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WOLF v. APFEL

January 9, 1998

DOUGLAS WOLF, Plaintiff,
v.
KENNETH S. APFEL, Commissioner, Social Security Administration, Defendant.



The opinion of the court was delivered by: GETTLEMAN

 Plaintiff Douglas Wolf has filed a complaint against defendant Kenneth S. Apfel, the Commissioner of the Social Security Administration ("SSA"), *fn1" seeking judicial review of a decision denying him Supplemental Security Income benefits ("SSI benefits"). Defendant's motion for voluntary remand is presently before the court.

 BACKGROUND

 Plaintiff first applied for SSI benefits on October 30, 1990. His application was denied, both initially and on reconsideration. Plaintiff then appealed and requested a hearing before an Administrative Law Judge ("ALJ"). A hearing was scheduled for February 4, 1992, but plaintiff's representatives *fn2" lost contact with him shortly before the hearing. On January 31, 1992, plaintiff's representatives sent the ALJ a letter explaining the situation and requesting that the hearing be postponed or that the case not be dismissed for 30 days. Plaintiff and his representatives claim that they never received notice of any decision regarding plaintiff's first application. Plaintiff claims his representatives were later told that the SSA considered his application abandoned.

 Plaintiff contacted his representatives approximately one year later in February, 1993, after being released from jail. On February 16, 1993, plaintiff applied for SSI benefits for the second time. His application was denied. Once again, plaintiff appealed and requested a hearing before an ALJ. On October 17, 1994, ALJ Thomas H. Ploss conducted a hearing on plaintiff's second application for benefits. Plaintiff has submitted an informal transcript of this hearing prepared by one of his representatives. *fn3" According to this transcript, Judge Ploss stated that he planned to find that plaintiff was disabled and entitled to benefits pursuant to his second application. Judge Ploss also stated that plaintiff's first application would be reopened and allowed on the same basis. In his decision on January 13, 1995, however, Judge Ploss found plaintiff disabled and entitled to benefits only as of February 16, 1993, the date of his second application. Judge Ploss did not reopen plaintiff's first application, stating that plaintiff's earlier application's request for a hearing had been dismissed for failure to appear at the hearing.

 Plaintiff appealed Judge Ploss' decision. On January 5, 1996, the Appeals Council denied plaintiff's request for review. On March 25, 1996, however, the Appeals Council vacated its January 5, 1996, action and granted plaintiff's request for review. The Appeals Council found that the record showed that plaintiff had first applied for SSI benefits on October 30, 1990, and had requested a hearing on that application on August 8, 1991. The Appeals Council also found that plaintiff's first application for benefits was still open because the hearing office took no action on his request for a hearing. The Appeals Council acknowledged that Judge Ploss had stated that plaintiff's request for a hearing was dismissed for failure to appear, but noted that plaintiff's file did not contain any documentation showing that a dismissal was actually issued. In conclusion, the Appeals Council stated that it was "prepared to consolidate [plaintiff's] two applications . . . and issue a decision finding that [plaintiff] has been disabled . . . since October 30, 1990, the date of his prior application."

 The Appeals Council issued its decision on June 16, 1997, after receiving a copy of an order, dated February 27, 1992, dismissing plaintiff's request for a hearing on his first application for failure to appear. In its decision, the Appeals Council stated that a copy of the dismissal order was mailed to plaintiff and his representative, and that no request that the Appeals Council review the dismissal order was made. Thus, the Appeals Council found that "[plaintiff's] prior request for hearing was adjudicated, and the reconsideration determination . . . remains the final and binding determination of the Commissioner with respect to [his] application of October 30, 1990." Because plaintiff's second application was filed more than two years after the initial determination on his first application, the Appeals Council found that "no basis exists to reopen the order of dismissal or to grant [plaintiff's] request for review." The Appeals Council, therefore, vacated its March 25, 1996, action, and reinstated its January 5, 1996, denial of plaintiff's request for review.

 On August 19, 1997, plaintiff filed the instant action seeking review of the Commissioner's decision and claiming he was denied notice and an opportunity to be heard in violation of his right to due process under the Fifth Amendment to the United States Constitution.

 DISCUSSION

 Plaintiff brings the instant action under Title II and Title XVI of the Social Security Act, specifically 42 U.S.C. §§ 405(g) and 1383(c)(3). Section 405(g), in part, provides:

 
any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party . . . may obtain a review of such decision by a civil action commenced [in the district court of the United States] within sixty days after the mailing to him of notice of such decision or within such further time as the Commissioner of Social Security may allow.

 This court may remand the instant case because the Commissioner has moved for a remand before answering plaintiff's complaint and has shown good cause for doing so. 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 100 n.2, 115 L. Ed. 2d 78, 111 S. Ct. 2157 (1991). The "good cause" shown is the fact that the Commissioner has not considered plaintiff's evidence that neither he nor his representatives received notice of the ALJ's dismissal of plaintiff's request for a hearing on his first application for SSI benefits.

 Plaintiff does not oppose remand. He does, however, argue the case should not be remanded on the issue of whether his first application should be reopened. Plaintiff argues that the issue of reopening his first application is irrelevant because his failure to receive notice of the application's dismissal constitutes "good cause" for missing the deadline to request review under 20 C.F.R. § 416.1411(b)(7), thereby precluding any final decision on the application. Plaintiff argues that ...


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