# Petition for Writ of Certiorari — Wenzel v. Apfel > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0535%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1999 - **Citation:** 528 U.S. 870 ## Text 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 Commissione [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0535%3A1. Public record. Not legal advice.