. GARDNER, 374 F.2d 110 (3rd Cir., 2-24-67)
[On June 1, 1960, the claimant filed application on behalf of her children for child's insurance benefits on the earnings record of the worker, who died on April 24, 1960. This application was denied initially and upon reconsideration on the ground that the children did not have the status of "children" of the deceased worker within the meaning of the Social Security Act. The claimant was informed of the determination initially by notice dated July 12, 1960, and, on reconsideration, by notice dated October 13, 1960. The notice of October 13, 1960, also advised the claimant as follows:
[On April 9, 1962, almost a year and a half after the date of the notice of the reconsidered determination, the claimant filed a request for a hearing, and a petition for an extension of time for filing a request for hearing.
[Section 404.916 of Social Security Administration Regulations No. 4 (20 CFR 404.916) provides, as pertinent here, that a reconsidered determination is final and binding on the parties to it, unless a hearing is requested in accordance with section 404.918 of Regulations No. 4.
[Section 404.918 of Social Security Administration Regulations No. 4 (20 CFR 404.918) states, in pertinent part, that the request for a hearing must be filed within 6 months after the date f mailing notice of the reconsidered determination, except where the time is extended for "good cause." Section 404.954(a) of Regulations No. 4 (CFR 404.954(a)) provides, as pertinent here, that:
[On May 29, 1962, the claimant's request for a hearing was dismissed by a hearing examiner of the Social Security Administration on the grounds that the request was not timely filed in accordance with section 404.918 of Regulations No. 4, and there was no showing of "good cause" for failure to timely file, within the meaning of section 404.954(a) of Regulations No. 4.
[Over 2 years later, the claimant petitioned for a reopening of the reconsidered determination dated October 13, 1960; for an extension of time to request a hearing; and for a hearing on the merits.
[Under section 404.957(b) of Regulations No. 4 (20 CFR 404.957(b)), and initial or reconsidered determination that has become final may be reopened within 4 years after the date of the notice of the initial determination upon a finding of good cause for reopening such determination. Section 404.958 of Regulations No. 4 (CFR 404.958) provides, in pertinent part, that good cause for reopening an initial or reconsidered determination shall be deemed to exist where new and material evidence is furnished after notice to the party to the initial determination or where there is an error as to such determination on the face of the evidence on which the determination is based. On July 1, 1964, the Administration advised the claimant that her request for reopening was denied because new and material evidence was not submitted and the reconsidered determination of October 13, 1960, was correct and in accordance with the evidence and the relevant law.
[The claimant then filed a request with a hearing examiner of the Social Security Administration for review of the refusal to reopen the reconsidered determination of October 13, 1960. The hearing examiner denied this request on August 4, 1964, holding that the refusal to reopen a final determination is not itself a "determination" within the meaning of section 404.905 of Regulations No. 4 (20 CFR 404.905) and thus is not subject to hearing or Appeals Council review.
[On October 1, 1964, the claimant commenced a civil action for judicial review pursuant to section 205(g) of the Act, in the United States District Court for the Eastern District of Pennsylvania, requesting reversal of the reconsidered determination made on October 13, 1960.
[Section 205(g) of the Act provides in pertinent part that:
[It was the position of the Social Security Administration that the reconsidered determination of October 13, 1960, on the claimant's application on June 1, 1960, became final and binding on the claimant because she did not file a timely request for hearing with regard to such reconsidered determination and, further, she did not establish "good cause" for failing to timely file for a hearing. Since there was no hearing, there could not have ben a "final decision of the Secretary made after a hearing" subject to judicial review under section 205(g) of the Act. Further, the claimant had no right to a hearing with respect to the Administration's refusal to reopen the reconsidered determination of October 13, 1960, since such refusal is not a "determination" within the meaning of the Administration's regulations. Accordingly, the refusal to reopen was not a "final decision of the Secretary made after a hearing" within the meaning of section 205(g) of the Act and, therefore, was not subject to judicial review.
[On June 27, 1966, the district court issued an order granting the Secretary's motion for summary judgment. The claimant then appealed to the United States Court of Appeals for the Third Circuit. The opinion of the Court of Appeals follows.]
The appellant is an unsuccessful claimant of social security benefits for her children. The district court granted summary judgment denying the claimant judicial relief. The record shows that the claimant did not within the time required by law take the prescribed steps to obtain a full administrative hearing upon or review of the merits of her claim. Thereafter, the appellee's denial of a subsequent petition to reopen the matter was not an appealable order Filice v. Celebrezze, 9th Cir., 1963, 319 F.2d 433. In the circumstances the courts cannot properly assist her.
The judgment will be affirmed.
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