Petition for Writ of Certiorari — Wenzel v. Apfel

Supreme Court, U.S.

FILED

99 5 0 MAY 10 1999

No.

prrice p —_

In The

Supreme Court of the United States

ROBERT MARSHALL WENZEL,

Petitioner,

COMMISSIONER OF SOCIAL SECURITY

KENNETH STEVEN APFEL,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

+

Rosert M. WENZEL

Petitioner pro se

1162 Spanish Armada Road

Las Vegas, NV 89123

(702) 361-1226

May 6, 1999

QUESTIONS PRESENTED FOR REVIEW

Whether the Commissioner’s denial of the peti-

tioner’s disability was supported by substantial evidence,

was an accordance of due process of law as mandated by

the Constitution of the United States.

Whether the Commissioner’s refusal to reopen the

petitioner’s case was again supported by substantial evi-

dence, was again an accordance of due process of law,

was justifiable under the Code of Federal Regulations.

Whether the District Court’s dismissal of this case for

lack of jurisdiction and the Court of Appeals Panel's

affirmance were decisions founded on judicial consider-

ation of the facts and application of the law, were justifi-

able under the United States Code and the case law.

Whether the Commissioner’s conduct in the adminis-

trative review process and judicial proceedings asks for

the attention of this Court.

Whether the District Court and the Panel’s decisions

have set at naught this Court’s relevant decisions.

Whether the District Court and the Panel’s proceed-

ings have so far departed from the accepted and usual

course of judicial proceedings as to call for an exercise of

the supervisory power of this Court.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED FOR REVIEW ........--: i

TABLE OF AUTHORITIES .........-----+eeeeeeeees iv

OPINIONS BELOW..........-:-- eee eee ree ereeeee 1

JURISDICTION .......-- ccc ee cece eee e eee eeeecees 1

CONSTITUTIONAL, STATUTORY, AND REGULA-

TORY PROVISIONS INVOLVED ...........--+++: 1

STATEMENT OF THE CASE.......----+++eeeeeeees 1

b. WntroGuction ... 6. ccc vcccecesrcevesveeenneenyes 1

2. The Administrative Law Judge’s Hearing Deci-

eT PEPETCECETTTTEE CTT 2

_3. The ALJ’s “Measure” of “Non-disability”...... 2

4. The Appeals Council’s Action........-+++++++: 2

5. Wenzel’s Disability Report ........-----+++e++ 3

6. The Office of Disability Director’s Disapproval... 3

7. Wenzel’s Narrative, the First Showing of Error

on the Face of the Evidence .......-.--++++-+- +

8. The Director’s Letter...........-- eee eeeeeeees 4

9. Wenzel’s Petition for A Reopening or an Extend-

ing of Time for Filing a Court Action.......-. 5

10. The Appeals Council’s Order ......-..-+.--++- 6

11. The District Court Proceedings..........--++-+- 7

12. The Commissioner’s Points and Authorities

Statement of Facts, and Declaration of Wilbur J.

PP PPT rr ere ee

TABLE OF CONTENTS - Continued

Page

14. The Court of Appeals Proceedings ............ 18

15. The Commissioner’s Brief..................... 18

16. The Panel's MEMORANDUM of Affirmance... 19

REASONS FOR GRANTING THE WRIT AND

RCE eee Re Wed ses 6-46 sesereecrvecercess 23

DE s Succdnweseseescccscvvevecserccceseses 30

OEE ee App. 1

EEE App. 44

EE App. 102

iV

TABLE OF AUTHORITIES

Page

Cases

Bell v. Hood, 66 S.Ct. 773 (1946)......... 0... c cee eee 26

Bowen v. City of New York, 106 S.Ct. 2022 (1986)

Ee EE eee rat tenia heer sey ise nit yay 18, 28, 29

Califano v. Sanders, 97 S.Ct. 980 (1977)

ee re ern Mie Miles, sta) 13, 17, 18, 19, 27, 28

Evans v. Chater, 110 F.3d 1480 (9th Cir. 1997)

ee OR Creeper hats My TTTTTTT Tre Tk OU le

Hoye v. Sullivan, 985 F.2d 990 (9th Cir. 1992)

-caveueeesa ee eek edeedereeeaaaee 16, 18, 19, 21, 22, 28

Mathews v. Eldridge, 96 S.Ct. 893 (1976)....... 18, 27, 29

Richardson v. Perales, 91 S.Ct. 1420 (1971)............ 27

Weinberger v. Salfi, 95 S.Ct. 2457 (1975)........... 18, 27

CONSTITUTIONAL, STATUTORY, AND REGULATORY PROVISIONS

re Gs GUI: Bone vse ndnvkveenvene ceaeces passim

a es Ee GED 6 feud oben a ceueksncus cecnzesesa norte |

Ft eR ep sda whe sbebisstecriesnetnucnsa he 20

Ge eee EE 69 06 ba nbadbsnesnaehete esse cece passim

ae ae Se PD Sh oe kwnacccnsnkacescevesuwenneeual 13

20 CFR Ch. HII §§ 404.988 and 989........ 1, 18, 24, 25

rook So Se Fe 8 ere eee 23

20 CFR Ch. Ill Pt. 404, Subpt. P, App. 1, 4.11....... 24

|

PETITION FOR A WRIT OF CERTIORARI

AND REQUEST FOR A SUMMARY REVERSAL

Robert Marshall Wenzel respectfully petitions for a

writ of certiorari to review the judgment of the United

States Court of Appeals for the Ninth Circuit in this case,

and requests a summary reversal of its decision therein.

OPINIONS BELOW

The decision of the Court of Appeals denying rehear-

ing (App. 40) is unreported. The decision of the Court of

Appeals affirming the decision of the District Court (App.

38) is reported at 162 F.3d 1171. The decision of the

District Court dismissing this case for lack of jurisdiction

(App. 27) is unreported.

JURISDICTION

On February 8, 1999, the Court of Appeals denied the

suggestion for rehearing en banc and the petition for

rehearing by the Panel. See Ninth Circuit Rule 35-1. The

jurisdiction of this Court is invoked under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL, STATUTORY, AND

REGULATORY PROVISIONS INVOLVED

U.S. Const., Amend. 5 (App. 41).

42 U.S.C. § 405(g) (App. 42).

20 CFR Ch. III §§ 404.988 and 404.989 (at 24 infra).

STATEMENT OF THE CASE

1. Introduction

Petitioner Wenzel, on March 7, 1968, on a river patrol

boat in the Ben Tre Canal, was injured by a B-40 rocket.

He sustained a shearing of the upper left leg, a broken

femur, a severed artery, a ruptured eardrum, and a knee-

2

to-cheek embedment of shrapnel. He was hospitalized for

thirteen months, and received Social Security disability

benefits for the last seven. Wenzel’s Narrative, Pl. Ex. 17

(App. 125), contains the 1968-93 chronology. This State-

ment includes, and as necessary more fully describes, the

relevant events.

2. The Administrative Law Judge’s Hearing Decision

Wenzel, on March 18, 1974, unaccompanied by coun-

sel, appeared before ALJ William H. Yim for a hearing.

The ALJ, on May 21, 1974, issued his Hearing Decision,

Pl. Ex. 1 (App. 3).

3. The ALJ’s “Measure” of “Non-disability”

The Claimant appears well-advised in his plans

to enter college to take journalism. He seems

certain for success, particularly in that field. But

if he can go to college, he can do a desk job.

Even though that would be a waste, it is a

measure which indicates his non-disability for

Social Security purposes (App. 13 and 14).

4. The Appeals Council’s Action

Your request for review of the administrative

law judge’s decision has been carefully consid-

ered by the Appeals Council... .

The Appeals Council has concluded that this

decision is correct .. . Accordingly, the adminis-

trative law judge’s decision stands as the final

decision of the Secretary in your case (Action of

October 2, 1974: Pl. Ex. 2, App. 16).

Wenzel believed that the measure of the administra-

tive law judge would not have been set forth had there

not been basis for it in the administrative law. He under-

stood the measure to be not other than an explicit settling

Pe eee ae

3

of his case, a summary foreclosing of any possibility of a

successful administrative review or court action. He was

then going to college, intended to continue, and did so

for the next five years (App. 126, 127, 150, 151, 152): he

did not file a timely request for administrative review; he

did not file a timely court action.

5. Wenzel’s Disability Report

Wenzel, on August 1, 1988, filed a Disability Report,

Pl. Ex. 4 (App. 104). His submission did not seek retroac-

tivity (he had not yet reread the Hearing Decision); it did

not refer to any prior SSA proceedings. It acknowledged

that he did not meet the earned income requirement for

the decade preceding the year in which he last worked; it

asked for consideration of the fact that he had been in a

vocational-rehabilitation program for three of the ten

years.

His submission was tendered at that time because he

had then, on account of excessive activity, or unstable

shrapnel, or ageing process, or some combination thereof,

been back on the crutches for a time. His reckoning was

that the matter of the “measure” of “non-disability” was

then sufficiently distant: it had been nine years since he

had gone to college. His problem was that it had been

eight years since he had gone to work.

6. The Office of Disability Director’s Disapproval

We have determined that you are not entitled to

disability benefits. The reason you are not enti-

tled is that you do not meet the earnings

requirement of the law at the time you state you

became disabled or at any later date.

It is important for you to know that we have not

made any determinations as to whether or not

you are disabled within the meaning of the law.

Since you do not meet the earnings requirement,

aia: |

4

it has not been necessary to decide whether you

meet the disability requirement (Notice of Dis-

approved Claim of August 14, 1988: Pl. Ex. 5,

App. 18). )

Wenzel recognized the Catch-22 here: if he did work,

he would have no basis for a claim; if he did not work, he

would have no status for a claim. What, however, to do?

Request reconsideration of the consideration he had

already requested and been denied? He could not see

here (he had not yet reread the Hearing Decision) that he

was other than caught: he did not request reconsidera-

tion.

7. Wenzel’s Narrative, the First Showing of Error on

the Face of the Evidence

Wenzel, on May 1, 1992, sent the director a letter and

a Narrative (he had reread the Hearing Decision) that

pointed out what the reread document itself revealed: the

ALJ’s unrealizing establishment of a listed impairment,

chronic venous insufficiency. The letter asked for the

correction of error, this quite openly intentional (App. 146

and 147), on the face of the Hearing Decision’s medical

evidence declared “in evidence” (App. 12 and 13).

8. The Director’s Letter

Our records show that you were allowed a

closed period of disability for the period of

October 1968 through May 1969 and terminated

June 1969.

Our records further show that you last met

insured status March 31, 1977. There is nothing

to show that the information in our letter to you

dated August 14, 1988 has changed the decision |

in that letter (Letter of July 13, 1992: Pl. Ex. 6,

App. 20).

5

The director who had managed within two weeks to find

that Wenzel’s not meeting the earnings requirement suf-

ficed for the disapproval of his Disability Report now

needed ten to find that the requirement was as well

invocable for his letter and what was not to receive so

much as mention, his Narrative. Thus, “There is nothing

to show. .. . ” No SSA official, from that time to this, has

done other than refuse to address what the Hearing Deci-

sion shows. Not one has acknowledged the existence of

the Narrative that marks out what it shows.

9. Wenzel’s Petition for a Reopening or an Extending

of Time for Filing a Court Action

I ask that you consider, reference the Code of

Federal Regulations, whether this action [the

ALJ’s making of school attendance a “measure”

of “non-disability”] was misleading. I submit

that this was good cause for my not filing a

timely action.

I ask that you consider, reference the United

States Code, whether this Hearing Decision, one

an Appeals Council “carefully considered” “cor-

rect,” is, in and of itself, conclusive evidence of

error on the face of the evidence, of error plainly

intentional — of gross abuse of discretion.

I ask that you consider, reference the Constitu-

tion of the United States, whether I was denied

due process of law.

I declare, under penalty of pertinent law, that I

have made a true representation to the Appeals

Council.

[Signed and dated. ]

Enclosures

ALJ William H. Yim’s May 21, 1974 Hearing

Decision

Appeals Council’s October 2, 1974 Action

6

My September 30, 1995 Narrative

My 1962-63 and 1967-68 service records (Petition of

September 30, 1995: Pl. Ex. 16, App. 157 and 158).

10. The Appeals Council’s Order

In accordance with Social Security Administra-

tion regulations, the Appeals Council may,

where good cause is shown, extend the time in

which to commence a civil action (20 CFR

404.982-911).

From its review of this case, the Council notes

that you received the denial notice timely and

you were aware of the 60-day time limit for

— filing a civil action. Your contention that you did

file [sic] a civil action because you believed the

Administrative Law Judge’s decision was cor-

rect and you now are of the opinion the decision

was incorrect does not constitute good cause to

extend the filing limit for filing a civil action, in

accordance with the above-cited regulations.

Moreover, contrary to your assertion, the

Administrative Law Judge’s consideration of

your ability to attend college is required by

section 404.1529 which requires the consider-

ation of daily activities in assessing the cred-

ibility of an individual’s subjective complaints.

After carefully considering the circumstances in

this case, the Appeals Council is not persuaded

that good cause for an extension of the time in

which to commence a civil action has been

shown. The request is, therefore, denied (Order

of March 6, 1996: Pl. Ex. 24, App. 22).

The Appeals Council that would not for five months

respond to the Petition then did so only because Wenzel

had written to a special assistant to the President (Letter

and Attachment of January 8, 1996: Pl. Exs. 19, 20, App.

159, 160, 161, 162, 163), who wrote to the SSA chief of staff.

:

:

:

|

7

The Appeals Council that would falsely construct

“Your contention” simply joined what Wenzel “believed”

in the Petition’s third paragraph to what a 1974 Appeals

Council considered “correct” in its fifth (App. 157 and

158).

The Appeals Council that would not speak to the

ALJ's self-evident considerations of altering, synonymiz-

ing, and expunging evidence that indicated a listed

impairment, would not speak to the ALJ’s establishment

of that which he denied, would speak to the ALJ’s requi-

site consideration: this toward an assessment of “the

credibility of an individual’s subjective complaints.”

The Appeals Council of an agency that provides ben-

efits and funding for school attendance for a substantial

number of those it has assigned “disability” would now

attempt to defend an ALJ’s making of school attendance a

“measure” of “non-disability.”

11. The District Court Proceedings

Wenzel, on November 15, 1996, as plaintiff pro se in

Case CV-S-96-01063-HDM-(LRL) in the United States Dis-

trict Court for the District of Nevada, filed Complaint.

Wenzel, on January 15, 1997, the SUMMONS of a

United States District Court having simply been ignored

by the Commissioner of Social Security, filed Motion for

entry of default.

The Commissioner, on January 16, 1997, proffered

Stipulation for Extension of Time to Answer (App. 46 and

47), the extension sought “due to a delay in the prepara-

tion of the Administrative Records and suggested

Answer to the Complaint.” (Wenzel assented.)

The District Court, on February 10, 1997, because

Wenzel’s copy of the Motion for default received by the

U.S. Attorney was addressed to her, was not addressed to

her Civil Process Clerk, entered ORDER (App. 24) deny-

ing the Motion.

v——— mmm nema

8

The Commissioner, on March 6, 1997, filed Motion

for Remand (App. 48), wherein “The Appeals Council

wishes to take further administrative action in this case”

(App. 50), wherein “voluntary” remand was sought in

order to find Wenzel’s “missing” claim file (App. 51).

Wenzel, on March 14, 1997, filed Response to Motion

for remand, which asked for a denying of remand.

The District Court, on April 21, 1997, entered ORDER

(App. 25) granting remand.

The Commissioner, on September 17, 1997, filed

Motion to Dismiss Plaintiff's Complaint (App. 53), this

incorporating Points and Authorities Statement of Facts,

wherein was made known the fact that what had been

“missing” six months earlier was now “destroyed” (App.

55); and Declaration of Wilbur J. Laub, wherein the Chief

of Court Case Preparation and Review Branch 1 acknowl-

edged (App. 66) that in fact he held what was rendered a

reconstruction and presented as Def. Ex. 5 (App. 70):

Wenzel’s Disability Report.

The Commissioner concurrently filed Motion to

Vacate this Honorable Court’s ORDER of April 24 [sic],

1997, and to Reopen the Instant Civil Action (App. 85).

The District Court, on November 4, 1997, entered

ORDER (App. 26) vacating remand, and giving Wenzel

sixteen days from that day to file a response to Motion to

dismiss.

Wenzel, on November 14, 1997, concurrently filed

Response to Motion to dismiss and Motion for decision

on the merits of this case.

The District Court, on February 24, 1998, entered

ORDER (App. 27) granting Motion to dismiss this case.

20s Ritabige

9

12. The Commissionér’s Points and Authorities State-

ment of Facts, and Declaration of Wilbur J. Laub

On May 21, 1974, an Administrative Law Judge

issued a decision finding that the Plaintiff is

[sic] not under a disability (Exhibit 3 of Declara-

tion (pages 7ff are unavailable)). On October 2,

1974, the Appeals Council denied Plaintiff’s

request for review of that decision. Although

advised of the right to commence a civil action

within 60 days of receipt of the notice, such

action was not commenced (Exhibit 4 of Decla-

ration) (App. 56).

The Commissioner’s modus operandi, well-nigh mes-

merizing in the beauty of its simplicity, would be in the

judicial proceedings what it was in the administrative

review process. Make mention of the procedural: an ALJ

denied disability; make no mention of the substantive: an

ALJ at once established what he denied.

What an ALJ did do in place, what Wenzel within

sixty days did not do is then the only issue at hand. The

modus developed: if there is no need for consideration of

substantive fact, then there is no need for consideration

of relevant law, such as the one that provides for the

Commissioner’s tolling of filing periods, 42 U.S.C.

§ 405(g).

How did the Commissioner happen to have the Hear-

ing Decision (Def. Ex. 3)? Have this particular document

from “the official files” of Wenzel’s 1972 claim, these then

“unavailable,” indeed, “destroyed”? Have that from what

was in the fourth month of judicial proceedings reported

“missing” and in the tenth reported “destroyed”?

The Commissioner does not say in “Points,” nor does

the Chief say in “Declaration,” just when these official

files were destroyed. Just when, on whatever date, will

10

but affirm one of two possibilities: there was false repre-

sentation to a United States District Court or there was

destruction of evidence during its proceedings.

The Commissioner happened to have the Hearing

Decision, less one page that was “unavailable,” received

(with Wenzel’s Petition) by the Appeals Council. What

page was now the missing page? The one with the ALJ’s

signature.

What is also missing, in the Commissioner’s recital of

the procedural facts that an ALJ denied disability and an

Appeals Council denied review, is mention of what was

stated by the Appeals Council: its denial was a “final

decision.” What is missing is what would be somewhat

harmful to his argument that indeed there has been no

“final decision.”

The Plaintiff has failed to exhaust his adminis-

trative remedies with respect to his claim for

benefits and, therefore, there has been no “final

decision” of the Commissioner as contemplated

by Section 205(g) of the Act, 42 U.S.C. § 405(g)

(App. 55).

Just where the plaintiff failed to exhaust his adminis-

trative remedies:

On August 2, 1988, Plaintiff filed his third appli-

cation for disability insurance benefits, alleging

onset of disability commencing March 12, 1980

(Exhibit 5 of Declaration). This application was

denied by notice dated August 14, 1988.

Although advised of the right to request recon-

sideration of the determination within 60 days

of receipt of the notice, such request was not

made. Plaintiff was also advised by notice dated

June 27, 1988, that he is [sic] ineligible for sup-

plemental security income benefits (Exhibit 6 of

Declaration) (App. 56).

The Commissioner who would refuse to acknowl-

edge the District Court’s SUMMONS for two months,

ad A INS. a Tah

11

who would “hen need an extension of two months, who

would then need a remand of six months, who would

need ten months to find something that might provide a

basis for an argument, would find that something in what

he had by then known for nine years: Wenzel had not

requested reconsideration of the disapproval of his Dis-

ability Report.

Concerning the above four statements in the Com-

missioner’s Statement of Facts, last first. Wenzel has never

applied for SSI: it is neither mentioned nor alluded to in

anything ever received from him by the Commissioner.

The fact that he has never applied, a matter of nonrecord,

becomes elsewhere, in a certain expedient Reconstruction

(App. 73), by a forgetful reconstructor, a matter of record.

The unsigned “notice dated June 27, 1988” is nonsen-

sical even in its date: Wenzel had no communication with

the SSA from October of 1974 to August of 1988. (A

number of things in this particular venture of the Com-

missioner went awry: the director’s disapproval of the

Disability Report is his Exhibit 6; the fabrication dated

June 27, 1988 —- App. 83 - is not labeled as an Exhibit.)

Wenzel’s Disability Report (App. 104) does not allege

disability commencing March 12, 1980. It unequivocally

states (App. 105 and 106) what his medical record and

work-history (not to mention an ALJ’s Hearing Decision)

unequivocally show: his disability did not commence in

March of 1980, it commenced in March of 1968.

The Commissioner’s Disability-Report reconstruc-

tion, this proffered when he knew that the original had

been received as Pl. Ex. 4 by the District Court, when

indeed the original was acknowledged to be held by an

unmindful Chief, the reconstruction replete with a photo-

static imposition of Wenzel’s signature (App. 81), is the

Commissioner’s attempt to make this case two cases: to

then make all turn on one.

The one to serve as pivot is the one in which there is

the second showing of what Wenzel within sixty days did

12

not do. If there has been no exhaustion of administrative

remedies in, then there has been no “final decision” in,

the second case. Does this not indeed invalidate the “final

decision” in the first?

Regarding whether there were in fact in the second

any administrative remedies to exhaust, Wenzel’s not

requesting within sixty days reconsideration of the disap-

proval of his Disability Report revisited. He did not

request reconsideration of the consideration he had

already requested (App. 123) and, within two weeks and

without so much as its mention, been denied (App. 18).

He was accorded one, and only one, consideration:

“{Y]ou do not meet the earnings requirement of the law.”

Wenzel, in his Disability-Report acknowledgment

that he did not have insured status, asked for consider-

ation of what he believed to be the considerable aspect of

his nonstatus, did not ask for a conferment of retroactive

status. That aspect summarily denied consideration, the

only thing that he could have asked for in a request for

reconsideration would have been a conferment.

The Commissioner who would so confer would have

broken the law; the claimant who would ask him to do so

might well have. Thus, the character of the Commis-

sioner’s ten-months-in-the-finding basis for an argument,

Wenzel’s failure to exhaust his administrative remedies.

Does the Commissioner’s argument indeed make two

cases, with the second’s “no final decision” rendering

inoperative the first’s “final decision”? There is the Com-

missioner’s answer in April of 1996, and there is his

answer in September of 1997.

The Commissioner who would not, in March of 1996,

in his Order denying reopening, find it necessary to

attempt to make two cases, to even make mention of what

was and was not done over August-October of 1988:

On March 6, 1996, the Appeals Council denied a

request for an extension of time to file a civil

CRAIG 5 Bit EATS,

ape eee ee —_

13

action and a request for reopening. The Council

has now received your letter dated March 18,

1996.

The Appeals Council considered the contentions

raised in your letter but concluded that these

contentions do not provide a basis for vacating

its previous action in this case.

The Council has decided there is no basis to

grant the request for an extension of time to file

a civil action nor is there any basis for reopening

the hearing decision dated May 21, 1974.

Accordingly, that decision stands as the final

decision of the Commissioner on the application

dated September 13, 1972 (Letter of April 15,

1996: Pl. Ex. 29, App. 23).

The Commissioner who would, in September of 1997,

in his Motion to dismiss, find it necessary:

The Plaintiff herein has failed to pursue and

exhaust those remedies with respect to his claim

for benefits provided by the Act and Regula-

tions promulgated thereunder as set forth

above.

Since there has been no hearing before an

Administrative Law Judge in this case, no “final

decision” of the Commissioner has been ren-

dered. Thus, there is no decision subject to judi-

cial review. . . . [Citations omitted.]

This need for administrative exhaustion and

strict application of Section 205(g) of the Act

was clearly upheld in the case of Califano v.

Sanders, 430 U.S. 99, 108 (1977) (App. 61).

13. The District Court’‘s ORDER of Dismissal

This is an action pursuant to 42 U.S.C. sec.

405(g) and 42 U.S.C. sec. 1383(c) for judicial

review of the denial of the plaintiff’s claim for

14

benefits under Title II of the Social Security Act.

This matter is before the court on defendant’s

motion to dismiss for failure to exhaust adminis-

trative remedies (#10) (App. 28).

The District Court, in its first sentence on its first

page, in making successful the Commissioner’s venture

to insert SSI into this case, discloses what is manifest

right through to its last on its last: it would not be

bothered to make so much as pretension to judicialness.

What would be the District Court’s response to hav-

ing been shown, in Wenzel’s Complaint and thirty-three

Plaintiff Exhibits, to having again been shown, in the

Commissioner’s profferings, the latter’s modus operandi?

Its response would be to take the modus, entire, and

make it its own.

The ORDER of dismissal will take the structure of the

Motion to dismiss, right down the line, and make it its

own. The facts as stated by the District Court will be,

except for one, the facts as stated by the Commissioner.

Indeed, the very language of the one will seldom stray

from close paraphrase of that of the other.

The District Court will, in “Administrative Proceed-

ings,” recite the record. Its record will include, as a verify-

ing (the word of its preeminent authority sufficing) of a

certain entering, this entry: “On June 27, 1988, the admin-

istration notified Wenzel that he was ineligible for sup-

plemental security income benefits” (App. 29).

It will next, in “Discussion,” cite “in pertinent part”

Section 205(g) of the Social Security Act.

Any individual, after any final decision of the

Commissioner of Social Security 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

15

time as the Commissioner of Social Security may

allow (App. 30).

The District Court will see as pertinent part this

section’s first sentence, to which it supplies emphasis; it

will not see as pertinent part its fifth, in which abides a

certain corollary: “The findings of the Commissioner as to

any fact, if supported by substantial evidence, shall be

conclusive... . ”

It will then allocate one of its six pages to a discus-

sion of what is and is not a final decision. Just why the

District Court would see this as necessary is not readily

apparent: it will, on its next page, find that in this case

there both is and is not a final decision.

The District Court will here, Section 205(g)’s first

sentence at hand, repeat Administrative Proceedings’

received operative facts. It will, the procedural elements

of the facts and the pertinent part of the law in place,

render judgment.

On the second application, Judge Yim found

that the plaintiff was not under a disability. On

October 2, 1974, the Appeals Council denied a

Request for Review, which then became the

administration’s final decision. The plaintiff had

60 days from the date he received notice of the

decision to seek judicial review. Because the

plaintiff failed to file a complaint within the

specified time period, he is barred from seeking

judicial review of that decision (App. 31).

It will now, in its one departure from the Commis-

sioner’s script, find that there is a final decision (it will,

in its next paragraph, find that there is not a final deci-

sion). No matter: Wenzel is barred, and there is no need

to provide precedent for the barring, from seeking judi-

cial review of the final decision.

The fact of error on the face of the evidence? The

regulations that directly speak to such fact? The law

whose fifth sentence’s corollary is that the findings of the

16

Commissioner as to any fact, if not supported by substan-

tial evidence, shall not be conclusive? The case law estab-

lished by long-standing decisions of the Supreme Court

that provide definitive precedent for the judicial tolling of

filing periods?

If the substantiveness of the first question is not

allowed (“Judge Yim found that the plaintiff was not

under a disability”), then there is no first question and

there are no further questions. If there is no allowance of

substantive fact, then there are no pertinent parts of

regulation, law, and case law.

If, however, there is procedural fact, then there is

indeed pertinent case law:

On Wenzel’s third and final application, the

administration made the initial determination

that he did not meet the earnings requirement

under the Social Security Act. Although the

plaintiff was advised of the right to file a

Request for Reconsideration at the time the

administration denied his application, he failed

to do so. Thus, there is no “final decision” of the

Commissioner. Because the plaintiff failed to

exhaust his administrative remedies, this court

is without jurisdiction to review the administra-

tion’s decision. Hoye v. Sullivan, 985 F.2d 990,

991 (9th Cir. 1992) (App. 32).

The District Court will, in its return to its guide, find

that there is not a “final decision.” It will do so when it

knows the fact: the only administrative remedy available

to the plaintiff had been requested and denied, had been

exhausted; when it knows the law: the requirement that

administrative remedies be exhausted, one of the two

elements in the final decision requirement, is the one that,

toward District Court jurisdiction, can be equitably

tolled. It will, in a case where a claimant “refused to

appear at a scheduled hearing” (Hoye at 990), find prece-

dent for its misstating of both fact and law.

17

The plaintiff also seeks judicial review of his

petition to re-open his case or, in the alternative,

an extension of time within which to file a court

action. In an order, dated March 6, 1996, the

Appeals Council denied both of plaintiff’s

requests. The plaintiff cannot seek judicial

review of this decision. In Califano v. Sanders, the

Supreme Court held “an interpretation that

would allow a claimant judicial review simply

by filing - and being denied - a petition to re-

open his claim would frustrate the congressional

purpose, plainly evidenced in section 205(g), to

impose a 60-day limitation upon judicial review

of the Secretary’s final decision denying [sic] the

initial claim for benefits.” 430 U.S. 899 [sic] 108.

Accordingly, the defendant’s motion to dismiss

is granted (App. 32).

The District Court will, in its close, see as pertinent part

one sentence in Sanders’ seven pages. It will do so when it

knows that this sentence and the one following are a

specific address to repetitive filings of frivolous petitions

to reopen; when it knows that the Supreme Court's close,

this directly following the address invoked, reemphasizes

that judicial review of a denial of a petition to reopen,

when there is a colorable constitutional claim, is not

barred: it is presumed.

It will not see as pertinent parts two sentences at 983

of Sanders. The claimant had not, it was found in his first

claim, “demonstrated a relevant disability of sufficient

severity.” Nor could he in his second. The ALJ who then

denied reopening, whose findings were not seen by the

Supreme Court as controversial, had concluded that there

was no new and material evidence, that there were “no

errors on the face of the evidence.”

18

This claimant’s demonstration of an establishment of

a listed impairment in a Hearing Decision: of error on the

face of the evidence? (It does not matter if it is not

mentioned.)

14. The Court of Appeals Proceedings

Wenzel, on June 18, 1998, as appellant pro se in Case

98-15857 in the United States Court of Appeals for the

Ninth Circuit, filed Informal Brief. —

The Commissioner, on July 9, 1998, filed Brief (App.

87).

Wenzel, on July 22, 1998, filed Reply Brief.

The Court of Appeals Panel, on October 26, 1998,

entered MEMORANDUM? affirming the District Court's

dismissal. *Footnote: “This disposition is not appropriate

for publication. ... ” (App. 38).

Wenzel, on December 10, 1998, filed Petition for

Rehearing With a Suggestion of Appropriateness of

Rehearing En Banc.

The Panel, on February 8, 1999, entered ORDER

rejecting suggestion and denying rehearing (App. 40).

15. The Commissioner’s Brief |

The Commissioner runs to the fore twenty 20 CFR

Chapter III regulations, §§ 404.988 and 404.989 not in the

running. He will come no closer than § 404.968, in the

pertinent twenty, to the nonpertinent two (App. 90).

He cites sixteen pertinent, when not indeed analo-

gous, cases, Weinberger v. Salfi, Mathews v. Eldridge, and

Bowen v. City of New York in the citing. (Not to mention

Califano v. Sanders and Hoye v. Sullivan) (App. 89).

The Commissioner’s argument before the Court of

Appeals is in the main a belaboring of the one before the

District Court. The one variation is that he does here

19

defer to the District Court, in the one instance of role-

reversal, in allowing that there is, at the same time aver-

ring that there is not, a “final decision.”

The one addition is that he does now make mention

of what he did not make mention of to the District Court

(the Commissioner’s nonmention quite sufficient for the

District Court’s nonmention), the matter of whether or

not Wenzel has a constitutional claim. The Commissioner

will now say that Wenzel has no such claim.

This Court, in applying the rule enunciated in

Califano v. Sanders, has held that in circum-

stances virtually identical to those presented in

this case, a district court has no jurisdiction to

review the Secretary’s discretionary refusal to

reopen a claim which has become adminis-

tratively final, to consider an untimely request

for review or to grant an extension of time to

seek review unless a colorable constitutional

violation is alleged. [Citations omitted.] Plain-

tiff’s due process claim (at p. 4 [sic] of his infor-

mal brief) is totally without any substantiation

and is entirely meritless. Thus, the constitu-

tional claim clearly is not colorable and “is

made solely for the purpose of obtaining juris-

diction.” Hoye v. Sullivan . . . at 991-992. Accord-

ingly, the district court’s action dismissing the

civil action for lack of jurisdiction was correct

and consistent with the caselaw of this Circuit

(App. 99).

16. The Panel’s MEMORANDUM of Affirmance

Robert M. Wenzel appeals pro se the district

court’s dismissal for lack of subject-matter juris-

diction of his appeal from the Commissioner’s

denial of Wenzel’s September 1972 application

for disability benefits and his motion to reopen

f his disability application for that year. We have

20

jurisdiction pursuant to 28 U.S.C. § 1291. We

review de novo, see Evans v. Chater, 110 F.3d

1480, 1481 (9th Cir. 1997), and we affirm.

Because Wenzel’s attempt to seek judicial review

of the Commissioner’s denial of his September

1972 application for disability benefits was

untimely, the district court properly concluded

that it lacked subject-matter jurisdiction over

this claim. See 42 U.S.C. § 405(g) (App. 38).

The Panel will not, right after the operative modus of

the Commissioner and the District Court, address the fact

that it has been shown, that the findings of the Commis-

sioner in the September 1972 application that resulted in

the May 1974 Hearing Decision were not just unsup-

ported by substantial evidence: they were, however inad-

vertently, patently confuted in the Hearing Decision. (The

Commissioner and the District Court would, as pro-

cedural fact, make mention of the Hearing Decision; the

Panel will show them how it ought to be done: make no

mention.)

It will, per the expedient modus, address the fact that

the seeking of judicial review was untimely, will then

advise on what ought to be seen. Does it matter that

§ 405(g) speaks to both of the facts? That there is no law

or case law that provides for the waiving of the one? That

there is case law that provides for the waiving of the

other? (Not if the one is not mentioned.)

Because the Commissioner’s denial of Wenzel’s

motion to reopen his 1972 application for bene-

fits was not a final reviewable order under

§ 405(g), the district court also correctly dis-

missed this claim. See Evans . . . at 1482 (App.

39).

The Panel that will not mention what was in 1974

(this being reaffirmed in 1996) a “final decision” will

mention what was not (in 1996) a “final reviewable

order,” will then point to what needs to be seen. The term

21

is not to be seen in § 405(g): the apropos “final” appears

once, the word that follows is “decision.” Nor is it to be

seen in Evans.

Thus does the Panel, here evasively, there termi-

nologically, maneuver: the better to stand clear of the

reckoning of the District Court, this then allowed by the

heretofore evasive Commissioner, that there both is and is

not a “final decision” in this case.

Moreover, Wenzel failed to raise a colorable con-

stitutional claim to enable the district court to

review the denial of his motion to reopen. See

Hoye . . . [at] 991-992 . . . (per curiam); cf.

Evans .. . at 1482-84 (concluding that appellant's

due process claim, which asserted that he had

been denied a meaningful opportunity to be

heard, conferred jurisdiction upon the district

court to address this claim).

AFFIRMED.! (App. 39).

What is to be seen, concerning what Wenzel failed to

raise for the District Court, this being what the thought-

ful Panel would find for the District Court, what the

unthoughtful latter had not found for itself, is the case of

Mr. Stewart Hoye, who had his case dismissed because he

refused to appear at a scheduled hearing. The case of one

who appeared at a scheduled hearing, who received a

Hearing Decision flawed in almost every imaginable

way? (It does not matter if it is not mentioned.)

What is to be compared is the case in which the

Ninth Circuit found that a District Court erred in its

conclusion that “it lacked jurisdiction” because “a refusal

to reopen was not a final decision under 42 U.S.C.

§ 405(g)” (Evans at 1481), found that “the district court

had jurisdiction to consider Evans’ constitutional due

process claim on the merits” (Ibid. at 1483); is the case in

which it found that the District Court did not err in its

alternative conclusion (perhaps made ready in the event

22

that it did not lack jurisdiction) that Evans had no consti-

tutional due process claim on the merits. (Evans at

1483-84).

What is to be compared is the case of Mr. Alton

Evans, in which this Ninth Circuit sum and substance:

The record demonstrates that the Commissioner

considered and weighed the medical evidence in

reaching her determination. . . . The district court

did not err in its alternative conclusion that the

Commissioner’s refusal to reopen is supported

by substantial evidence. (Ibid. at 1484).

The case in which the record demonstrates that the

Commissioner would not even mention the medical evi-

dence, that his refusal to reopen is not supported by any

evidence? (As before.)

What would be given only footnote treatment in the

Panel’s MEMORANDUM is what had been more promi-

nent in the District Court’s ORDER of dismissal, the

concocted argument in the Commissioner’s Motion to

dismiss.

"To the extent that Wenzel contends that the

district court erred by dismissing his appeal

from the Commissioner’s denial of his August ~

1988 application for disability benefits, we reject

this contention because Wenzel failed to exhaust

his administrative remedies with respect to this

claim. See Hoye... at 991 (App. 39).

The Panel that reviewed de novo knew, if it reviewed

Wenzel’s Complaint and the Commissioner’s “Points” in

his Motion to dismiss, that this was not, to any extent,

Wenzel’s contention; that this was, to the extent of being

the ten-months-in-the-finding basis for his argument, the

Commissioner’s construction. It knew, if it reviewed

Wenzel’s Disability Report and its summary Disapproval,

what the Commissioner and the District Court knew: that

Wenzel had indeed exhausted his one possible adminis-

trative remedy.

23

What would be given rather more prominent place in

the Panel’s MEMORANDUM of affirmance is what had

not been given any place in the District Court’s ORDER

or the Commissioner’s Motion, what had only later taken

place in the Commissioner’s Brief, what the Panel would

then make its centerpiece: “Wenzel failed to raise a color-

able constitutional claim... . ”

The Panel would deal with the issue of Wenzel’s

constitutional due process claim by simply saying, after

the Commissioner, in its NOT-FOR-PUBLICATION MEM-

ORANDUM, that he has none. His having none in place,

its precedent is at hand. Not to matter that in the two

FOR-PUBLICATION cases that it cites, as in all others,

the plaintiffs’ having or not having such claim is not

simply told, it is requisitely shown.

Thus, the Statement. The basis for federal jurisdiction

in the court of first instance is 42 U.S.C. § 405(g).

REASONS FOR GRANTING

THE WRIT AND REQUEST

The Administrative Law Judge who in his Hearing

Decision (App. 3) denied Wenzel’s disability at once, in

his presentation of the medical evidence, in his reproduc-

tion of “superficial varicosities” and “stasis dermatitis”

and “venous ulcer” (App. 12), established, unwittingly

enough, Wenzel’s listed impairment of chronic venous

insufficiency.

20 CFR Ch. III, § 404.1520 Evaluation of disabil-

ity in general...

(d) When your impairment(s) meets or equals a

listed impairment in appendix 1. If you have an

impairment(s) which meets the duration

requirement and is listed in appendix 1 or is

equal to a listed impairment(s), we will find you

disabled without considering your age, educa-

tion, and work experience.

24

Appendix 1, Part 404, Subpart P.. .

4.11 Chronic venous insufficiency of a lower

extremity. With incompetency or obstruction of

the deep venous system and one of the follow-

ing:

A. Extensive brawny edema; OR

B. Superficial varicosities, stasis der-

matitis, and recurrent or persistent ulceration

which has not healed following at least 3

months of prescribed medical or surgical ther-

apy.

The ALJ’s open tampering with the medical evidence

and his making of Wenzel’s school attendance an illicit

“measure” of “non-disability,” these aspects and a

number of others marked in Wenzel’s Narrative (App.

130-155), make plain that this was an intentional error,

that this was a deliberate deprival of due process of law.

§ 404.988 Conditions for reopening

A determination, revised determination, deci-

sion, or revised decision may be reopened -...

(c) At any time if-...

(8) It is wholly or partially unfavorable to a

party, but only to correct clerical error or an

error that appears on the face of the evidence

that was considered when the determination or

decision was made.

§ 404.989 Good cause for reopening

(a) We will find that there is good cause to

reopen a determination or decision if —.. .

(3) The evidence that was considered in mak-

ing the determination or decision clearly shows

on its face that an error was made.

The Appeals Council that in its Order (App. 21)

denied reopening would not even try to controvert what

it had been shown, error on the face of the evidence. It

would, while refusing to see and hear, speak:

25

On October 2, 1974, the Appeals Council denied

a request for review of an Administrative Law

Judge’s decision on this case. The Council has

now received a request for reopening of the

decision and, if reopening is declined, a request

for an extension of time in which to commence a

civil action.

In accordance with Social Security Administra-

tion Regulations, a decision may be reopened

within specified time limits on the basis of new

and material evidence or if the evidence consid-

ered in making the decision clearly shows on its

face that an error was made (20 CFR 404.987-

989).

The specified time limits for reopening a deci-

sion are four years from the date of the initial

determination. In this case, the initial deter-

mination was made over 20 years ago. Clearly,

there is no regulatory basis to reopen and revise

the initial determination denying your applica-

tion for a period of disability and disability

insurance benefits (App. 21).

The Appeals Council’s refusal to address what it had

been shown and its false representation of the regulations

make clear that this was a calculated deprival of due

process of law.

The District Court that dismissed this case for lack of

jurisdiction proceeded to its lack by refusing to make

mention of the substantive attributes of the procedural

facts that Wenzel’s disability and reopening of his case

had been denied. It then had no reason to make mention

of “due process of law” or “colorable constitutional

claim” or anything of the kind.

The Court of Appeals Panel that affirmed the dis-

missal arrived at its decision by refusing to allow the

elemental merits that the District Court had refused to

allow. It then, prompted by the Commissioner in his

26

Brief, came to an understood-as-decisive finding in its

MEMORANDUM, found for the District Court what that

Court, having had no reason, had not found in its

ORDER: “Wenzel failed to raise a colorable constitutional

claim to enable the district court to review the denial of

his motion to reopen.”

Concerning this state of affairs, this Court:

For it is well settled that the failure to state a

Proper cause of action calls for a judgment on

the merits and not for a dismissal for want of

jurisdiction. Whether the complaint states a 4

cause of action on which relief could be granted

is a question of law and just as issues of fact it

must be decided after and not before the court

has assumed jurisdiction over the controversy. If

the court does later exercise its jurisdiction to

determine that the allegations in the complaint

do not state a ground for relief, then dismissal

of the case would be on the merits, not for want

of jurisdiction. [Citations omitted.] The previ-

ously carved out exceptions are that a suit may

sometimes be dismissed for want of jurisdiction

where the alleged claim under the Constitution

or federal statutes clearly appears to be imma-

terial and made solely for the purpose of obtain-

ing jurisdiction or where such a claim is wholly

insubstantial and frivolous. The accuracy of call-

ing these dismissals jurisdictional has been

questioned. (Citations omitted.)

(Bell v. Hood, 66 S.Ct. 773 (1946), at 776.) P

This Court, in its reversal of the Ninth Circuit in this i

case, made plain that a speaking of insubstantiality must :

be accompanied by a showing, that saying it is so does

not make it so. This Circuit’s Panel, that did nothing more

in its MEMORANDUM than say what the Commissioner

simply said in his Brief, would now make plain that

saying it is so does make it so.

27

It is for the District Court now to determine

whether the Secretary’s findings, in the light of

all material proffered and admissible, are sup-

ported by “substantial evidence” within the

command of § 205(g). (Richardson v. Perales, 91

S.Ct. 1420 (1971), at 1432.)

The District Court, in its referencing of § 205(g),

would only mention its first sentence, this found to be the

“pertinent part.” Its fifth, in which abides what is com-

manding, on the word of this Court, would be utterly

ignored by that Court.

The Panel, in its referencing, would find the pertinent

part the part so found by the District Court. “The Com-

missioner’s findings” and “supported by substantial evi-

dence,” phrases not to be found in the District Court's

ORDER, are not to be found in the Panel’s MEMORAN-

DUM.

[A] decision denying § 205(g) jurisdiction in

Salfi or Eldridge would effectively have closed

the federal forum to the adjudication of color-

able constitutional claims. Thus those cases

merely adhered to the well-established principle

that when constitutional questions are in issue,

the availability of judicial review is presumed,

and we will not read a statutory scheme to take

the “extraordinary” step of foreclosing jurisdic-

tion unless Congress’ intent to do so is mani-

fested by “” ‘clear and convincing’ ” evidence.

[Citations omitted.]

This is not one of those rare instances where the

Secretary’s denial of a petition to reopen is chal-

lenged on constitutional grounds. Respondent

seeks only an additional opportunity to estab-

lish that he satisfies the Social Security Act's

eligibility standards for disability benefits.

Therefore, § 205(g) does not afford subject-mat-

ter jurisdiction in this case. (Califano v. Sanders,

97 S.Ct. 980 (1977), at 986.)

28

The Commissioner who would speak of this case, in

which the claimant had never demonstrated a “relevant

disability,” to both the District Court and the Panel would

only to the latter speak of “constitutional claim.” His

appraisal in the citing for the former would speak of

“administrative exhaustion” and “final decision”; the one

in the one for the latter would speak of “final decision”

and “constitutional violation.” He would then apprise the

latter that the circumstances of Sanders’ case and those of

Wenzel’s case are “virtually identical.”

The District Court that would speak of this case

would not speak of “constitutional claim.” Its precedent

would be found in one sentence, the one that addresses

repetitive filings of insubstantial claims. It would then,

effectively, make the showing of an establishment of a

listed impairment in a Hearing Decision analogous to the

seeking of an Opportunity to establish a disability in a

judicial review.

The Panel that would not speak of this case would

speak of “constitutional claim.” Its precedent would be

found in two cases, one in which the claimant “refused to

appear at a scheduled hearing,” and one in which it was

Shown that the claimant had never demonstrated a “men-

tal incapacity.” The Panel would then, unwilling to make

Precedent, unable to find it, simply impose it.

We must determine, therefore, whether equita-

ble tolling is consistent with Congress’ intent in

enacting § 405(g), and whether tolling is appro-

priate on these facts. The statute of limitations

we construe in this case is contained in a statute

that Congress designed to be “unusually protec-_

tive” of claimants. Heckler v. Day, 467 U.S., at

106, 104 S.Ct., at 2251. Moreover, Congress has

authorized the Secretary to toll the 60-day limit,

thus expressing its clear intention to allow toll-

ing in some cases. While in most cases the Secre-

tary will make the determination whether it is

29

proper to extend the period within which

review must be sought, cases may arise where

the equities in favor of tolling the limitations

period are “so great that deference to the

agency’s judgment is inappropriate.” Eldridge,

424 U.S., at 330, 96 S.Ct., at 900. As in Honda v.

Clark, we conclude that application of a “tradi-

tional equitable tolling principle” to the 60-day

requirement of § 405(g) is fully “consistent with

the overall congressional purpose” and is

“nowhere eschewed by Congress.” 386 U.S., at

501, 87 S.Ct., at 1197. (Bowen v. City of New York,

106 S.Ct. 2022 (1986), at 2030.)

This Court, after its consideration of the facts of the

SSA’s “secretive conduct,” then determined that equitable

tolling was appropriate in this case. The District Court

and the Panel, after their nonconsideration of the facts of

the agency’s overt conduct, then had no reason to deter-

mine whether equitable tolling was appropriate in

Wenzel’s case.

Thus has the Commissioner who refuses to do what

the regulatory provision states that he will do been

accommodated, both in this and in his refusal to do what

the statutory provision at once authorizes and commands

him to do. His conduct, not other than a set-piece scorn-

ing of the constitutional provision, asks for the attention

of this Court.

The District Court and the Panel’s accommodative

decisions have effectively nullified this Court’s relevant

decisions.

The District Court and the Panel’s unjudicial pro-

ceedings, wherein their selective disallowance of the rele-

vant facts allows their here ignoring of and there

misstating of the applicable law, call for an exercise of the

supervisory power of this Court.

30

CONCLUSION

The findings of the Commissioner are not just unsup-

ported by substantial evidence: they are categorically

refuted by, beginning with the Hearing Decision’s medi-

cal evidence, all of the evidence. This is the fact that the

Commissioner has never even tried to deny, is one of the

facts that the District Court and the Panel elected to

disallow.

For the foregoing reasons, these constituting a mani-

fest injustice to the petitioner, the petition for writ of

certiorari and request for summary reversal should be

granted.

Respectfully submitted,

Rosert M. WENZEL

Petitioner pro se

1162 Spanish Armada Road

Las Vegas, NV 89123

(702) 361-1226

May 6, 1999

App. 1

No.

IN THE SUPREME COURT OF THE UNITED STATES

ROBERT MARSHALL WENZEL, Petitioner,

v.

Commissioner of Social Security

KENNETH STEVEN APFEL, Respondent

APPENDIX A

Plaintiff Exhibits 1, 2, 5, 6, 24, and 29 of Appendix A

were submitted with Complaint of November 15, 1996 in:

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

ROBERT M. WENZEL, Plaintiff,

v.

SHIRLEY S. CHATER, Commissioner of

Social Security, Defendant.

No. CV-S-96-01063-HDM(LRL)

App. 2

APPENDIX A INDEX

Page

Hearing Decision of Administrative Law Judge

Rrra ue el ee ee RD App. 3

Action sustaining decision of Appeals Council (PI.

PR paar Re ae RET an ae aN App. 16

Notice of Disapproved Claim of Disability Direc-

Oe ee OM nnn beh dS0 besos en swkddececcss App. 18

Letter of Director (Pl. Ex. 6)................... App. 20

Order denying reopening of Appeals Council (P1.

ee GN iedies anideueartediecereses rene App. 21

Letter of Appeals Council (Pl. Ex. 29).......... App. 23

ORDER denying default of District Court...... App. 24

ORDER of remand of District Court ........... App. 25

ORDER vacating remand of District Court ..... App. 26

ORDER of dismissal of District Court:......... App. 27

Pe GND ois. o'n b taicdncage needy iekssewcessnes App. 34

MEMORANDUM affirming dismissal of Ninth-

COE WEE <5 kab onuawessauesurdvonssanenel App. 38

ORDER denying rehearing of Panel............ App. 40

US. Comet, Amend. $....0cccccccocccccerccces App. 41

Te Cis BG dca cbiecsacvanicceioucescuses App.

42

App. 3

DEPARTMENT OF

HEALTH, EDUCATION, AND WELFARE

SOCIAL SECURITY ADMINISTRATION

BUREAU OF HEARINGS AND APPEALS

To:

a

Mr. Robert M. Wenzel

P. O. Box 8089

Honolulu, Hawaii 96815

NOTICE OF DECISION PLEASE READ CAREFULLY

If you disagree, in whole or in part, with the enclosed

decision you may request the Appeals Council to review

it. However, your request for review must be filed within

60 days following the date shown below.

You, or your representative, may file the request for

review at the nearest office of the Social Security Admin-

istration, or you may file the request for review with the

hearing office or the Appeals Council.

Unless you file a timely request for review by the

Appeals Council, you may not obtain a court review of

your case under sections 205(g) and 1869(b) of the Social

Security Act.

This notice and enclosed copy of

hearing decision mailed

May 21, 1974

CC:

Name and Address of Representative:

In the case

of

Robert M. Wenzel

App. 4

DEPARTMENT OF

HEALTH, EDUCATION, AND WELFARE

SOCIAL SECURITY ADMINISTRATION

BUREAU OF HEARINGS AND APPEALS

HEARING DECISION

Claim for

Period of Disability

and Disability Insurance

(Claimant)

Benefits

264-50-3342

(Wage Earner) (Leave

blank if same

as above)

Nm ee ee ee ee ee eee”

The Claim

This case arises out of an Application for Dis-

ability Insurance Benefits filed under sections

216(i) and 223 of the Social Security Act (Public

Law 271, 74th Cong., 49 Stat. 620, as amended)

on September 13, 1972 by Mr. Robert M. Wenzel,

the Claimant, which is regarded as claiming that

he has been unable to engage in any substantial

gainful activity since April 11, 1972 by reason of

a medically determinable circulatory impair-

ment in his left leg resulting from a battle injury

he sustained while serving in the Navy during

the Vietnam War. The claimant has represented

that he was born on March 11, 1937; that he left

school after the 10th grade but had been deter-

mined to have a “one year college equivalency”

in a test he had taken in the Navy; that he had

enlisted in the Navy in 1954, when he was 17,

taken a radarman’s course, risen to radarman

(Social Security Number)

App. 5

first class (the counterpart of a technical ser-

geant in the Army) and been assigned to the

master of arms in charge of two river patrol

boats, when he was wounded by an enemy

rocket in 1968; that he was medically discharged

from the Navy in August of 1971; that he had

worked as a security guard at a ski resort from

December of 1971 until the skiing season closed

in April of 1972; that after that, he had unsuc-

cessfully sought employment through the Cali-

fornia State Employment Service; that he had

then moved to Hawaii, where, after he had been

hospitalized for five days in August of 1972 for

evaluation of a complication resulting from one

of his wounds, he had gone on the labor pool

rolls of a temporary help enterprise until Octo-

ber of 1972, during which he put in a total of

about 80 hours driving new cars from the piers

to new car dealers’ showrooms and doing var-

ious warehouseman’s type jobs; that in late Jan-

uary of 1974, he began a nine weeks college

entry brush-up course for veterans at a college

under a federal program administered by the

State’s vocational rehabilitation agency which

pays him $210 to $215 monthly allowance for

living expenses; and that his intent was to go to

college to study journalism.

The Applicable Law

The following provisions of the Social Security

Act are of particular significance in this case:

The portion of section 223(a)(1) which provides

that an individual “who (A) is insured for dis-

ability insurance benefits (as determined under

subsection (c)(1)), (B) has not attained the age of

sixty-five, (C) has filed application for disability

App. 6

insurance benefits, and (D) is under a disability

(as defined in subsection (d))” shall be entitled

to disability insurance benefits.

The portions of sections 216(i)(1) and 223(d)(1)

which define “di ability” to mean “inability to

engage in any substantial gainful activity by

reasons of a medically determinable physical or

mental impairment which can be expected to

result in death or which has lasted or can be

expected to last for a continuous period of not

less than 12 months.”

The portion of section 223(d)(2) which reads:

“an individual shall be determined to be under

a disability only if his physical or mental

impairment or impairments are of such severity

that he is not only unable to do his previous

work but cannot, considering his age, education,

and work experience, engage in any other kind

of substantial gainful work which exists in the

national economy, regardless of whether such

work exists in the immediate area in which he

lives, or whether a specific job vacancy exists for

him, or whether he would be hired if he applied

for work. For purposes of the preceding sen-

tence (with respect to any individual), ‘work

which exists in the national economy’ means

work which exists in significant numbers either

in the region where such individual lives or in

several regions of the county.”

The portion of section 223(d)(3) which defines a

“physical or mental impairment” as “an impair-

ment that results from anatomical, physiologi-

cal, or psychological abnormalities which are

demonstrable by medically acceptable clinical

and laboratory diagnostic techniques.”

App. 7

Section 223(d)(5) which reads: “An individual

shall not be considered to be under a disability

unless he furnishes such medical and other evi-

dence of the existence thereof as the Secretary

may require.”

The portion of section 216(i)(2)(D) which pro-

vides that a period of disability “shall end with

the close of the second month following the

month in which the disability ceases” and the

portion of section 223(a)(1) which provides that

an individual who is under a disability shall be

entitled to disability insurance benefits “ending

with the month preceding the third month fol-

lowing the month in which his disability

ceases.”

The following provisions of Social Security

Administration Regulations Number 4 (20 C.F.R.

404) are also of special importance:

The portion of section 1501(c) which reads:

“Statements of the applicant, including his own

description of his impairment (symptoms) are,

alone, insufficient to establish the presence of a

physical or mental impairment.”

The portion of section 1523 which reads: “An

individual who has filed an application for the

establishment of a period of disability or for

disability insurance benefits shall submit medi-

cal evidence showing the nature and extent of

such individual’s impairment or impairments

during the time he alleges he was under a dis-

ability.”

The portion of section 1524 which reads: “Medi-

cal evidence of an individual’s mental or physi-

cal impairment shall include (a) A report signed

by a duly licensed physician; (b) A (certified)

App. 8

copy of, or abstract from, the medical records, if

any, of a hospital, clinic, institution, or san-

atorium, or public or private agency, . . . or (c)

Other medical evidence of probative value.

Medical reports, copies of medical records or

other medical evidence submitted to substanti-

ate an allegation that an individual is under a

disability shall include reports of clinical find-

ings (such as the individual’s medical history,

physical or mental status examinations or both),

laboratory findings, diagnosis, and treatment

prescribed and response; . . . The clinical and

laboratory findings shall be sufficiently compre-

hensive and detailed to permit the making of

independent determinations by the Administra-

tion or by a State agency as to the nature and

limiting effects of the individual’s physical or

mental impairment or impairments for the

period in question, his ability to engage in phys-

ical and mental activities, and the probable

duration of such impairment.”

The Issues

The record of this case contains nothing which

suggests that the Social Security Administration

questions or should question the presence of the

so-called “non-disability factors” - the insured

status, age and application-filing requirements -

for entitlement to the benefits sought by the

Application from the date on which the Claim-

ant allegedly became unable to work through

the date of this Decision.

The record indicates that the important points

that are to be regarded as being questioned in

this case are: (1) Whether the so-called “disabil-

ity factors” — the requirements of the medically

App. 9

determinable physical or mental impairment,

the inability to engage in any substantial gainful

activity, the causal connection between the

impairment and the inability to engage in any

substantial gainful activity, and either the rea-

sonable expectation that the impairment will

result in death or the actual or reasonably

expected 12 months minimum continued dura-

tion of the inability to work by reason of the

impairment - for entitlement to the benefits

sought have been met; (2) If they have been met,

when they were first met and whether they have

continued to be met through the date of this

Decision; and (3) If they have been met but have

not continued to be met through the date of this

Decision, when they ceased to be met.

The Hearing

Following initial and reconsidered denials of the

claim, the Claimant filed a timely request for a

hearing on it. The hearing officer conducted a

hearing in Honolulu, Hawaii on March 18, 1974.

The Claimant was present and testified. Various

documents marked as “exhibits” for identifica-

tion purposes were admitted into evidence. A

list of the exhibits has been prepared and a copy

of it will be sent to the Claimant along with a

copy of this Decision.

The Rationale

The hearing officer respects and admires and is

grateful to the Claimant for his service in our

country’s armed forces in time of war and the

battle wounds he sustained in such service, but

the hearing officer cannot allow this claim on

the evidence at hand.

App. 10

The evidence clearly showed that the Claimant

had sustained multiple shell fragment wounds

to the left side of his face, his left arm, his chest,

and his left leg with artery, vein and nerve

involvement in the Vietnam War in March of

1968. The documentary evidence established

that the had been allowed a period of disability

and monthly disability insurance benefits under

the Social Security Act through May of 1969,

after which they were terminated, on a prior

Application for Disability Insurance Benefits.

The Claimant testified that the ski resort secu-

rity job he had held from December of 1971 to

April of 1972 required him to be on his feet most

of the time, which aggravated the circulation in

his left leg; that he was hospitalized for an eval-

uation of that condition at the Army’s Tripler

General Hospital in Hawaii, where he had been

given a support stocking and told to keep his

leg elevated as much as possible, in August of

1972.

The Claimant further testified that while he had

been given a 60% disability rating on his dis-

charge from the Navy in 1971 and had thereafter

been awarded a 50% disability rating by the

Veterans Administration, he had applied for a

reevaluation of his rating by the Veterans

Administration, had been examined at its Hon-

olulu Clinic in November of 1972, had his dis-

ability rating increased to 70% and had been

allowed an additional 30% for “deemed unem-

ployability”, making for a 100% disability,

which began paying him $495 a month in vet-

eran’s disability benefits in April of 1973.

The Claimant also testified that in sitting

through the five hours a day, five days a week

App. 11

schooling he was undergoing, he would prop

his left leg up on another chair, extending it

parallel to the floor, to keep down the flash

cramps and pains in the leg and swelling in the

foot which would come on any time his leg was

below his torso - he was sitting, standing or

walking - continuously for as long as 12 to 16

hours. He explained that propping his leg 45 °

above a horizontal plane by leaning back in a

chair as he did in his apartment made for

greater comfort but was not practical in a class-

room. He claimed that the “disesthesia sensa-

tions” in the leg had increased recently and that

the dermatitis on the ankle, which was caused

by poor circulation resulting from loss of a part

of an artery and other blood vessels, had dou-

bled in size over the past two years and that

bloody fluids would collect in the ankle area,

discolor it and occasionally drain through an

opening in the skin. But he acknowledged that

aside from salves and powders for the der-

matitis, he was taking no medications and that

he was not seeing any doctors for the condition

on a regular basis; that he could drive; and that

he had made trips to California in October of

1972 and November of 1973 since coming to

Hawaii.

The Claimant said that he had “no affinity for

technical work” even though he had been a

radarman in the Navy; that civilian jobs similar

to that work were scarce; and that he had done

sedentary work as a public relations clerk on a

voluntary basis while he was awaiting his medi-

cal discharge from the Navy, but that he had

had to put his leg up on his desk for relief from

time to time. He stated that he did not think he

App. 12

could do a security guard’s job any more

because of his leg condition.

The only medical reports in evidence relating to

the Claimant's condition since April of 1972 con-

sisted of a Tripler Hospital narrative summary

on his August 1972 five day stay there and the

clinical record on his November 1972 Veterans

Administration 1972 evaluation.

The Tripler record mentioned that the Claimant

had been “admitted for impending venous ulcer

of the left lower extremity”. It listed the physical

findings relating to his left leg: “Extremities;

there are good pulses throughout; on the medial

aspect, just above the malleolus of the left lower

extremity, there is an area of hyper-pigmenta-

tion healing skin indicative of stasis dermatitis,

approximately 5 x 5 cm in diameter. There is

some superficial erosion. There is a trace of

pedal edema of the left side. There are extensive

superficial varicosities of both lower extremi-

ties.” It explained, “Plan will be to continue to

treat the area of stasis dermatitis locaily and

have the patient fitted with a Jobst stocking for

a therapeutic trial.” It noted that he was “to be

followed in Vascular Clinic”. A November 1972

request by the so-called State Agency which

assists the Social Security Administration in

evaluating its Hawaii disability cases to Tripler

for outpatient treatment records for the Claim-

ant was responded to by a note which read:

“Transit patient. Was not followed on OP basis.”

The Veterans Administration clinical record

mentioned that the Claimant had the following

deficiencies in his left lower extremity: flexion

limitation in his knee, tenderness on pressure on

the knee cap, some motion limitation in the

App. 13

ankle, an area of stasis dermatitis on the ankle

measuring 5" by 2", diminished pedal pulsation,

some quadriceps weakness, no elicitation of

ankle reflex, hypesthesia to pin prick from the

thigh to foot, a normal gait but some difficulty

toe to heel walking and inability to squat fully.

Although the evidence indicates that the Claim-

ant does experience some discomfort in his left

leg on being active, it also indicates that he is

much too able bodied and minded not to be up

and about like a normal person. He is 6'2" in

height and weighs the 190 to 200 pounds that he

weighed before he was wounded. His letters in

evidence were very well written and his testi-

mony was very well spoken and his letters and

testimony indicated he is very intelligent and

knowledgeable. He has easily had the residual

functional capacity to satisfactorily engage in a

wide variety of at least light and sedentary

work.

The hearing officer can fault no man who has

served in our country’s armed forces and been

wounded in battle for fully exploring the bene-

fits available to him because of his injuries. The

Claimant remains, however, too well equipped a

man to be held qualified for Social Security dis-

ability insurance benefits, that is to say, unable

for a period of not less than 12 months to

engage in any substantial gainful activity by

reason of the remaining effects of his wounds, at

any time since April of 1972.

The Claimant appears well-advised in his plans

to enter college to take journalism. He seems

certain for success, particularly in that field. But

if he can go to college, he can do a desk job.

Even though that would be a waste, it is a

App. 14

measure which indicates his non-disability for

Social Security purposes.

The Findings and Conclusions

The hearing officer, accordingly, makes the fol-

lowing findings of fact and conclusions of law:

1. The Claimant met the so-called non-disabil-

ity factors - the insured status, age and applica-

tion filing requirements - for entitlement to a

period of disability and monthly disability pay-

ments under sections 216(i) and 223 of the Social

Security Act on April 11, 1972, the date when

the Claimant allegedly became unable to engage

in any substantial gainful activity and which is

hereinafter referred to as “the alleged disability

onset date”, and has continued to meet them

through the date of this Decision.

2. The so-called disability factors for entitle-

ment to such disability insurance benefits which

the Claimant appears to have had the best possi-

bility of meeting involve an inability to engage

in any substantial gainful activity by reason of

medically determinable impairments for a con-

tinuous period of not less than 12 months or

being now so incapacitated with such inca-

pacitation reasonably expected to continue for

such a period.

3. The Claimant’s age, education and work

experience, at least for the purposes of this case,

are as represented by the Claimant and summa-

rized on the first page of this Decision.

4. Since the alleged disability onset date, the

Claimant has had the following significant med-

ically determinable impairments: shrapnel frag-

ments and artery and nerve involvement in his

App. 15

left leg and dermatitis with an occasional drain-

ing skin lesion on his left ankle as residuals of

battle wounds sustained while serving in the

Navy in the Vietnam War.

5. By reason of those impairments, the Claim-

ant has not been unable to engage satisfactorily

in any substantial gainful activity for what has

been a continuous period of not less than 12

months at any time since the alleged disability

onset date, nor is the Claimant now so incapaci-

tated with such incapacitation reasonably

expected to continue for what will eventually be

such a period.

6. The Claimant, consequently, has not been at

any time since the alleged disability onset date,

and is not now, under a disability, as that term is

defined in sections 216(i) and 223 of the Social

Security Act for purposes of obtaining a period

of disability and monthly disability insurance

benefits payments under the Act.

-O-

It is, therefore, the decision of the hearing offi-

cer that, on the basis of the application for Dis-

ability Insurance Benefits filed by or on behalf

of the Claimant on September 13, 1972, the

Claimant is not entitled to a period of disability

or to monthly disability insurance benefits pay-

ments under the Social Security Act.

Dated: May 21, 1974 /s/ William H. Yim

William H. Yim

Administrative Law Judge

Ri Siok aac. ea ae

App. 16

(Seal) DEPARTMENT OF HEALTH, EDUCATION,

AND WELFARE

SOCIAL SECURITY ADMINISTRATION

P.O. Box 2518, WASHINGTON, D.C. 20013

REFER TO: IHA-2 BUREAU OF

264-50-3342 HEARINGS AND APPEALS

2 OCT 1974

ACTION OF APPEALS COUNCIL ON

REQUEST FOR REVIEW

Mr. Robert M. Wenzel

Box 8089

Honolulu, Hawaii 96815

Dear Mr. Wenzel:

Your request for review of the administrative law judge’s

decision has been carefully considered by the Appeals

Council. The Council's consideration of your request has

included all the evidence in your case, the law and regu-

lations applicable to your claim, the evaluation of the

facts and the reasoning in this decision, and your reasons

for believing your claim should be allowed.

The Appeals Council has concluded that this decision is

correct. Further action by the Council would not, there-

fore, result in any change which would be of advantage

to you. Accordingly, the administrative law judge’s deci-

sion stands as the final decision of the Secretary in your

case.

If you desire a review of the decision by a court, you

may commence a civil action in the district court of the

United States in the judicial district in which you reside

within sixty (60) days from this date. See section 205(g) of

the Social Security Act, as amended (section 405(g), Title

App. 17

42, United States Code). If such action is commenced, the

Secretary of Health, Education, and Welfare is the proper

defendant.

Sincerely yours,

/s/ Carl Monk

Carl Monk

Member, Appeals Council

App. 18

Social Security Administration

Retirement, Survivors and Disability Insurance

Notice of Disapproved Claim

Office of Disability Operations

1500 Woodlawn Drive

Baltimore, Maryland 21241

Date: AUG. 14, 1988

Claim Number: 264-50-3342 HA

ROBERT M WENZEL

3989 CEDAREDGE CT

LAS VEGAS NV 89120

We have determined that you are not entitled to disability

benefits. The reason you are not entitled is that you do

not meet the earnings requirement of the law at the time

you state you became disabled or at any later date.

It is important for you to know that we have not made

any determinations as to whether or not you are disabled

within the meaning of the law. Since you do not meet the

earnings requirement, it has not been necessary to decide

whether you meet the disability requirement.

In addition you are not entitled to any other benefit based

on the application you filed.

If you believe this determination is not correct, you may

request that your case be reexamined. If you want this

reconsideration, you must request it not later than 60

days from the date you receive this notice. You may make

your request through any Social Security office. If addi-

tional evidence is available, you should submit it with

your request.

3

3

:

;

3

By

:

a

2

o App. 19

If you have any questions, you should call, write or visit

any Social Security office. If you visit an office, please

bring this letter. It will help us answer your questions.

/s/ Joseph R. Muffolett

Joseph R. Muffolett

Director

Office of Disability Operations

Enclosure:

SSA-10058

SSA-10072

—————————

App. 20

SOCIAL SECURITY ADMINISTRATION

Office of Disability and

International Operations

1500 Woodlawn Drive

Baltimore, Maryiand 21241

JUL 13 1992

Refer to: S2HA222

264-50-3342

Mr. Robert Wenzel

1162 Spanish Armada Road

Las Vegas, Nevada 89123

Dear Mr. Wenzel:

This is in response to your letter concerning Social Secu-

rity benefits that you have not received.

Our records show that you were allowed a closed period

of disability for the period of October 1968 through May

1969 and terminated June 1969.

Our records further show that you last met insured status

March 31, 1977. There is nothing to show that the infor-

mation in our letter to you dated August 14, 1988 has

changed the decision in that letter.

We apologize for the delay in responding to your letter.

Sincerely,

/s/ Joseph R. Muffolett

Joseph R. Muffolett

Director

App. 21

(Logo) SOCIAL SECURITY ADMINISTRATION

Refer to: TAHBK Office of Hearings and Appeals

264-50-3342 5107 Leesburg Pike

Falls Church, VA 22041-3255

MAR -6 1996

ORDER OF APPEALS COUNCIL DENYING

REQUEST FOR EXTENSION OF

TIME TO FILE CIVIL ACTION AND

REQUEST FOR REOPENING

Mr. Robert M. Wenzel

1162 Spanish Armada Road

Las Vegas, NV 89123

Dear Mr. Wenzel:

On October 2, 1974, the Appeals Council denied a request

for review of an Administrative Law Judge’s decision on

this case. The Council has now received a request for

reopening of the decision and, if reopening is declined, a

request for an extension of time in which to commence a

civil action.

In accordance with Social Security Administration Regu-

lations, a decision may be reopened within specified time

limits on the basis of new and material evidence or if the

evidence considered in making the decision clearly shows

on its face that an error was made (20 CFR 404.987-989).

The specified time limits for reopening a decision are four

years from the date of the initial determination. In this

case, the initial determination was made over 20 years

ago. Clearly, there is no regulatory basis to reopen and

revise the initial determination denying your application

App. 22

for a period of disability and disability insurance bene-

fits.

In accordance with Social Security Administration regula-

tions, the Appeals Council may, where good cause is

shown, extend the time in which to commence a civil

action (20 CFR 404.982-911).

From its review of this case, the Council notes that you

received the denial notice timely and you were aware of

the 60-day time limit for filing a civil action. Your conten-

tion that you did file a civil action because you believed

the Administrative Law Judge’s decision was correct and

you now are of the opinion the decision was incorrect

does not constitute good cause to extend the filing limit

for filing a civil action, in accordance with the above-

cited regulations. Moreover, contrary to your assertion,

the Administrative Law Judge’s consideration of your

ability to attend college is required by section 404.1529

which requires the consideration of daily activities in

assessing the credibility of an individual’s subjective

complaints.

After carefully considering the circumstances in this case,

the Appeals Council is not persuaded that good cause for

an extension of the time in which to commence a civil

action has been shown. The request is, therefore, denied.

Sincerely yours,

/s/ Peter A. Greenlee

Peter A. Greenlee

Administrative Appeals Judge

J

App. 23

(Logo) SOCIAL SECURITY ADMINISTRATION

Refer to: TAHBK Office of Hearings and Appeals

264-50-3342 5107 Leesburg Pike

Falls Church, VA 22041-3255

APR 15 1996

Mr. Robert M. Wenzel

1162 Spanish Armada Road

Las Vegas, NV 89123

Dear Mr. Wenzel:

On March 6, 1996, the Appeals Council denied a request

fer an extension of time to file a civil action and a request

for reopening. The Council has now received your letter

dated March 18, 1996.

The Appeals Council considered the contentions raised in

your letter but concluded that these contentions do not

provide a basis for vacating its previous action in this

case.

The Council has decided there is no basis to grant the

request for an extension of time to file a civil action nor is

there any basis for reopening the hearing decision dated

May 21, 1974. Accordingly, that decision stands as the

final decision of the Commissioner on the application

dated September 13, 1972.

Sincerely yours,

/s/ Peter A. Greenlee

Peter A. Greenlee

Administrative Appeals Judge

Si

App. 24

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

ROBERT M. WENZEL, CV-S-96-01063-HDM

Plaintiff, (LRL)

VS. ORDER

SHIRLEY S. CHATER,

Commissioner of Social Security (Filed Feb. 10, 1996)

Defendant.

/

Plaintiff filed a motion for entry of default against

the defendant (#3) for failure to timely answer the com-

plaint. While there is evidence in the record that plaintiff

served the United States attorney for the District of Ne-

vada by registered mail, the service was improper pur-

suant to F.R.C.P. 4(i)(1)(A). Authorized mail service must

be specifically addressed to the civil process clerk of the

office of the United States attorney. Accordingly, plain-

tiff’s motion is denied. Plaintiff is granted leave to effect

proper service.

It is so ORDERED.

Dated this 10th day of February, 1996.

/s/ Howard D. McKibben

UNITED STATES

DISTRICT JUDGE

App. 25

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

ROBERT M. WENZEL, CV-S-96-

SSN 264-50-3342, 1063-HDM(LRL)

Plaintiff, ORDER

VS.

JOHN J. CALLAHAN,

Commissioner

of Social Security,

(Filed Apr. 21, 1997)

Defendants.

The motion of the United States to remand (#6) is

granted pursuant to 42 U.S.C. § 205(9).

It is so ORDERED.

Dated this 17th day of April, 1997. ©

/s/ Howard D. McKibben

UNITED STATES

DISTRICT JUDGE

a

App. 26

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

ROBERT WENZEL, CV-S-96-1063-

SSN: 264-50-3342, HDM(LRL)

Plaintiff, ORDER

VS.

Acting Commissioner of Social

Security Administration,

Defendant.

/

The court’s order of April 24, 1997 remanding this

action (#9) is vacated upon petition of the defendant. The

defendant has filed a motion to dismiss (#11). The plain-

tiff shall have until November 20, 1997 to file a response

to the motion.

It is so ORDERED.

Dated this 29th day of October, 1997.

— s/ Howard D. McKibben

UNITED STATES

DISTRICT JUDGE

App. 27

United States District Court

- DISTRICT OF NEVADA

ROBERT M. WENZEL, JUDGMENT IN A

Plaintiff, CIVIL CASE

V. (Filed Feb. 24, 1998)

SHIRLEY S. CHATER,

CASE NUMBER: CV-

Defendant. S-96-1063-HDM(LRL)

Jury Verdict. This action came before the Court for a

trial by jury. The issues have been tried and the jury

has rendered its verdict.

XX Decision by Court. This action came to /be consid-

ered by the Court. The issues have been /considered

and a decision has been rendered.

[T IS ORDERED AND ADJUDGED that defendant's

motion to dismiss is granted; SO THEREFORE, judg-

ment is entered in favor of defendant and against

the plaintiff.

February 24, 1998 LANCE S. WILSON

Date Clerk

/s/ Ullegible

(By) Deputy Clerk

App. 28

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

ROBERT M. WENZEL, CV-S-96-01063-

aaa HDM (LRL)

Plaintiff,

VS. ORDER

KENNETH S. APFEL,

Commissioner of Social Security, (Filed Feb. 12, 1998)

Defendant.

/

This is an action pursuant to 42 U.S.C. sec. 405 (g)

and 42 U.S.C. sec. 1383 (c) for judicial review of the denial

of the plaintiff’s claim for benefits under Title II of the

Social Security Act. This matter is before the court on

defendant’s motion to dismiss for failure to exhaust

administrative remedies (#10).

Administrative Proceedings

In October of 1968, the plaintiff, Robert M. Wenzel,

filed an application for disability insurance benefits. The

Social Security Administration found that he was under a

disability for the period October 1968 through May 1969.

Wenzel subsequently filed another application for disabil-

ity insurance benefits on September 13, 1972, which was

denied. The plaintiff filed a Request for Reconsideration

and, upon reconsideration, the claim was denied. After

timely filing a Request for Hearing, an evidentiary hear-

ing was held before Administrative Law Judge William

H. Yim. Judge Yim issued a decision on May 21, 1974,

finding that the plaintiff was not under a disability. On

October 2, 1974, the Appeals Council denied a Request

App. 29

for Review, which constitutes the administration’s final

decision.

Wenzel filed a third application for disability insur-

ance benefits in August 1988, alleging onset of disability

commencing in March 1980. On August 14, 1988, the

administration notified Wenzel that his application was

denied because he did not meet the earnings requirement

under the Social Security Act. The notice advised Wenzel

of his right to request reconsideration of the determina-

tion within 60 days of receipt of the notice. Wenzel failed

to file a Request for Reconsideration. On June 27, 1988,

the administration notified Wenzel that he was ineligible

for supplemental security income benefits.

Wenzel wrote to the Social Security Administration

regarding the status of his social security benefits. The

administration responded and advised Wenzel that he

last met the insured status requirements of the Act on

March 31, 1977, and that there was no basis for changing

the previous determinations denying plaintiff’s claim for

disability insurance benefits.

Wenzel again wrote to the administration concerning

his eligibility to receive disability insurance benefits. The

administration again advised the plaintiff that there was

no basis for reopening the prior determinations made in

his case, and that his right to file a court action had

passed. On January 4, 1993, Wenzel inquired about his

claim and the conditions under which a decision may be

re-opened. On April 1, 1993, the administration wrote to

Wenzel and provided a narrative history of his case, an

explanation of the calculation of his last date insured, and

App. 30

the three regulatory bases for re-opening a prior deter-

mination.

On September 30, 1995, Wenzel petitioned to re-open

the administration’s previous decisions or, in the alterna-

tive, an extension of time in which to file a civil action.

On March 6, 1996, the Appeals Council issued an order

denying the plaintiff's requests. Unsatisfied, the plaintiff

again requested a re-opening and an extension of time.

On April 15, 1996, the Appeals Council affirmed its deci-

sion to deny the requests. On November 15, 1996, the

plaintiff commenced this action.

Discussion

Judicial review of actions arising under Title II of the

Social Security Act is expressly limited to the provisions

of 205(g) of the Act. 42 U.S.C. sec. 405(g) and (h). Section

205(g) reads, in pertinent part,:

Any individual, after any final decision of the

Commissioner of Social Security 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 Commissioner of Social Security may

allow. :

The Social Security Administration sets forth the

administrative procedures under the Act by which a

claimant may obtain a “final decision” of the Commis-

sioner. Following an initial determination on a claim, a

dissatisfied claimant may file a Request for Reconsidera-

tion. 20 C.F.R. secs. 404.907-909. After reconsideration, the

App. 31

claimant may then request a hearing before an Adminis-

trative Law Judge. 20 C.F.R. secs. 404.929-33.

The Administrative law Judge may grant or dismiss a

request for a hearing. 20 C.F.R. 404.957. A dismissal is

final and binding, unless vacated by the Appeals Council

of the Social Security Administration, either on its own

motion or upon request by the claimant, within 60 days

after the order of dismissal is issued. 20 C.F.R. sec.

404.959. If a hearing is granted, the claimant may request

that the Appeals Council review the decision of the

Administrative Law Judge. The request for review must

be made in writing within 60 days from the date of

receipt of notice of the decision. 20 C.F.R. sec. 404.968(a).

Upon written request, the Appeals Council may extend

this time for good cause. 20 C.F.R. sec. 404.968(b).

Thus, there are two applicable situations which

would constitute a final and binding decision by the

administration in this case: (1) if thé Appeals Council

declines review of a decision made after a hearing; or (2)

if the Appeals Council grants a request for review and

renders a decision thereon. 20 C.F.R. sec. 404.955. Only

after a request is made to the Appeals Council to review

the decision of the Administrative Law Judge and such

request has been acted upon, can there be a “final deci-

sion” of the Commissioner subject to judicial review

within the meaning of section 205(g) of the Act. 20 C.F.R.

sec. 404.981.

Here, the plaintiff submitted three applications for

disability insurance benefits. The plaintiff does not take

issue with the administration’s decision on his first appli-

cation. On the second application, Judge Yim found that

Se ee

App. 32

the plaintiff was not under a disability. On October 2,

1974, the Appeals Council denied a Request for Review,

which then became the administratior’s final decision.

The plaintiff had 60 days from the date he received notice

of the decision to seek judicial review. Because the plain-

tiff failed to file a complaint within the specified time

period, he is barred from seeking judicial review of that

decision.

On Wenzel’s third and final application, the adminis-

tration made the initial determination that he did not

meet the earnings requirement under the Social Security

Act. Although the plaintiff was advised of the right to file

a Request for Reconsideration at the time the administra-

tion denied his application, he failed to do so. Thus, there

is no “final decision” of the Commissioner. Because the

plaintiff failed to exhaust his administrative remedies,

this court is without jurisdiction to review the adminis-

tration’s decision. Hoye v. Sullivan, 985 F.2d 990, 991 (9th

Cir. 1992).

The plaintiff also seeks judicial review of his petition |

to re-open his case or, in the alternative, an extension of

time within which to file a court action. In an order, dated

March 6, 1996, the Appeals Council denied both of plain- °

tiff’s requests. The plaintiff cannot seek judicial review of

this decision. In Califano v. Sanders, the Supreme Court

held “an interpretation that would allow a claimant judi-

cial review simply by filing - and being denied - a

petition to re-open his claim would frustrate the congres-

sional purpose, plainly evidenced in section 205(g), to

impose a 60-day limitation upon judicial review of the

Secretary's final decision denying the initial claim for

benefits.” 430 U.S. 899, 108.

App. 33

Accordingly, the defendant’s motion to dismiss is

granted.

It is so ORDERED.

Dated this 6th day of February, 1998.

/s/ Howard D. McKibben

UNITED STATES

DISTRICT JUDGE

ye ee ta eta

te he Daa

App. 34

DATE FILED: 11/15/96 N/S: 863 DISTRICT:

0978 ILLEGIBLE

DATE ILLEGIBLE: / / J: 2 ORD: 1

PD: 7 DD: 7 R23: 4 DMND: ILLEGIBLE

I. CAUSE

42 405 (G) - AN ABUSE OF DISCRETION BY THE

DEFENDANT

NOT EXEMPT FROM FRCP 16(b)

FILING FEES PAID - RECEIPT 14496

Il. UPPER ATTORNEY

WENZEL, ROBERT M. Plaintiff

ROBERT M WENZEL - PRO SE

1162 Spanish Armada Road

Las Vegas, NV 89123

(702) 896-2431

Ill. LOWER ATTORNEY

CHATER, SHIRLEY S Defendant

KATHRYN E. LANDRETH

CARLOS A. GONZALEZ

United States Attorney

District of Nevada

Assistant United States A

702 East Bridger, 8th Floor

Las Vegas, NV 89101

(702) 388-6336

DATE NR

11-15-96 1

1/15/97 2

1/24/97 3

2/10/97 4

2/24/97 5

3/6/97 6

3/14/97 7

3/25/97 8

Illegible

4/21/97 9

4/24/97 -

09/17/97 10

- 11

eee

App. 35

PROCEEDINGS

COMPLAINT. fj

SUMMONS issd P(1). (AT) fj

Filing fees paid. fj

JS-5 (AT) ff

STATEMENT of the entry of default as to

obo P. jr

STIPULATION/ORDER(LRL) ORD that D

has to 3/24/97 to fl an answr or resp

pldng. (AT) Cps dist. jr

ORDER (HDM) ORD that Ps mtn (#2) is

denied. P is granted lv to effect propr srvc.

(AT) Cps dist. jr

SERVICE obo P- re U.S. Atty-LV,NV serv

serv 2/19/97. efm

MOTION for remand obo D. (m) (AT) jr

(DISPO: resp #7 granted Illegible

RESPONSE to Mtn for remand obo P. (nss)

(AT) jr

AFFIDAVIT of service re #7 obo P. jr

ORDER (HDM) ORD that the mtn of US

to remand (#6) is granted purs to U.S.C.

§ 205 (9). (AT) Cps dist. jr (EOD 4/24/97)

JS-6. (AT) jr

MOTION to dism obo D. (m) (AT) 1g resp

#16B

MOTION to vacat Ord #9 & reopn civil

actn obo D. (m) (AT) 1g

App. 36

10/23/97 - sub to mdm #I1C illegible

11/4/97 12 ORDER(HDM) ORD that the crts ord of

4/24/97 remanding this actn (#9) is

vacated upon petn of the D. The D has fld

a mtn to dism (#11). The P shall have to

11/20/97 to fl a resp to the mtn. (AT) Cps

dist. jr

tA#}4rt{DISPO: Stricken per #15

- +4 RESPONSE+e-Ds-mtn-te-dism+16}- obe-P

(r33}-+At-r Stricken per #15

2/8/97, 15 ORDER STRIKING FILE DDOCUMENT

[sic] #13 & #14(LRL) ORD that the clk

shall strike the ref doc’s #13 & #14 frm the

rec, notify cnsl of same & retain doc’s in

the official file. (AT) Cps dist. jr

?/14/97 16 AFFIDAVIT/SERVICE re Ps respnse of

11/14/97 & mtn of 11/14/ mid w/green

receipts obo P. efm

7/2/97 17 RECEIPT (yellow) serv on A.G., Wash.

DOC 11/19/97 (no explanation as to what

was served. efim

7/1/97, 18 ORDER(LRL) ORD that this crt’s ord

(#15) striking Ps flngs #13 & #14 because

they were mot accompanied by proof of

service is hereby rescinded. Ps mtn (#14) &

resp #14 shall be deemed fld as of

11/24/97. (AT) Cps dsit. jr

OF DATE ORDER***

?/24/97 16A MOTION to render a decsn obo P. (m)

(AT) jr (DISPO:

16B RESPONSE to Ds mtn to dism (#10) obo P.

(m) (AT) jr

?/8-97

?/0-97

?/0/97

2/2/98

2/4/98

2/2/98

?/?/98

ti es ROE ota ae adaaa aden

19

24

App. 37

RECEIPT (yellow) serv on Appeals Coun-

cil, Falls Church, VA 11-17-97 (no explana-

tion as to what was served. fj

JS-5 (AT) fj

Illegible

ORDER(HDM) ORD that Ds mtn to dism

(#10) is granted. (AT) Cps dist. jr (EOD

2/24/98)

IUDGMENT(LSW/jr) ORDER AND

ADJUDGED THAT os mtn to dism is

granted and judgmnt is entered in favor of

D. (AT) Cps dist. jr (EOD 2/24/98)

JS__6. (AT) jr

NOTICE/APPEAL re #20 obo P. (AT) jr

FEES PAID - RECEIPT #23898. jr

LETTER(COPY) to Clk of C/A frm D/C

Clk re notc/appeal. Orig to C/A w/cpy

dkt sht, & cpy dkt sht, to cnsl. (AT) jr

DOCKET FEE PAYMENT NOTIFICA-

TION FOR(COPY) C/A & D/C/ fees pd.

Orig to C/A. jr

CERTIFICATE OF RECORD (COPY) Rec

complete for appeal. Orig to C/A. Cps

dist. jr

LETTER(COPY) to Clk C/A frm Clk D/C

re cert/rec & rec reten. Orig to C/A cpys

to cv cnsl w/cpy dkt sht, desig form. (AT)

jr

DOCKET SHEET(CC) Clks rec retained by

D/C. jr

App. 38°

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT M.

WENZEL,

Plaintiff-Appellant,

V.

KENNETH S.

APFEL, Commissioner

of the Social

Security Administration,

Defendant-Appellee

'

|

|

|

No. 98-15857

D.C. No.

CV-96-01063-HDM

MEMORANDUM*

(Filed Oct. 26, 1998)

Appeal from the United States District Court

for the District of Nevada

Howard D. McKibben, District Judge, Presiding

Submitted October 20, 1998**

Before: T.G. NELSON, KLEINFELD, and HAWKINS,

Circuit Judges.

Robert M. Wenzel appeals pro se the district court's

dismissal for lack of subject-matter jurisdiction of his

appeal from the Commissioner’s denial of Wenzel’s Sep-

tember 1972 application for disability benefits and his

motion to reopen his disability application for that year.

*This disposition is not appropriate for publication and may not

be cited to or by the courts of this circuit except as may be

provided by 9th Cir. R. 36-3.

**The panel unanimously finds this case suitable for decision

without oral argument. See Fed. R. App. P. 34(a); 9th Cir. R. 34-4.

|

ennai

App. 39

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review de novo, see Evans v. Chater, 110 F.3d 1480, 1481

(9th Cir. 1997), and we affirm.

Because Wenzel’s attempt to seek judicial review of

the Commissioner’s denial of his September 1972 applica-

tion for disability benefits was untimely, the district court

properly concluded that it lacked subject-matter jurisdic-

tion over this claim. See 42 U.S.C. § 405(g).

Because the Commissioner’s denial of Wenzel’s

motion to reopen his 1972 application for benefits was not

a final reviewable order under § 405(), the district court

| also correctly dismissed this claim. See Evans, 110 F.3d at

| 1482. Moreover, Wenzel failed to raise a colorable consti-

tutional claim to enable the district court to review the

denial of his motion to reopen. See Hoye v. Sullivan, 985

F.2d 990, 991-92 (9th Cir. 1993) (per curiam); cf. Evans, 110

F.3d at 1482-84 (concluding that appellant’s due process

claim, which asserted that he had been denied a meaning-

| ful opportunity to be heard, conferred jurisdiction upon

the district court to address this claim).

AFFIRMED.'

' To the extent that Wenzel contends that the district court

erred by dismissing his appeal from the Commissioner's denial

of his August 1988 application for disability benefits, we reject

this contention because Wenzel failed to exhaust his

administrative remedies with respect to this claim. See Hoye, 985

F.2d at 991.

App. 40

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT M ) No. 98-15857

WENZEL, ) DC#

Plaintiff-Appellant, CV-96-01063-HDM

7 District of Nevada

| (Las Vegas)

KENNETH S. ) aaa

APFEL, Commissioner, )

) tiled Fe 99

Defendant-Appellee. ) (Filed Feb. 8, 1999)

ES a Oe

Before: T.G. NELSON, KLEINFELD, and HAWKINS,

Circuit Judges.

rhe panel has voted to deny appellant's petition for

rehearing and to reject the suggestion for rehearing en

banc

The full court has been advised of the suggestion for

rehearing en banc, and no judge has requested a vote on

whether to rehear the matter en banc. See Fed. R. App. P.

35.

Che petition for rehearing is denied, and the sugges-

tion for rehearing en banc is rejected. No further filings

will be accepted in this closed appeal.

App. 41

The Constitution of the United States

Amendment 5

No person shall be held to answer for a capital, or other-

wise infamous crime, unless on a presentment or indict-

ment of a Grand Jury, except in cases arising in the land

or naval forces, or in the Militia, when in actual service in

time of War or public danger; nor shall any person be

subject for the same offence to be twice put in jeopardy of

life or limb; nor shall be compelled in any criminal case to

be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor shall

private property be taken for public use, without just

compensation.

App. 42

42 United States Code

Section 405(g)

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. Such

action shall be brought in the district court of the United

States for the judicial district in which the plaintiff

resides, or has his principal place of business, or, if he

does not reside or have his principal place of business

within any such judicial district in the United States

District Court for the District of Columbia. As part of his

answer the Secretary shall file a certified copy of the

transcript of the record imcluding the evidence upon

which the findings and decision complained of are based.

The court shall have power to enter, upon the pleadings

and transcript of the record, a judgment affirming, mod-

ifying, or reversing the decision of the Secretary, with or

without remanding the cause for a rehearing. The find-

ings of the Secretary as to any fact, if supported by

substantial evidence, shall be conclusive, and where a

claim has been denied by the Secretary or a decision is

rendered under subsection (b) of this section which is

adverse to an individual who was a party to the hearing

before the Secretary, because of failure of the claimant or

such individual to submit proof in conformity with any

regulation prescribed under subsection (a) of this section,

the court shall review only the question of conformity

with such regulations and the validity of such regula-

tions. The court may, on motion of the Secretary made for

App. 43

good cause shown before he files his answer, remand the

case to the Secretary for further action by the Secretary,

and it may at any time order additional evidence to be

taken before the Secretary, but only upon a showing that

there is new evidence which is material and that there is

good cause for the failure to incorporate such evidence

into the record in a prior proceeding; and the Secretary

shall, after the case is remanded, and after hearing such

additional evidence if so ordered, modify or affirm his

findings of fact or his decision, or both, and shall file with

the court any such additional and modified findings of

fact and decision, and a transcript of the additional

record and testimony upon which his action in modifying

or affirming was based. Such additional or modified find-

ings of fact and decision shall be reviewable only to the

extent provided for review of the original findings of fact

and decision. The judgment of the court shall be final

except that it shall be subject to review in the same

manner as a judgment in other civil actions. Any action

instituted in accordance with this subsection shall survive

notwithstanding any change in the person occupying the

office of Secretary or any vacancy in such office.

IN THE SUPREME COURT OF THE UNITED STATES

ROBERT MARSHALL WENZEL, Petitioner,

v.

Commissioner of Social Security

KENNETH STEVEN APFEL, Respondent

APPENDIX B

Defendant Exhibit 5 of Appendix B was submitted

with Motion to dismiss of September 17, 1997 in:

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

ROBERT M. WENZEL, Plaintiff,

v

JOHN J. CALLAHAN, Acting Commissioner

of Social Security, Defendant.

No. CV-S-96-01063-HDM(LRL)

ri

App. 45

APPENDIX B INDEX

Stipulation for Extension of Time to Answer ...App. 46

eee TOF GUID oo cov vsccnccescscccesetssens App. 48

Motion to dismiss (incorporating Points and

Authorities Statement of Facts, and Declaration

Se te ED eed cuviecscouuceass ee Oe

Reconstruction of Disability Report (Def. Ex. 5)... App. 70

Construction of Supplemental Security Income

ESE R AE IE EE EEE ee App. 83

Motion to vacate .......... ag Wah eaee App. 85

eal te ee er Leen de App. 87

App. 46

KATHRYN E. LANDRETH

United States Attorney

District of Nevada -

CARLOS A. GONZALEZ

Assistant United States Attorney

702 East Bridger, 8th Floor

Las Vegas, Nevada 89101

Telephone: (702) 388-6336

Attorneys for Federal Defendant

Shirley S. Chater

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

CHATER, Commissioner

of Social Security, (Filed Jan. 24, 1997)

Defendant.

-o00-

ROBERT M. ) CV-S-96-01063-

WENZEL, ) HDM-(LRL)

SSN 264-50-3342 STIPULATION FOR

Plaintiff, ) EXTENSION OF

; ) TIME TO

) ANSWER

SHIRLEY S. (First Request)

)

)

)

)

IT IS HEREBY STIPULATED, by and between the

parties, Robert M. Wenzel, in proper person, and Carlos

A. Gonzalez, Assistant United States Attorney, counsel

for Defendant Shirley S. Chater, Commissioner of Social

Security, that the Defendant, Shirley S. Chater, Commis-

sioner of Social Security, shall have an additional sixty

days (60), to and including March 24, 1997, to file an

Answer or responsive pleading herein.

i eee le

_—

App. 47

This extension of time is sought due to a delay in the

preparation of the Administrative Records and suggested

Answer to the Complaint from the Social Security

Administration, Answer Staff, Falls Church, Virginia. At

the present time, Defendant’s deadline to answer or oth-

erwise plead to Plaintiff's Complaint is Tuesday, January

21, 1997.

This is the first request for an extension of time to file

an answer or responsive pleading herein.

DATED this 16th day of January, 1997.

KATHRYN E. LANDRETH

United States Attorney

/s/ Robert M. Wenzel

ROBERT M. WENZEL

In Pro Per

/s/ Carlos A. Gonzalez

CARLOS A. GONZALEZ

Assistant U.S. Attorney

Counsel for Defendant

IT IS SO ORDERED.

-/s/ Megible

UNITED STATES

MAGISTRATE JUDGE

DATED: 1/24/97

aa Re Ce RE RE eS ET NU Eo. a

App. 48

KATHRYN E. LANDRETH

United States Attorney

District of Nevada

“CARLOS A. GONZALEZ

Assistant United States Attorney

702 East Bridger, 8th Floor

Las Vegas, Nevada 89101

Telephone: (702) 388-6336

Attorneys for Defendant

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

-o00-

ROBERT M. WENZEL,

SSN: 264-50-3342

Plaintiff,

CV-S-96-01063-HDM-(LRL)

)

) MOTION FOR

} REMAND

¥. )

JOHN J. CALLAHAN,! |)

Commissioner of Social )

Security,

)

)

Defendant.

COMES NOW the United States of America, by and

through its attorneys, Kathryn E. Landreth, United States

' President Clinton appointed John J. Callahan to serve as |

Acting Commission [sic] of Social Security, effective March 1, |

1997, to succeed Shirley S. Chater. Pursuant to Rule 25(d)(1) of

the Federal Rules of Civil Procedure, John J. Callahan should be

substituted, therefore, for Shirley S. Chater, as the defendant in

this suit. No further action need to be taken to continue this suit

by reason of the last sentence of § 205(g) of the Social Security

Act. 42 U.S.C. § 405(g).

App. 49

Attorney for the District of Nevada, and Carlos A.

Gonzales, Assistant United States Attorney, and repre-

senting John J. Callahan, Commissioner of Social Security,

moves this Honorable Court for an order for remand.

This Motion is based on the letter received by this

office from the Office of the General Counsel, Social

Security, on Thursday, March 6, 1997, attached hereto and

incorporated herein as Exhibit 1.

| DATED this 6th day of March, 1997.

Respectfully submitted,

: KATHRYN E. LANDRETH

United States Attorney

/s/ Carlos A. Gonzalez

CARLOS A. GONZALEZ

Assistant United States Attorney

App. 50

[SEAL]

SOCIAL SECURITY

Office of the General Counsel

March 6, 1997

Answer Staff

5107 Leesburg Pike

Room 1704 Skyline Tower

Falls Church, VA 22041-3255.

(703) 305-0551

(703) 305-1271 (FAX)

Honorable Kathryn E. Landreth

United States Attorney

Post Office Box 16030

Las Vegas, Nevada 89101

Re: Robert Wenzel v. Callahan!

(NV, Civil CV-S-96-01063-

HDM(LRL))

(SSN: 264-50-3342)

(GC:SS:K. Vazquez)

Dear Ms. Landreth:

The Appeals Council wishes to take further administra-

tive action in this case. Therefore, we request that you file

a motion to remand this case to the defendant for further

administrative action pursuant to sentence 6 of section

' President Clinton appointed John J. Callahan to serve as

Acting Commissioner of Social Security, effective March 1, 1997,

to succeed Shirley S. Chater. Pursuant to Rule 25(d)(1) of the

Federal Rules of Civil Procedure, John J. Callahan should be

substituted, therefore, for Shirley S. Chater, as the defendant in

this suit. No further action need be taken to continue this suit by

reason of the last sentence of section 205(g) of the Social Security

Act, 42 U.S.C. § 405(g).

App. 51

205(g) of the Social Security Act, 42 U.S.C. 405(g) which

provides that:

“*** The court may, on motion of the commis-

sioner made for good cause shown before he

files his answer, remand the case to the Commis-

sioner for further action by the Commis-

sioner ** * ”

See Melkonyan v. Sullivan, 501 U.S. 89, 101 n.2 (1991);

Shalala v. Schafer, 113 S.Ct. 2625, 2629 n.2 (1993).

The joint conference committee of Congress in reporting

upon the Social Security Disability Amendments of 1980

(to the Social Security Act) stated that in some cases

procedural difficulties, such as an inaudible hearing tape

or a lost file, necessitate a request for remand by the

Commissioner. The intent of the committee was that such

procedural defects be considered “good cause” for

remand. The committee states:

“* * * Such a situation is an example of what

could be considered ‘good cause’ for remand.

Where, for example, the tape recording of the

claimant’s oral hearing is lost or inaudible, or

cannot otherwise be transcribed, or where the

claimant's files cannot be located or are incom-

plete, good cause would exist to remand the

claim to the Commissioner for appropriate

action to produce a record * * * ” (H.R. Rep. No.

96-944, 96th Cong., 2d Sess. 59 (1980)).

We have now been informed by the Office of Hearings

and Appeals that the Appeals Council seeks voluntary

remand to locate the missing claim file. If unable to locate

App. 52

within a reasonable amount of time, procedures to recon-

struct the missing file will be initiated. Therefore, good

cause exists to support this request for remand.

The Answer Section of the Office of General Counsel,

located in Falls Church, Virginia is responsible for follow-

ing up to be sure that a remand order is entered by the

Court or that comments are provided to your office if a

plaintiff files objections to the motion to dismiss. There-

fore, please be sure to promptly forward a copy of any order or

pleading filed with regard to this motion to remand (preferably

by fax) to the Answer Section in Falls Church, Virginia.

Sincerely yours,

By /s/ Peter S. Krynski /kev

Peter S. Krynski

Supervisory Attorney

cc: Region IX

GS:SS:K. Vazquez

App. 53

KATHRYN E. LANDRETH

United States Attorney

District of Nevada

CARLOS A. GONZALEZ

Assistant United States Attorney

701 East Bridger, 8th Floor

Las Vegas, Nevada 89101

Telephone: (702) 388-6336

Attorneys for Defendant

Social Security Administration

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

Security Administration,

Defendant.

-oO00-

ROBERT WENZEL, ) CV-S-96-01063-

SSN: 264-50-3342 ) | DWH-(LRL)

—o ) DEFENDANT'S

= ) MOTION TO

JOHN J. CALLAHAN, Acting ) DISMISS

Commissioner of Social ) PLAINTIFF'S

) COMPLAINT

)

)

)

COMES NOW, Defendant, John J. Callahan, Acting

Commissioner of Social Security Administration, by and

through his attorneys, Kathryn E. Landreth, United States

Attorney for the District of Nevada, and Carlos A.

Gonzalez, Assistant United States Attorney, and files

Defendant’s Motion to Dismiss Plaintiff's Complaint.

App. 54

This Motion is based on the Points and Authorities

attached hereto and incorporated herein.

DATED this 17th day of September, 1997.

Respectfully submitted,

KATHRYN E. LANDRETH

United States Attorney

/s/ Carlos A. Gonzalez

CARLOS A. GONZALEZ

Assistant U.S. Attorney

App. 55

* * *

POINTS AND AUTHORITIES

Statement of Facts

This is an action brought by Plaintiff for judicial

review of the denial of his claim for benefits under Title II

of the Social Security Act (hereinafter referred to as the

Act). The Plaintiff has failed to exhaust his administrative

remedies with respect to his claim for benefits and, there-

fore, there has been no “final decision” of the Commis-

sioner as contemplated by Section 205(g) of the Act, 42

U.S.C. § 405(g). Thus, this Court is without jurisdiction

over the subject matter of the action.

The declaration of the office of Hearings and

Appeals, Social Security Administration, attached hereto,

sets forth the procedural history in this matter.

The Social Security Administration Instructions Man-

ual System sets forth the current policy regarding the

storage and destruction of inactive claim folders. The

current instructions regarding the storage and destruc-

tion of inactive disability claim files are contained in

§ DIB-01.01.00 (Exhibit 1 of Declaration).

Requests for Records Disposition Authority,

approved on February 3, 1988, revised the retention

period to five years after the event date the inactive claim

was denied (disallowed) or terminated. Any inactive

claim file which, having already served the requisite five-

year retention period, has been destroyed (Exhibit 2 of

Declaration.

The Plaintiff filed an application for disability insur-

ance benefits in October 1968, and was found under a

App. 56

disability for the period October 1968 through May 1969

{Exhibit 10 of Declaration).

Plaintiff filed an application for disability insurance

benefits on September 13, 1972. This claim was denied

initially and upon reconsideration. On May 21, 1974, an

Administrative Law Judge issued a decision finding that

the Plaintiff is not under a disability (Exhibit 3 of Declara-

tion (pages 7ff are unavailable)). On October 2, 1974, the

Appeals Council denied Plaintiff's request for review of

that decision. Although advised of the right to commence

a civil action within 60 days of receipt of the notice, such

action was not commenced (Exhibit 4 of Declaration).

On August 2, 1988, Plaintiff filed his third application

for disability insurance benefits, alleging onset of disabil-

ity commencing March 12, 1980 (Exhibit 5 of Declaration).

This application was denied by notice dated August 14,

1988. Although advised of the right to request recon-

sideration of the determination within 60 days of receipt

of the notice, such request was not made. Plaintiff was

also advised by notice dated June 27, 1988, that he is

ineligible for supplemental security income benefits

(Exhibit 6 of Declaration).

Plaintiff sent the Social Security Administration a

letter concerning Social Security benefits. By letter dated

July 13, 1992, Plaintiff was advised that he last met the

insured status requirements of the Act on March 31, 1977,

and there is no basis for changing the determination

dated August 14, 1988, denying Plaintiff’s claim for dis-

ability insurance benefits (Exhibit 7 of Declaration). On

August 27, 1992, after a complete investigation of Plain-

tiff’s earnings record, it was affirmed that insured status

One *

App. 57

was last met on March 31, 1977. Plaintiff's prior period of

disability, and his earnings for 1978, 1979, and 1980 did

not extend the date last insured (Exhibit 8 of Declaration).

Plaintiff submitted a letter concerning his eligibility

to receive disability insurance benefits. In a letter dated

September 4, 1992, Plaintiff was again advised that there

is no basis for reopening the prior determinations made

in his case (Exhibit 9 of Declaration). On January 4, 1993,

Plaintiff inquired about his claim. By letter dated April 1,

1993, Plaintiff was provided a narrative history of his

case, an explanation of the calculation of his date last

insured, and three regulatory bases for reopening prior

determinations (Exhibit 10 of Declaration). Plaintiff

requested reopening of the Administrative Law Judge’s

decision and an extension of time in which to file a civil

action. On March 6, 1996, the Appeals Council issued an

order denying Plaintiff's request for an extension of time

in which to commence a civil action, as well as Plaintiff's

request for reopening (Exhibit 11 of Declaration). In

Plaintiff’s letter dated March 18, 1996, he again requested

reopening and an extension of time. By letter dated April

15, 1996, the Appeals Council affirmed its decision to

deny Plaintiff's requests (Exhibit 12 of Declaration).

On November 15, 1996, Plaintiff commenced a civil

action in the United States District Court for the District

of Nevada.

Judicial review of cases arising under Title II of the

Social Security Act is provided in, and expressly limited

by, § 205(g) and (h) of the Act, 42 U.S.C. § 405(g) and (h).

The remedy provided therein is exclusive. It is well set-

tled that the United States is immune from suit except as

SS

App. 58

it specifically consents to be sued and that the terms of

such consent define the jurisdiction of any court in which

such suit properly can be brought. United States v. Sher-

wood, 312 U.S. 584 (1941). Where a right is a creature of

statute, herein the right to sue, and the statute provides a

special remedy, as Section 205(g), infra, provides, that

remedy is exclusive. United States v. Babcock, 250 U.S. 328

(1919).

Section 205(g) reads in pertinent part as follows:

Any individual, after any final decision of the

Commissioner made after a hearing to which he

_ Was a party, irrespective of the amount in con-

troversy, may obtain a review of such decision

by a civil action commenced within sixty days

after the mailing to him of notice of such deci-

sion or within such further time as the Commis-

sioner may allow. ... As part of his answer the

Commissioner shall file a certified copy of the

transcript of the record including the evidence

upon which the findings and decision com-

plained of are based. The court shall have power

to enter, upon the pleadings and transcript of

the record, a judgment affirming, modifying or

reversing the decision of the Commissioner with

or without remanding the case for a rehearing.

The findings of the Commissioner as to any fact,

if supported by substantial evidence, shall be

concluding... .

Section 205(h) reads in pertinent part as follows: .

... No findings of fact or decision of the Com-

missioner shall be reviewed by any person, tri-

bunal, or governmental agency except as herein

provided. No action against the United States,

the Commissioner or any officer or employee

App. 59

thereof shall be brought under section 1331 or

1346 of Title 28, United States Code, to recover

on any claim arising under this subchapter.

It is therefore apparent that the only judicial remedy

available to an individual on a claim arising under Title II

of the Act is by a civil action brought against the Com-

missioner of the Social Security Administration, Section

205(g), supra, and that such an action can be brought only

in a case in which: (1) the individual was a party to a

hearing before the Commissioner, i.e., an Administrative

Law Judge of the Social Security Administration; (2) the

Commissioner has made a “final decision” on that claim;

and, (3) the individual timely commenced a civil action in

the proper district court.

Social Security Administration Regulations No. 4 set

forth the administrative procedures by which a claimant

for benefits under the Act may obtain a “final decision”

of the Commissioner. Following the initial determination

on his claim, a dissatisfied claimant may obtain recon-

sideration thereof. 20 C.F.R. §§ 404.909, 404.920. After

reconsideration he may request a hearing before an

Administrative Law Judge and, in certain specific

instances and upon timely request therefor, has absolute

right to such hearing. 20 C.F.R. §§ 404.933, 404.936,

404.955.

Under certain circumstances, the Administrative Law

Judge may dismiss a request for such hearing. 20 C.F.R.

§§ 404.957, 404.959. Such dismissal is final and binding,

(20 C.F.R. § 404.906), unless vacated by the Appeals

Council of the Social Security Administration either on its

own motion within 60 days after the Administrative Law

Judge’s order of dismissal or upon request by plaintiff of

App. 60

the Appeals Council made within 60 days of the dismissal

order.

If the hearing is granted, the claimant thereafter may

have the decision of the Administrative Law Judge,

issued after the hearing, reviewed by the Appeals Coun-

cil. To effect that review, he must make a request therefor

in writing with the Social Security Administration within

60 days from the date of receipt of notice to him of the

Administrative Law Judge’s decision (20 C.F.R.

§ 404.968(a)(1)) or within the time allowed by the Appeals

Council upon a written request for an extension of time

and good cause shown. 20 C.F.R. § 404.968(b). In the

absence of such review by the Appeals Council, the deci-

sion of the administration is final and binding upon all

parties to the hearing. 20 C.F.R. § 404.955.

Under applicable regulations and practice, there is a

“final decision” of the Commissioner if the Appeals

Council grants a request for review of the Administrative

Law Judge’s decision made after a hearing and renders a

decision thereon, or if the Appeals Council denies a

timely request for review of an Administrative Law

Judge’s decision made after a hearing thereby constitut-

ing the Administrative Law Judge’s decision the “final

decision” of the Commissioner. Thus, only after a request

is made of the Appeals Council to review the decision of

the Administrative Law Judge made after a hearing and

such request has been acted upon by the Appeals Council

as set forth above can there be a “final decision” of the

Commissioner subject to judicial review within the mean-

ing of Section 205(g) of the Act. 20 C.F.R. § 404.981.

artes

App. 61

The Plaintiff herein has failed to pursue and exhaust

those remedies with respect to his claim for benefits

provided by the Act and Regulations promulgated there-

under as set forth above.

Since there has been no hearing before an Adminis-

trative Law Judge in this case, no “final decision” of the

Commissioner has been rendered. Thus, there is no deci-

sion subject to judicial review pursuant to Section 205(g)

of the Act, 42 U.S.C. § 405(g); Hobby v. Hodges, 215 F.2d

754 (10th Cir. 1954). Since a failure to exhaust administra-

tive remedies is jurisdictional, the Court is without juris-

diction to entertain this suit. Coy v. Folsom, 228 F.2d 276

(3rd Cir. 1955); Brooks v. Cohen, 295 F.Supp. 628 (E.D. IIl.

1968); Henderson v. Celebrezze, 239 F.Supp. 277 (D.S.C.

1965); Rosen v. Celebrezze, 254 F.Supp. 280 (N.D.N.Y. 1964);

Harris v. Ribicoff, 200 F.Supp. 318 (N.D.W.Va. 1961); Mar-

shall v. Flemming, 180 F.Supp. 464 (E.D. Va. 1960).

This need for administrative exhaustion and strict

application of Section 205(g) of the Act was clearly

upheld in the case of Califano v. Sanders, 430 U.S. 99, 108

(1977).

We also agree that 205(g) cannot be read to authorize

Judicial review of alleged abuses of agency discretion in refus-

ing to reopen claims for Social Security benefits.

The pertinent part of 205(g) provides that:

‘Any individual, after any final decision of the

Commissioner made after a hearing to which he

was a party, irrespective of the amount in con-

troversy, may obtain a review of such decision

by civil action commenced within sixty days.’

App. 62

“This provision clearly limits judicial review of

a particular type of agency action, a ‘final deci-

sion of the Commissioner made after a hear-

ing’ . . . Moreover, an interpretation that would

allow a claimant judicial review simply by filing

~- and being denied - a petition to reopen his

claim would frustrate the congressional pur-

pose, plainly evidenced in 205(g) to impose a 60-

day limitation upon judicial review of the Com-

missioner’s final decision on the initial claim for

benefits. 20 C.F.R. § 404.951 [recodified as

404.981, 45 F.R. 52088-98 (August 5, 1980)]. Con-

gress determination so to limit judicial review to

the original decision denying benefits is a policy

choice obviously designed to forestall repetitive

or belated litigation of state eligibility claims. Our

duty, of course, is to respect that choice.”

(Emphasis supplied.)

Only claims for benefits which are pursued through

the initial, reconsideration, hearing, and Appeals Council

levels in a timely fashion and have received a final deci-

sion of the Commissioner can be reviewed under 205(g)

of the Act. Accordingly, where claimants do not timely

request and receive Appeals Council action on a hearing

decision, there is no jurisdiction for a review of the merits

of the case.

Additionally, in his complaint, Plaintiff argues that

the Commissioner’s denial of reopening is incorrect. It is

well established that the Commissioner’s denial of

reopening is not a final decision subject to judicial review.

Califano v. Sanders, 430 U.S. at 108; Davis v. Schwerker, 665

F.2d 934, 935 (9th Cir. 1982); Krumpelman v. Heckler, 767

F.2d 586, 589 (9th Cir. 1985).

App. 63

Accordingly, Defendant submits that this action

should be dismissed.

DATED this 17th day of September, 1997.

Respectfully submitted,

KATHRYN E. LANDRETH

United States Attorney

/s/ Carlos A. Gonzalez

CARLOS A. GONZALEZ

Assistant U.S. Attorney

OF COUNSEL:

Arthur J. Fried

General Counsel

Charlotte A. Hardnett

Principal Deputy General Counsel

Jack Sacchetti

Acting Associate General Counsel

Litigation Division

Peter S. Krynski

Supervisory Attorney

Laureen Penn, Attorney

Office of the General Counsel

Social Security Administration

App. 64

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

ROBERT WENZEL,

264-50-3342

Plaintiff CIVIL ACTION NO.

CV-S-96-01063-

HDM (LRL)

VS.

JOHN J. CALLAHAN,

ACTING COMMISSIONER

OF SOCIAL SECURITY,

Defendant

ee eee eee eee ee ee

DECLARATION OF WILBUR J. LAUB, CHIEF

COURT CASE PREPARATION AND REVIEW

BRANCH 1, OFFICE OF HEARINGS AND APPEALS,

SOCIAL SECURITY ADMINISTRATION

I, WILBUR J. LAUB, Chief, Court Case Preparation

and Review Branch 1, of the Office of Appellate Opera-

tions, Office of Hearings and Appeals, administers the

nationwide hearings and appeals program for the Social

Security Administration. The office of Hearings and

Appeals includes the Appeals Council and Administra-

tive Law Judges who hold hearings on claims arising

under Title II, of the Social Security Act, as amended,

when such hearing is duly requested by a claimant who is

dissatisfied with the administrative determination on his

or her claim. The Office of Appellate Operations provides

professional and technical advice to the Associate Com-

missioner and other Administrative Appeals Judges of

the Appeals Council in the processing of cases in which a

civil action has been filed.

; App. 65

(2) One function of the Appeals Council is to act on

requests for review of hearing decisions made by Admin-

istrative Law Judges and to either grant, deny, or dismiss

, any such request. Under the regulations of the Social

Security Administration, if the Appeals Council denies a

timely request for review of a hearing decision, that

hearing decision thereupon becomes the “final decision”

within the meaning of, and subject to, the provisions for

judicial review in section 205(g) of the Social Security Act,

as amended, 42 U.S.C. section 405(g), the first sentence of

which reads as follows:

“Any individual, after any final decision of the

Commissioner made after a hearing to which he

was a party, irrespective of the amount in con-

troversy, may obtain a review of such decision

by a civil action commenced within sixty days

after the mailing to him of notice of such deci-

sion or within such further time as the Commis-

sioner may allow. * * * ”

(3) Social Security Administration Regulations No.

4, section 404.988 (20 CFR 404.988), as pertinent herein,

provides as follows:

“A determination, revised determination, deci-

sion or revised decision may be reopened -

(a) Within 12 months of the date of the notice

of the initial determination, for any reason;

(b) Within four years of the date of the notice

of the initial determination if we find good

cause, as defined in section 404.989, to reopen

the case; ****

ie In defining “good cause”, section 404.989 of Regulations

No. 4 (20 CFR 404.989) provides:

App. 66

“(a) We will find that there is good cause to

reopen a determination or decision if -

(1) New and material evidence is furnished;

(2) A clerical error in the computation or

recomputation of benefits was made; or

(3) The evidence that was considered in mak-

ing the determination or decision clearly shows

on its face that an error was made.

_ (b) we will not find good cause to reopen your

case if the only reason for reopening is a change

of legal interpretation or administrative ruling

upon which the determination or decision was

made.”

Section 404.903 of Regulations No. 4 (20 CFR 404.903)

provides in pertinent part:

“Administrative actions that are not initial

determinations may be reviewed by us, but they

are not subject to the administrative review pro-

cess provided by this subpart, and they are not

subject to judicial review. These actions include,

but are not limited to, an action —

(1) Denying your request to reopen a

determination or a decision; * * * ”

(4) I am responsible for the processing of claims

under Title II of the Social Security Act, as amended,

whenever a civil action has been filed in the State of

Nevada (see 53 Fed. Reg. 29,778 (1988)). The official files

maintained by the Social Security Administration relating

to the claims of the plaintiff, ROBERT WENZEL, filed in

1968 and 1972 under Title II of the Social Security Act, are

unavailable. The official file relating to the claim filed on

August 2, 1988, is presently within my legal custody and

'

‘

1S OTS RMIT

tt eee ee

App. 67

has been examined under my supervision. To the best of

my knowledge and belief said file and other information

shows that:

(a) The Social Security Administrative Instructions

Manual System sets forth the current policy regarding the

storage and destruction of inactive claim folders. The

current instructions regarding the storage and destruc-

tion of inactive disability claim files are contained in

section DIB-01.01.00 (Exhibit 1).

(b) Request for Records Disposition Authority,

approved on February 3, 1988, revised the retention

period to 5 years after the event date the inactive claim

was denied (disallowed) or terminated. Any inactive

claim file which, having already served the requisite

5-year retention period, has been destroyed (EXHIBIT 2).

(c) The claimant filed an application for disability

insurance benefits in October 1968, and was found under

a disability for the period October 1968 through May 1969

(see Exhibit 10).

(d) On May 21, 1974, an Administrative Law Judge

issued a decision finding that the claimant is not under a

disability based on the application filed September 13,

1972 (Exhibit 3, pages 7ff are unavailable).

(e) On October 2, 1974, the Appeals Council denied

plaintiff’s request for review of that decision. Although

advised of the right to commence a civil action within 60

days of receipt of the notice, such action was not com-

menced (Exhibit 4).

(f) On August 2, 1988, plaintiff filed his third appli-

cation for disability insurance benefits, alleging onset of

'

,

ee

App. 68

disability as March 12, 1980 (Exhibit 5). This application

was denied by notice dated August 14, 1988. Although

advised of the right to request reconsideration of the

determination within 60 days of receipt of the notice,

such request was not made. Plaintiff was also advised by

notice dated June 27, 1988, that he is ineligible for Supple-

mental Security Income (Exhibit 6).

(g) By letter dated July 13, 1992, plaintiff was

advised that he last met the insured status requirements

of the Act on March 31, 1977, and that there is no basis for

changing the determination dated August 14, 1988

(Exhibit 7).

(h) On August 27, 1992, after a complete investiga-

tion of plaintiff's earnings record, it was affirmed that

insured status was last met on March 31, 1977. Plaintiff's

prior period of disability, and his earnings for 1978, 1979,

and 1980 do not extend the date last insured (Exhibit 8).

(i) By letter dated September 4, 1992, plaintiff was

again advised that there is no basis for reopening the

prior determinations made in his case (Exhibit 9).

(j) By letter dated April 1, 1993, plaintiff was pro-

vided a narrative history of his case, an explanation of

the calculation of his date last insured, and the regulatory

bases for reopening prior determinations (Exhibit 10).

(k) On March 6, 1996, the Appeals Council issued

an order denying plaintiff’s request for an extension of

time in which to commence a civil action, as well as

plaintiff’s request for reopening (Exhibit 11).

Ds ak 5

App. 69

(1) By letter dated April 15, 1996, the Appeals Coun-

cil affirmed its decision to deny plaintiff’s requests

(Exhibit 12).

(m) On November 15, 1996, plaintiff commenced a

civil action in the United States District Court for the

District of Nevada.

(n) There is no “final decision” within the meaning

of, and subject to, the provisions for judicial review in

section 205(g) of the Social Security Act, as amended, 42

U.S.C. section 405(g).

In accordance with 28 U.S.C. § 1746, I declare under

penalty of perjury that the foregoing is true and correct to

the best of my knowledge and belief.

SEP 17 1997 /s/ Wilbur J. Laub

DATE WILBUR J. LAUB

App. 70

8/2/88

Exhibit 5

APPLICATION FOR DISABILITY

INSURANCE BENEFITS

I apply for a period of disability and/or all insurance

benefits for which I am eligible under title II and part A

of title XVIII of the Social Security Act, as presently

amended.

PART I - INFORMATION ABOUT

THE DISABLED WORKER

1. (a) PRINT your name

FIRST NAME, MIDDLE INITIAL, LAST NAME

Robert M. Wenzel

(b) Enter your name at birth if different from item

(a)

(c) Check (“) whether you are

[X] Male { ] Female

2. Enter your Social Security Number

264/50/3342

3. (a) Enter your date of birth

MONTH, DAY, YEAR

3-11-37

(b) Enter name of State or foreign country where

you were born.

AL

If you have already presented, or if you are now present-

ing, a public or religious record of your birth established

before you were age 5, go on to item 4.

App. 71

(c) Was a public record of your birth made before

you were age 5?

oe ee

[X] Yes [ ] No [ ] Unknown

(d) Was a religious record of your birth made

before you were age 5?

[X] Yes [ }] No { } Unknown

4. (a) What is your disabling condition? (Briefly

describe the injury or illness that prevents, or

has prevented, you from working.)

Blood circulation problems in left leg

(b) Is your injury or illness related to your work in

any way?

[X] Yes { } No

5. (a) When did you become unable to work because

of your disabling condition?

MONTH, DAY, YEAR

03/12/80

(b) Are you still disabled? (If “yes,” go on to item

6.)

(If “No.” answer (c).)

[X]} Yes [ ] No

(c) If you are no longer disabled, enter the date

your disability ended.

MONTH, DAY, YEAR

6. (a) Have you (or has someone on your behalf) ever

filed an application for Social Security benefits,

a period of disability under Social Security,

App. 72

supplemental security income, or hospital or

medical insurance under Medicare?

[X] Yes (If “Yes.” answer (b) and (c).)

[ ] No { ] Unknown

(If “No,” or “Unknown go on to item 7.)

(b) Enter name of person on whose Social Security

record you filed other application.

Self denied — no appeal pending

(c) Enter Social Security Number of person named

in (b).

If unknown, check this block. [ ]

264 /50/3342

7. (a) Were you in the active military or naval service

(including Reserve or National Guard active

duty or active duty for training) after Septem-

ber 7, 1939 and before 1968?

[X] Yes [ ] No

(If “Yes” answer (If “No.” go on

(b) ar [copy omitted in original]

(b) Enter dates of service

FROM: (MO

08/ [copy omitted in original]

(c) Have you ever been (or will you be) eligible for

a monthly benefit from a military or civilian

Federal agency? (Include Veterans Administra-

tion benefits only if you waived military retire-

ment pay)

8. (a) Have you filed (or do you intend to file) for any

other public disability benefits? (Include

ACRE OES 9

10.

(b)

(a)

(b)

(a)

(b)

(c)

App. 73

workers’ compensation and Black Lung bene-

fits)

[X] Yes (If “Yes,” answer (b).)

[ ] No (If “No.” go on to item 9.)

The other public disability benefit(s) you have

filed (or intend to file) for is (Check as many as

apply):

[X] Veterans Administration Benefits

[ ] Supplemental Security Income

[ ] Welfare

{ ] Other (If “Other,” complete a Workers’

Compensation/Public Disability Benefit

Questionnaire)

Have you ever engaged in work that was cov-

ered under the social security system of a coun-

try other than the United States? (If “Yes,”

answer (b).) (If “No,” go on to item 10.)

{ ] Yes [X] No

List the country(ies):

Are you entitled to, or do you expect to become

entitled to, a pension or annuity based on your

work after 1956 not covered by Social Security?

[ ] Yes (If “Yes,” answer (b) and (c).)

[X] No (If “No,” go on to item 11.)

[ ] I became entitled, or expect to become

entitled, beginning

MONTH YEAR

[ ] I became eligible, or expect to become eli-

gible, beginning

MONTH YEAR

App. 74

I agree to notify the Social Security Administration if I

become entitled to a pension or annuity based on my

employment after 1956 not covered by Social Security, or

if such pension or annuity stops.

11. Enter below the names and addresses of all the

persons, companies, or Government agencies for

whom you have worked this year, last year, and the

year before last.

If the above does not apply, write “NONE” below

and go on to item 13.

NAME AND Work Began Work Ended

ADDRESS OF (If still working

EMPLOYER show “Not

(If you had more ended”)

than one

employer, please

list them in order

beginning with

your last (most

recent) employer)

MONTH YEAR MONTH YEAR

None

(If you need more space, use “Remarks” space on page 3.)

12. May the Social Security Administration or the State

agency reviewing your case ask your employers for

information needed to process your claim?

[X] Yes [ } No

13. THIS ITEM MUST BE COMPLETED, EVEN IF YOU

WERE AN EMPLOYEE.

(a) Were you self-employed this year, last year, or

the year before?

[ J

[ J

[ J

(a)

(b)

(c)

(d)

App. 75

(If “Yes,” answer (b).) (If “No,” go on to item

14.)

[ ] Yes [X] No

(b) Check the year or years in which you were

self-employed

In what kind of trade or business were you self-

employed? (For example, storekeeper, farmer,

physician)

Were your net earnings from your trade or busi-

ness $400 or more? (Check “Yes” or “No”)

This year

Last Year [ ] Yes { }] No

Year before last [ ] Yes [ } No

How much were your total earnings last year?

(Count both wages and self-employment

income. If none, write “None.”)

Amount $ None

How much have you earned so far this year? (If

none, write “None.”)

Amount $ None

Did you receive any money from an

employer(s) on or after the date in item 5(a)

when you became unable to work because of

your disability? (If “Yes,” give amounts and

explain in “Remarks” on page 4.)

[ ] Yes {X] No

Amount $

Do you expect to receive any additional money

from an employer such as sick pay, vacation

pay, other special pay?

App. 76

(If “Yes,” please give amounts and explain in

“Remarks” on page 4.)

[ ] Yes [X] No

Amount $

PART II —- INFORMATION ABOUT THE

DISABLED WORKER AND SPOUSE

15. Have you ever been married?

[X] Yes { ] No

(If “Yes,” answer item 16.) (If “No,” go on to item

17.)

16. (a) Give the following information abut your cur-

rent marriage. If not currently married, show

your last marriage below.

To whom married

Teruko Nakajima

When (Month, day, year)

4-10-75

Where (Name of City and State)

Honolulu HI

Your current or last marriage

How marriage ended (If still in effect, write “Not ended.”

—— When (Month, day, year)

Where (Name of City and State)

Marriage performed by

[X] Clergyman or public official

[ ] Other (Explain in Remarks)

Spouse’s date of birth (or age)

12-9-46

PRM MER Tp *

App. 77

If spouse deceased, give date of death

Spouse’s Social Security Number (If none or unknown, so

indicate)

228/11/0533

(b) Give the following information about each of

your previous marriages. (If none, write

“None.”)

To whom married

No Others

When (Month, day, year)

Where (Name of City and State)

Your previous marriage

How marriage ended

When (Month, day, year)

Where (Name of City and State)

Marriage performed by:

[ ] Clergyman or public official

[ ] Other (Explain in Remarks)

Spouse’s date of birth (or age)

If spouse deceased, give date of death

Spouse’s Social Security Number (If none or unknown, so

indicate)

(Use a separate statement for information

about any other marriages.)

17. Have you or your spouse worked in the railroad

industry for 7 years or more?

[ ] Yes [X] No

App. 78

PART III - INFORMATION ABOUT THE

DEPENDENTS OF THE DISABLED WORKER

18. If your claim for disability benefits is approved,

your children (Including natural children, adopted

children, and stepchildren) or dependent grand-

children (including stepgrandchildren) may be eligi-

ble for benefits based on your earnings record.

List below FULL NAME OF ALL such children who

are now or were in the past 12 months UNMARRIED

and:

e UNDER AGE 18

e AGE 18 TO 19 AND ATTENDING SECONDARY

SCHOOL

e DISABLED OR HANDICAPPED

(age 18 or over and disability began before age 22)

(IF THERE ARE NO SUCH CHILDREN, WRITE

“NONE” BELOW AND GO ON TO ITEM 19.)

Charles Anthony Wenzel 12-22-75

Anson Blair Wenzel 3-15-79

19. Do you have a dependent parent who was receiving

at least one-half support from you when you became

unable to work because of your disability? (If “Yes,”

enter name and address in “Remarks” on page 4.)

[ ] Yes [X] No

IMPORTANT INFORMATION ABOUT

DISABILITY INSURANCE BENEFITS -

PLEASE READ CAREFULLY

I. SUBMITTING MEDICAL EVIDENCE: I under-

stand that as a claimant for disability benefits, I am

responsible for providing medical evidence showing

cea GFE Tl a SES na Sema oat

App. 79

the nature and extent of my disability. I may be

asked either to submit the evidence myself or to

assist the Social Security Administration in obtain-

ing the evidence. If such evidence is not sufficient to

arrive at a determination, I may be requested by the

State Disability Determination Service to have an

independent examination at the expense of the

Social Security Administration.

Il. RELEASE OF INFORMATION: I authorize any

physician, hospital, agency or other organization to

disclose to the Social Security Administration, or to

the State Agency that may review my claim or con-

tinuing disability, any medical record or other infor-

mation about my disability.

I also authorize the Social Security Administration

to release medical information from my records,

only as necessary to process my claim, as follows:

e¢ Copies of medical information may be provided

to a physician or medical institution prior to my

appearance for an independent medical examina-

tion if an examination is necessary.

e Results of any such independent examination

may be provided to my personal physician.

e Information may be furnished to any contractor

for transcription, typing, record copying, or other

related clerical or administrative service per-

formed for the State Disability Determination

Service.

e The State Vocational Rehabilitation Agency may

review any evidence necessary for determining

my eligibility for rehabilitative services.

ee ome a ae

App. 80

THIS MUST

BE

ANSWERED ® 20. DO YOU UNDERSTAND ANY

AGREE WITH THE AUTHORIZA-

TIONS GIVEN ABOVE?

[X] Yes [ ] No (If “No,” explain

why in “Remarks.”)

REMARKS (You may use this space for any explanation.

If you need more space, attach a separate sheet.)

Ill. REPORTING RESPONSIBILITIES: I agree to

promptly notify Social Security if:

e My MEDICAL CONDITION IMPROVES so that I

would be able to work even though I have not

yet returned to work.

e I GO TO WORK whether as an employee or a

self-employed person.

e I apply for or receive a decision on benefits

under any WORKERS’ COMPENSATION law or

plan (including Black Lung benefits from the

Department of Labor), or other public benefit

based on disability.

e I am imprisoned for conviction of a felony.

The above events may affect my eligibility to disability

benefits as provided in the Social Security Act, as

amended.

App. 81

I know that anyone who makes or causes to be made a

false statement or representation of material fact in an

application or for use in determining a right to payment

under the Social Security Act commits a crime punish-

able under Federal law by fine, imprisonment or both. I

affirm that all information I have given in this docu-

ment is true.

SIGNATURE OF APPLICANT

Signature (First name, middle initial, last name) (Write in

ink)

SIGN HERE ® /s/ Robert M. Wenzel

Date (Month, day, year)

August 1, 1988

Telephone Number(s) at which you may be contacted

during the day. (Include the area code)

702 458-0694

Mailing Address (Number and street, Apt. No., P.O. Box,

or Rural Route) (Enter residence address in “Remarks” if

different)

3989 Cedaredge Ct

City and State

Las Vegas NV

ZIP Code 89120

Enter Name of County (if any) in which you now live

Clark

ie Witnesses are required ONLY if this application has been

| signed by mark (X) above. If signed by mark (X), two

| witnesses to the signing who know the applicant must

la A i iis nk Sic Si i aie a A a aD

App. 82

sign below, giving their full addresses. Also, print the

applicant’s name in the Signature block.

1. Signature of Witness

Address (Number and street, City, State, and ZIP Code)

2. Signature of Witness

Address (Number and street, City, State, and ZIP Code)

App. 83

Supplemental Security Income

Information

From: Department of Health and Human Services

Social Security Administration

Date: June 27, 1988

Robert M. Wenzel

4 3989 Cedaredge Ct

Las Vegas Nv 89120

On June 27, 1988, we discussed eligibility for payments

from the supplemental security income program with

This letter is an informal decision on your eligibility for

supplemental Security Income only. This does not affect

your entitlement to Social Security benefits or Medicare.

We believe that, according to your statements, you are

not eligible to receive supplemental security income ben-

efits at this time because:

[ ] You are not age 65 and neither blind nor

disabled.

\

[ ] You are neither a US. citizen nor lawfully-

admitted alien or alien residing in the U.S.

under color of law.

[X] Your monthly income of about $1598.00 is

too high for any payment in this State.

[ ] Your personal/you and your spouse’s

resources of about $___ are more than the

allowable limit of $ ___

[ ] You were not interested in filing a claim.

_—,

as

You have not signed and returned the

application which was completed with you

sae a et oy a ae

App. 84

over the telephone. To become eligible for

payment, a signed application must be

received by a Social Security office.

[ ] Other.

If you want a formal decision about your eligibility for

supplemental security income, or believe that our infor-

mation is incorrect or incomplete, you should file an

application. You may file an application at any time.

However, the date of this inquiry may be used as your

filing date only if you file by August, 1988. If you do not

file by this date, you may lose payments because of the

limitation on the retroactivity of formal applications for

supplemental security income.

If you have any questions about this letter, please tele-

phone or visit any Social Security office. If you call in

person, please take this letter with you.

Prey Sy Sar.>*

App. 85

KATHRYN E. LANDRETH

United States Attorney

CARLOS A. GONZALEZ

Assistant United States Attorney

701 East Bridger, 8th Floor

Las Vegas, Nevada 89101

Telephone: (702) 388-6336

Attorneys for Defendant

Social Security Administration

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

-0O0-

ROBERT WENZEL,

SSN: 264-50-3342

Plaintiff,

CV-S-96-01063-HDM-(LRL)

DEFENDANT’S MOTION

TO VACATE THIS

HONORABLE COURT’S

ORDER OF APRIL 24, 1997,

AND TO REOPEN THE

INSTANT CIVIL ACTION

V.

JOHN J. CALLAHAN,

Acting Commissioner

of Social Security

Administration,

Defendant.

i

COMES NOW, Defendant John J. Callahan, Acting

Commission of Social Security Administration, by and

through his attorneys, Kathryn E. Landreth, United States

Attorney for the District of Nevada, and Carlos A.

Gonzalez, Assistant United States Attorney, and moves

this Honorable Court for an order vacating its Order of

April 24, 1997, and reopening the instant civil action.

'

een

App. 86

STATEMENT OF THE CASE

On or around November 18, 1996, Plaintiff filed his

Complaint against Defendant.

Due to defective service of the original Complaint,

Plaintiff again served the Defendant on February 19, 1997.

On or around March 6, 1997, Defendant filed his

Motion for Remand to allow time to locate and/or recon-

struct Plaintiff’s missing administrative file.

This Honorable Court granted Defendant’s Motion

on April 24, 1997.

Defendant has now located Plaintitt’s official admin-

istrative file relating to his claim file on August 2, 1988.

In the interest of judicial economy and, moreover, in

the interest of justice, it is respectfully requested that the

instant litigation be reopened for a final adjudication

rather than force Plaintiff to refile his complaint thereby

incurring court costs due to circumstances beyond his

control.

Simultaneously with this Motion, Defendant is filing

his Motion To Dismiss.

DATED this 17th day of September, 1997.

Respectfully submitted,

KATHRYN E. LANDRETH

United States Attorney

/s/ Carlos A. Gonzalez

CARLOS A. GONZALEZ

Assistant U.S. Attorney

App. 87

No. 98-15857

IN THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

_ — a et Et te Oa

ROBERT M. WENZEL,

Plaintiff-Appellant

v.

KENNETH S. APFEL,

Commissioner of Social Security,

Defendant-Appellee.

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

BRIEF FOR DEFENDANT-APPELLEE

KATHRYN E. LANDRETH -

United States Attorney

ARTHUR J. FRIED

General Counsel,

Social Security Administration

CHARLOTTE J. HARDNETT

Principal Deputy General Counsel

JOHN M. SACCHETTI

Associate General Counsel

Litigation Division

ETZION BRAND

Acting Chief, Retirement,

Survivors and Supplemental

Assistance Litigation Branch

Office of the General Counsel

Social Security Administration

6401 Security Boulevard

Baltimore, Maryland 21235

Telephone: (410) 965-3169

ATTORNEYS FOR DEFENDANT-

APPELLEE

App. 88

TABLE OF CONTENTS

PAGE

TABLE CO} COI IUED cc ccccccccvccescesescesoeces i

TABLE OF AUTHORITIES ...cccccccccccccccccvvees ii-v

I. STATEMENT OF THE ISSUE................... 1

Il. STATEMENT OF JURISDICTION............... 1

Ill. STATEMENT OF THE CASE...............--- 2

a IV. STATEMENT OF FACES .ccccccccscccccccccens 3

V. SUMMARY OF THE ARGUMENT.............. 4

WE, =REIG EE vo kn 60 sees ceed des cecncesnsveeses 5

A. The Failure of Plaintiff to Exhaust His

Administrative Remedies and Obtain a

“Final Decision” Barred the District Court

from Reviewing This Action...........--. 5

B. The Discretionary Decision of the Commis-

sioner Denying Plaintiff's Request to

Reopen His Claim and to Extend the Time

For Seeking Judicial Review is Not Subject

to Judicial Review .......ccccccseceseceess 9

VEL, COE i cos ccccescecseccessvensscecnes 12

STATEMENT OF RELATED CASES ..............--- 13

CERTIFICATE OF COMPLIANCE ................-- 14

CERTIFICATE OF SERVICE. .....2-cccccccccveesess 15

es in ii i ne

App. 89

TABLE OF AUTHORITIES

CASES PAGE

Bass v. Social Security Administration, 872 F.2d 832

Cy Ge Bs nc ecb cnkcccedebevdavueve dkevterscdes 9

Block v. North Dakota, 461 U.S. 273 (1983) ............ 5

Bowen v. City of New York, 476 U.S. 467 (1986)...... 5, 8

Califano v. Sanders, 430 U.S. 99 (1977) ..........+.-. 6, 10

Heckler v. Day, 467 U.S. 104 (1984) ..........--.00-0-- 8

Hironymous v. Bowen, 800 F.2d 888 (9th Cir. 1986) ..... 9

Hoye v. Sullivan, 985 F.2d 990 (9th Cir. 1992) ...9, 6, 11

Lehman v. Nakshian, 453 U.S. 156 (1980) .............. 5

Mathews v. Eldridge, 424 U.S. 319 (1976) ............-. 6

Matlock v. Sullivan, 908 F.2d 492 (9th Cir. 1990)...... 10

Peterson v. Califano, 631 F.2d 628 (9th Cir. 1980) ..... 11

Singer v. Schweiker, 694 F.2d 616 (9th Cir. 1982)...... 11

Taylor v. Heckler, 765 F.2d 872 (9th Cir. 1985)........ 11

United States v. Sherwood, 312 U.S. 584 (1941)......... 5

United States v. Testan, 424 U.S. 392 (1976)............ 5

Weinberger v. Salfi, 422 U.S. 749 (1975) .........--+--- 6

STATUTES

Be Cs PE es dduswewndabiderconccerterts cessscetes 2

Be Bes Oe hvccveservreverevicetcevecesseusses 7

GE USA. BEES CE) onc cccvccvccccvcessseccsvesses passim

Be es Se GD os vb xdcccdecctndctscucevarecteceenes 5

es easels uddececsehouessuashvnsesaeenanes 7

Dt re ae agate ous 7

App. 90

REGULATIONS

iy IN 6 oc ccsouscvcnsedvedececacssccueak 8, 9

I noon noes hha ccchexesuccduins 7

oasis hc een coerce eos kes 7

Be I owas os ea wh oo db see daa 7

I NI io oobi vied vcdeeoovca dievnsccns 7

I hae ahaa hein 7

pe ee re 7

ok | SR en ee es .

ros soaker ei eeeen ns ~

20 C.F.R. §416.1400 ......... cece cece ceeeceeeeueees 8, 9

es ek ee 7

ia i eens 7

WP BI ove conv ie Rleahithdraveiidoss 7

WP CU GIRO navi o cacticns becccecsesbsbavesdics 7

I 55 sir eteiccnedlicacicnen 7

I OG oie coven ctnncodocovecceeus 7

20 C.F.R. §416.1455 2.0.00. c cece cece cece eecceeueeees -

I Be oo ics oa dinck crepe vescncdeevacius »

orig ic 2 9

CI Se ovo sibs eee 9

Se

App. 91

No. 98-15857

IN THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT M. WENZEL,

Plaintiff-Appellant

Vv.

KENNETH S. APFEL,

Commissioner of Social Security,

Defendant-Appellee.

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEVADA

BRIEF FOR DEFENDANT-APPELLEE

I. STATEMENT OF THE ISSUE

Whether the district court properly dismissed plain-

tiff-appellant’s complaint for lack of jurisdiction over the

subject matter of the cause of action.

Il. STATEMENT OF JURISDICTION

The district court had no jurisdiction under 42 U.S.C.

§ 405(g) to review the Commissioner’s denial of plaintiff-

appellant’s request to reopen his prior final decision and

to extend the time limit for filing a civil action. The

district court’s order dismissing the action was entered

on February 24, 1998. Plaintiff-appellant’s notice of

appeal was timely filed on April 22, 1998. This Court has

App. 92

jurisdiction to review the district court’s order pursuant

to 28 U.S.C. § 1291.

Ill. STATEMENT OF THE CASE

On November 15, 1996, plaintiff-appellant, Robert M.

Wenzel (plaintiff), filed a complaint in the United [sic]

District Court for the District of Nevada alleging jurisdic-

tion under 42 U.S.C. § 405(g) and Federal Rules of Civil

Procedure 8(a)-(e), seeking judicia! review of the Com-

missioner’s denial of his request to reopen his claim for

Social Security disability benefits and to extend the time

limit for filing a civil action. The Secretary filed a motion

to dismiss asserting that the district court lacked jurisdic-

tion to entertain the cause of action because plaintiff

failed to exhaust his administrative remedies and did not

obtain a “final decision” of the Commissioner as required

under 42 U.S.C. § 405(g). The district court, in an order

entered February 24, 1998, granted the Commissioner’s

motion and dismissed the ac

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