pertinent date that is the subject of the appeal to the Appeals Council (in this case the date that the ALJ dismissed Hudson's request for a hearing) can be considered by the Appeals Council. 20 C.F.R. §§ 404.970(b), 416.1470(b) (1991). Hudson's second and third applications (filed July 25, 1990 and May 12, 1991, respectively) would largely be devoted to setting forth his eligibility for benefits subsequent to that date. Thus, the absurdity, as Hudson notes: "evidence is forwarded to the Appeals Council 'for consideration' even though such evidence cannot be considered. Response at 3 (emphasis in original).
The potential harm to persons like Hudson is readily apparent. For whatever reason, the Appeals Council process is often lengthy (though, as we shall see, apparently somewhat arbitrarily so); Hudson's request for review was filed in July 1990 and was only recently ruled on (more on this to follow). By contrast, a well-prepared initial application can be adjudicated comparatively swiftly; Hudson's first claim was evaluated (and denied) within several weeks. Hudson, then, who may or may not have a legitimate claim for benefits as described in his second and third applications, is forced to go without a determination of his eligibility for benefits based on his subsequent applications because his first application is languishing in the Appeals Council process. One might ask why he simply does not withdraw his appeal relating to the first application--then, presumably, the Secretary would be free to evaluate the second and third applications as an "original" matter. As Hudson points out, that option forces him to abandon any right to any benefits he may be entitled to via the initial application. In other words, to receive a determination (which could be a denial) of eligibility on his subsequent applications, Hudson must withdraw his appeal relating to application one, but in so doing, he forfeits any eligibility for benefits on that initial claim.
The Secretary, after steadfastly maintaining that this court has no jurisdiction over Hudson's claim because Hudson has failed to exhaust his administrative remedies and because he fails to state a cognizable claim, adds to the mixture in the reply brief. There, the Secretary contends that certain "administrative actions have been taken" which render Hudson's suit here "moot." On April 10, 1992, the Appeals Council determined that Hudson had "good cause" for not appearing at his ALJ hearing. The Appeals Council remanded the case to an ALJ for a new hearing. This decision puts Hudson's first application back "into play," and it also puts the substance of his second and third applications into play as well; "on remand, the ALJ will provide a hearing de novo encompassing the question of plaintiff's disability from the time of his first application to the date of the ALJ's decision after the hearing. Reply at 3-4 (citing 20 C.F.R. § 404.944 (1991)); see also id. at 4 ("the period [covered by Hudson's subsequent applications] is entirely included in the ALJ's proceedings on remand on his first application").
The Secretary also maintains in the reply brief that POMS § DI 20101.025(C)(1) is discretionary, keying on the words "will generally consider the subsequent application with the prior claim" as support, and that with this discretion, the Secretary may in appropriate circumstances "immediately process a new claim which does not relate back [to a prior claim pending before the Appeals Council]. This is an inappropriate argument in a motion to dismiss. Hudson's complaint, as he points out, alleges that the Secretary has a policy and practice of immediately forwarding all subsequent applications whenever a prior application is pending in front of the Appeals Council. At this stage in these proceedings, the Secretary's arguments to the contrary are misplaced.
As for mootness, Hudson notes that, if the Secretary can moot litigation like Hudson's "by merely taking administrative action which renders the challenged conduct too short in duration to be fully litigated," it may succeed in evading judicial review of its practice (again, taking Hudson's complaint as true) of sending subsequent benefits applications into administrative limbo. We agree.
There are other reasons that this is a classic "capable of repetition yet evading review" case. Should the ALJ render an adverse decision, Hudson will in all likelihood request Appeals Council review. These requests are, as noted above, subject to often lengthy delays. While such an appeal is pending, "a reasonable likelihood exists that Mr. Hudson's condition will worsen during the interim and that he will file a subsequent application based on new evidence of disability which may not relate back to the ALJ's decision." Surreply at 3. As Hudson notes, given the Secretary's staunch defense of the legality of this process, there is "a sufficient likelihood that [Hudson] will again be wronged in a similar way. Id. at 4; see also Honig v. Doe, 484 U.S. 305, 323, 108 S. Ct. 592, 604, 98 L. Ed. 2d 686 (1988).
Accordingly, we decline to dismiss Hudson's complaint, and deny the Secretary's motion. The May 22, 1992 status date is vacated and reset for June 2, 1992, at 10:00 a.m. It is so ordered.
MARVIN E. ASPEN
United States District Judge
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