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CARTER v. HECKLER

July 12, 1984

EZEKIEL CARTER, PLAINTIFF,
v.
MARGARET HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Ezekiel Carter ("Carter") sues the Secretary of Health and Human Services ("Secretary") under 42 U.S.C. § 405(g) ("Section 405(g)"), seeking judicial review of Secretary's decision denying Carter's application for disability benefits. Secretary has moved alternatively for dismissal or for summary judgment because Carter did not file his complaint within 60 days after Secretary's final decision, as required by Section 405(g). For the reasons stated in this memorandum opinion and order, Secretary's summary judgment motion is granted.*fn1

Facts

Carter applied for disability benefits November 21, 1981. After his application was denied, he requested a hearing before an Administrative Law Judge ("ALJ"). After a November 18, 1982 hearing, the ALJ issued his December 8, 1982 decision denying Carter benefits. Two days later Carter requested review by the Appeals Council. On March 21, 1983 the Appeals Council affirmed the ALJ's decision, rendering it Secretary's final decision.

On August 9, 1983 Carter's newly-retained attorney requested both the Appeals Council and the ALJ to reopen the case and hold a new hearing. On August 22 Carter's attorney asked the Appeals Council to extend the time to file this action. Carter received no response and filed this action February 6, 1984.

On March 23, 1984 the ALJ informed Carter's attorney he was reviewing Carter's file. On May 1 the ALJ's office advised Carter's attorney "they are looking into whether or not they can reopen for new hearing." Carter's attorney responded that was all Carter wanted and this action would be dismissed if one were afforded. Carter's attorney was then asked to send additional medical records and did so the same day. Then on May 10 the ALJ told Carter's attorney he had no jurisdiction to reopen the case because this action was pending.

Carter has consistently maintained he is merely seeking a new hearing with representation by counsel and a chance to present evidence of his mental disability. Carter also argues his mental disability prevented him from seeking review of Secretary's decision in a timely manner.

Section 405(g) and Its Application

Section 405(g) provides in relevant part:

  Any individual, after any final decision of the
  Secretary made after a hearing to which he was a
  party, irrespective of the amount in controversy, 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 or within such further
  time as the Secretary may allow.

Under Secretary's regulations (1) "mailing" is the date the claimant receives the notice of the Appeals Council's decision and (2) receipt is presumed to have occurred five days after the notice's date unless the claimant makes a reasonable showing to the contrary. 20 C.F.R. § 422.210(c). Thus Carter should have filed this action no later than May 25, 1983 (65 days after March 21, 1983).

Carter essays four means of escape from Section 405(g)'s literal meaning:

    1. Secretary's inaction on Carter's requests to
  reopen the case or extend the filing time is
  tantamount to denial of those requests. Such denial
  is an abuse of ...

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