SSR 71-2c: SECTION 205(b). -- FINALITY OF DECISION -- REOPENING FOR GOOD CAUSE -- MEANING OF "INITIAL DETERMINATION"
20 CFR 404.957
SSR 71-2c
Pasquale v. Finch, 418 F.2d 627 (1st Cir., 1969)
- The claimant, in August 1961, filed application for disability insurance benefits, alleging "disability" resulting from a back injury two years earlier. The application was initially denied on January 10, 1962, and was later denied at all administrative appeals levels, the last denial (by the Appeals Council) being dated July 5, 1963. The claimant did not commence civil action, but on February 10, 1966, filed a second application based on the same back injury. It was determined the claimant was entitled to a period of disability beginning November 30, 1961, but that disability insurance benefits could be awarded only from February 1965, one year prior to the filing of the second application. The claimant contends, inter alia, that the prior decision made on his first application should have been reopened for good cause, under the provisions of section 404.957, Social Security Administration Regulations No. 4 (20 CFR 404.957), since less than four years had elapsed from the date of notice of the Appeals Council decision of denial. Held, the words "notice of initial determination" as set forth in 20 CFR 404.957 refer to the first step in a four-step administrative review system (initial determination, reconsideration, hearing and Appeals Council review) and that the reopening period begins with the notice of the first determination in this review procedure. Accordingly, since notice of the initial determination was sent to the claimant more than four years before an effort to reopen the final decision on his first application, he is not entitled to a reopening of that decision.
Before ALDRICH, Chief Judge, WOODBURY, Senior Circuit Judge, and COFFIN, Circuit Judge.
COFFIN, Circuit Judge: -- The government has appealed from a final judgment by the district court, Pasquale v. Cohen, 296 F. Supp. 1088 (D.R.I. 1969), granting the plaintiff Pasquale's motion for summary judgment and denying the defendant government's similar motion. While resisting the government's appeal on the merits, Pasquale also contends that the government lost its right to appeal by waiting 103 days before noticing its appeal. We consider the plaintiff's procedural objections first.
[The Court upheld the plaintiff's procedural objections holding that the District Court erred in granting the Government an extension of time to file an appeal and accordingly dismissed the government's appeal.]
This disposition would of course normally make unnecessary any consideration of the merits of the government's appeal. However, we feel compelled to discuss the merits simply because we believe that the district court has rendered a mistaken interpretation of the relevant regulations which could misguide future claimants. Our discussion of this point requires a brief review of the facts in this case.
In August 1961 Pasquale applied to the Social Security Administration for disability insurance benefits, alleging that he had become disabled as a result of a back injury some two years earlier. This application was denied on January 10, 1962. Further administrative appeals followed, culminating in a denial of benefits at the highest administrative level -- the Appeals Council -- on July 5, 1963. Pasquale was notified that he could commence an action in the federal district court within 60 days but no appeal was taken.
On February 10, 1966, Pasquale applied a second time for disability insurance benefits for the same back injury. On May 3, 1967, a hearing examiner found that Pasquale was indeed entitled to benefits for his disability which began at least as early as November 30, 1961, but that such benefits could only be awarded from February 1965, one year before the filing of the second application. Social Security Act, § 223 [sic] (b), 42 U.S.C. § 223 [sic] (b) (1964). Pasquale concedes the validity of that holding, but contends that the hearing examiner should have reopened his initial application of August 1961, which reopening would probably have entitled Pasquale to benefits for the full period of his disablement. The hearing examiner's refusal to reopen was sustained by the Appeals Council, which reasoned that 20 C.F.R. § 404.957 -- which provides for the reopening of a prior application, for good cause, within four years after its "initial determination" -- did not apply to Pasquale because his first application had had its "initial determination" on January 10, 1962, four years and one month prior to the second application. Pasquale appealed this decision to the district court, which held that Pasquale could avail himself of that regulation since the "initial determination", as these words were intended by § 404.957, had occurred on July 5, 1963, the day the January 1962 determination had become final. Pasquale v. Cohen, 296 F. Supp. at 1093. Thus, we are confronted with the issue whether the words "initial determination" as they appear in 20 C.F.R. § 404.957 refer to the first determination by the Social Security Administration or to the Administration's final resolution of the first determination.
The reopening provision, 20 C.F.R. § 404.957, provides, in relevant part, that:
-
An initial or reconsidered determination of the Administration or a
decision of a hearing examiner or of the Appeals Council which is
otherwise final . . . may be reopened:
* * *
- (b) . . . within 4 years after the date of the notice of the initial determination (see § 404.907) to the party to such determination, upon a finding of good cause . . . [Emphasis added.]
The reference to § 404.907 which immediately follows the critical words clearly indicates that the words "notice of initial determination" refer to the notice concerning the first determination by the Administration regarding a given application, for that section requires the Secretary to send notice to a claimant when the initial decision is made on his application and, if the application has been denied, to inform the claimant of his right to reconsideration. Pasquale's § 404.907 "notice of initial determination" was sent on January 10, 1962, more than four years before his effort to reopen for "good cause" was commenced.
Moreover, the repeated use of the phrase "initial determination" throughout these regulations -- e.g., 20 C.F.R. §§ 404.902, .905-.914, .917, .953, .954, and .956 -- clearly indicates that the words refer to the first step in a four-step administrative appeals system: initial determination, §§ 404.905-.908; reconsideration, §§ 404.909-.916; hearing, §§ 404.917-.940; and Appeals Council, §§ 404.941-.955. We have found no indication whatever that the phrase was used or intended in other parts of these regulations to mean anything but the first determination in the administrative scheme; the explicit reference to § 404.907 in the reopening provision itself is overwhelming evidence that "initial determination" was intended to have the same meaning there that it clearly has in § 404.907 and throughout these regulations. That the determination must be final before it can be reopened, as § 404.957 itself requires, is in no way inconsistent with our interpretation of § 404.957 that the reopening period begins with the notice of initial determination.
The district court concluded that the reopening provision's reference to "initial determination" was intended to mean the day on which the "initial determination" became final, here July 5, 1963. As we have indicated above, we can find nothing in the regulations to suggest that those words were intended to have that meaning; sections 404.947 and 404.950 relate to the notice of the Appeals Council's resolution of an application and had it been that determination which was intended by § 404.957, the reference there would have been to those sections, not to § 404.907.
The district court was concerned by the fact that the claimant who utilized all three administrative appeals might find that his four year "reopening" period had been substantially exhausted by his appeals, so that he would only have a short period in which to seek reopening rather than the full four years that one who made no appeals would have. We think this reasoning faulty for two reasons. First, to read the regulations as the district court has would afford a much longer reopening period to the claimant who appealed than to the claimant who did not, thereby prejudicing the latter group. In other words, had Pasquale not appealed, he would only have until January 10, 1966, but since he did take an appeal within the Administration, he would, under the district court's interpretation, have until July 5, 1967 to seek reopening. More importantly, however, the district court overlooked the fact that a claimant has a right to introduce new evidence at each level of his administrative appeal. See 20 C.F.R. §§ 404.914, .925-.930, and .949. Thus, while he may be using up some of his time for reopening, he has a continuing opportunity to have all his evidence heard whenever he produces it. We think that it would be inequitable to afford an appealing claimant an additional four years for reopening after he has already had additional hearings before the administration.
Thus, we conclude that the clear meaning of § 404.957 also produces a more equal treatment of all claimants. We can conceive of circumstances where these regulations might be administered in such a manner as to prejudice an appealing claimant, i.e., by deliberately delaying a determination on appeal so as to preclude reopening. We cannot believe that a court would be powerless in such exceptional circumstances to allow a reopening to one who sought it promptly. It should be remembered, however, that the regulation in question only bears on a claimant's right to reopen his application within the Administration; his right to appeal to the federal district court within 60 days of the Administration's final decision exists in any event. 42 U.S.C. § 405(g) (1964); 20 C.F.R. § 404.951.