Social Security Disability
Zromkowski
08/21
Use www.severe.net to look up Social Security Rulings.
We will not have class on 09/04 and 09/11.
Grades: The exam will NOT be a take-home final. It is an OPEN-BOOK exam.
Zromkowski will place the HA paper on reserve.
Participation: Class will be more productive for us if we participate in discussions.
Read Harper v. Bowen 813 F2d 737 and CB p. 1-9.
08/22
Notes on Harper v. Bowen
a) Blown time limit
b) Supposed moratorium
c) Accordingly, claimant failed to exhaust administrative remedies as required to invoke district court subject matter jurisdiction
d) When you can’t file late, it’s a dismissal of request for Appeals Council review. CFR $404.972 – “The dismissal of a request for Appeals Council review is binding and not subject to further review.”
What you have to appeal is an actual decision on the merits of the case.
Disability benefits claimant sought review of appeal council’s denial of request for extension of time to file appeal. The United States District Court for the Northern District of Mississippi, L.T. Senter, Jr., Chief Judge, dismissed claim for lack of subject matter jurisdiction. Claimant appealed. The Court of Appeals, Robert Madden Hill, Circuit Judge, held that neither appeals council’s decision to dismiss request for review as being untimely filed nor denial to extend time period for late filing was “final decision,” and, thus, claimant failed to exhaust administrative remedies as required to invoke district court’s subject matter jurisdiction.
Neither appeals council’s decision to dismiss request for review as being untimely filed nor council’s denial to extend time period for late filing was “final decision,” and, thus, disability benefits claimant failed to exhaust administrative remedies as required to invoke district court’s subject matter jurisdiction; disagreeing with Bloodsworth v. Heckler, 703 F.2d 1233 (11th Cir.); recognizing prior overruling of Langford v. Flemming, 276 F.2d 215 (5th Cir.). Social Security Act, § 205(g, h), as amended, 42 U.S.C.A. § 405(g, h); Social Security Administration Regulations, §§ 404.972, 404.981, 42 U.S.C.A.App.
Appeals council’s decision to hear untimely request for review is optional depending upon whether council believes good cause is shown. Social Security Act, § 205(g, h), as amended, 42 U.S.C.A. § 405(g, h).
“In this appeal Michelle Harper (Harper) challenges the district court’s dismissal for lack of subject matter jurisdiction of her claim for disability benefits under the Social Security Act. The district court dismissed the case because Harper had failed to timely exhaust the available remedies under the Social Security Act and the applicable regulations. Because Harper did not obtain a final decision from the Soci
ed,” not just optional, before a judicial appeal is available. Here, the Appeals Council’s decision to hear an untimely request for review is optional depending upon whether it believes good cause has been shown. See 20 C.F.R. § 416.1468(b). Also, as in Sanders, the same policy of imposing a 60-day limit on judicial review to forestall belated litigation would be frustrated.
Also, under Salfi, Harper must meet the requirements specified by the Secretary for exhaustion. The last requirement in order to have exhaustion of administrative remedies is a timely appeal to the Appeals Council. This requirement was not met. Instead, Harper’s request for review by the Appeals Council was dismissed as untimely. See 20 C.F.R. § 416.1471. This dismissal is not subject to review, see 20 C.F.R. § 416.1472, because there was no “final decision” by the Appeals Council. Cf. 20 C.F.R. § 416.1400(a)(4) & (5). Since Harper never had the Appeals Council review the decision of the ALJ, she did not exhaust her administrative remedies, which would have allowed judicial review. Sanders and Salfi and the Secretary’s regulatory scheme, therefore,
