SSR 72-54c: SECTION 205(c)(4) and (5) (42 U.S.C. 405(c)(4) and (5)). -- FINALITY OF DECISION -- CORRECTION OF EARNINGS RECORD AFTER EXPIRATION OF TIME LIMITATION

20 CFR 404.806, 404.807, 404.908, and 404.959

SSR 72-54c

Thompson v. Richardson, 452 F.2d 911 (2d Cir., 1971)

DAVIS, Judge:

Appellant Sawyer Thompson, an attorney, applied in May 1961, shortly

before he became 65, for social security old-age retirement insurance

benefits. He was informed on August 18, 1961 that he was entitled to such

benefits but that he had not supplied sufficient information as to his

self-employment earnings as a lawyer in 1958, 1959, and 1960 to permit

credit for those years -- thus reducing his award. He was told at the same

time that he could ask for reconsideration of the adverse determination

within six months. there was no request for a hearing or reconsideration

within that time but, over several years, appellant engaged in what he

terms "continuous negotiations" with the Social Security Administration in

an effort to prove that he had had enough earnings for the three omitted

years so that they could be counted. Finally, in August 1968, he submitted

additional evidence of his earnings (for 1958, 1959, and 1960) which was

apparently acceptable in form and detail, but the Administration then

informed him that it was too late to revise the original determination of

August 1961 since over four years had elapsed. Appellant sought a hearing

to overturn this ruling but the hearing examiner, without a hearing,

dismissed his request on the ground that the determination of August 18,1

961 had become "administratively final" and could not be reopened. The

Appeals Council affirmed, and this suit was brought in the Eastern

District of New York to review the refusal to grant a hearing and to

reopen. The Government moved for summary judgment which was granted by the

court below and the complaint dismissed.

sed his request on the ground that the determination of August 18,1

961 had become "administratively final" and could not be reopened. The

Appeals Council affirmed, and this suit was brought in the Eastern

District of New York to review the refusal to grant a hearing and to

reopen. The Government moved for summary judgment which was granted by the

court below and the complaint dismissed.

The Social Security Act, 42 U.S.C. § 405(b) authorizes the Secretary of

Health, Education and Welfare to set by regulation the time for requesting

a hearing, and it is firmly established that, in the absence of

exceptional factors, administratively finality (or administrative res

judicata ) forecloses reopening or review of adverse determinations

which have become final under the regulations Hughes v. Finch , 432 F.2d 93 (4th Cir 1970); Eastley v. Finch ,

431 F.2d 1351 (4th Cir 1970); Domozik v. Cohen , 413 F.2d 5

(3rd Cir. 1969); Sangster v. Gardner , 374 F.2d 498 (6th Cir.

1967); Hobby v. Hodges , 215 F.2d 754, 759 (10th Cir.

1954).

The determination of August 28, 1961 had long become final under the

Social Security Administration's regulations which provide, 20 C.F.R. §

404.908 (1971), that the "initial determination shall be final and binding

upon the party or parties to such determination unless it is reconsidered

in accordance with §§ 404.910-404.916, or it is revised in accordance with

§ 404.956." [1] The first

reference (§§ 404.910-404.916) is to normal and routine reconsideration,

with the ordinary six months time limit (of which remedy appellant did not

avail himself at all). However, the regulations also authorize an

extension of time of the ordinary six-months period, or a reopening of the

determination, under certain conditions. Except for fraud or several other

specific grounds (none of which is present here), there can only be

reopening "within 4 years after the date of the notice of initial

determination or decision" (§ 404.957(b))

vail himself at all). However, the regulations also authorize an

extension of time of the ordinary six-months period, or a reopening of the

determination, under certain conditions. Except for fraud or several other

specific grounds (none of which is present here), there can only be

reopening "within 4 years after the date of the notice of initial

determination or decision" (§ 404.957(b)). Since the initial determination

was given on August 18, 1961, this regulation barred reopening after

August 28, 1965.

It is equally unavailing for appellant to rely on the extension-of-time

provisions [2] -- which are

separate, and apparently distinct, from the "reopening" sections (see Cappadora v. Celebrezze , F.2d 1, 3 n.1 (2d Cir. 1966)) --

because the grant of an extension is barred where, as here, "the sole

purpose of the request is to seek revision of an individual's earnings

record or a finding as to wage or self-employment income after revision is

precluded by the provisions of section 205(c)(4) or (5) of the [Social

Security] Act [42 U.S.C. § 405(c)(4) or (5)]." 20 C.F.R. § 404.954(a)

(1971). Under section 205(c)(4)(5), 42 U.S.C. § 405(c)(4)(5), changes in

wage or self-employment records can readily be made prior to the

expiration of the statutory time limitation (three years, three months,

and fifteen days) following the year in question; that period had

obviously expired, with respect to 1958, 1959, and 1960, well before 1968

when appellant first supplied the needed documentation.

ection 205(c)(4)(5), 42 U.S.C. § 405(c)(4)(5), changes in

wage or self-employment records can readily be made prior to the

expiration of the statutory time limitation (three years, three months,

and fifteen days) following the year in question; that period had

obviously expired, with respect to 1958, 1959, and 1960, well before 1968

when appellant first supplied the needed documentation.

After the expiration of the statutory time limitation, the departmental

records are final with certain exceptions. Appellant relies on one of

these, relating to the claimant's filing of an income tax return showing

self-employment income can be used to correct the agency's own records. 42

U.S.C. §§ 405(c)(4)(C) and 5(F)(i). Since appellant wanted the

Administration to accept his 1958-1960 earnings as reported on his tax

returns only if the latter would make the Administration's records "more

nearly correct" (20 C.F.R. § 404.806(f) and 404.807(1971), and it was the

Administration's consistent position that, because Mr. Thompson's tax

returns did not take account of the expenses of his law practice, they

were not accurate reflections of self-employment earnings. In those

circumstances, it would not be, and was not, an abuse of discretion to

refuse to recognize the exception to finality which appellant

invokes. [3]

Under 20 C.F.R. § 404.908, supra , the only other conceivable basis

for holding the determination of August 28, 1961, not to be final would be

revision under § 404.956 ("revision for error or other reason"), for

instance on the basis of new and material evidence, but this procedure,

like reconsideration, is subject to the four-year limitation of §

404.957(b), supra.

llant

invokes. [3]

Under 20 C.F.R. § 404.908, supra , the only other conceivable basis

for holding the determination of August 28, 1961, not to be final would be

revision under § 404.956 ("revision for error or other reason"), for

instance on the basis of new and material evidence, but this procedure,

like reconsideration, is subject to the four-year limitation of §

404.957(b), supra.

The upshot is that, by 1968, when appellant finally submitted the

necessary information, he was firmly barred under the regulations. When

thereafter he sought a hearing, the hearing examiner correctly dismissed

his request under 20 C.F.R. § 404.937(a) (1971), providing for such

disposition where there has been a previous determination on the same

issue which has become final "upon the claimant's failure timely to

request reconsideration, hearing, or review or to commence a civil action

* * *".

Nevertheless, appellant says that he is entitled to be in court because

the Government is estopped to rely on limitations and administrative

finality by the actions of its agents during his "continuous negotiations"

with them from 1961 to 1968. But whether or not estoppel against the

Government can ever be raised in this type of case (see Filice v. Celebrezze , 319 F.2d 443, 446 (9th Cir. 1963), there is no basis

here for applying that doctrine. The materials presented by plaintiff

appellant show that what the Social Security Administration's employees

did was to suggest to him, repeatedly, the kind of documents he needed to

prove his case and where he might obtain them. There were no statements

that he had unlimited or extra time to make this proof, or that any

applicable period of limitations was being or would be tolled for one

reason or another. No question of his was answered erroneously so as to

cause him to believe he had more time than the regulations allowed, and he

was never affirmatively lulled into letting limitations run or in delaying

his proof

were no statements

that he had unlimited or extra time to make this proof, or that any

applicable period of limitations was being or would be tolled for one

reason or another. No question of his was answered erroneously so as to

cause him to believe he had more time than the regulations allowed, and he

was never affirmatively lulled into letting limitations run or in delaying

his proof. The Government's personnel were friendly and helpful, rather

than curt or close-mouthed, but obviously an estoppel cannot arise from

that sort of public courtesy. True, they continued to be helpful in the

same manner even after all limitation periods had expired, and there was

no real change of reopening, but the Social Security Administration cannot

be expected to take the initiative in warning claimants (who do not ask)

of the pit-falls and traps of limitations, or in keeping abreast of all

aspects of every case with which they deal. In this instance, there would

be even less of such an obligation since Mr. Thompson, though old and

infirm, was a lawyer and relatively knowledgeable.

Affirmed.

[1] Omitted [Ed.]

[2] Mr. Thompson did not in fact

request an extension of time under 20 C.F.R. §§ 404.953 or 404.954, but we

are assuming, without deciding, that some of the voluminous correspondence

with the Social Security Administration could be considered in effect such

a request.

[3] Appellee contends that

appellant's specific argument based on 42 U.S.C. § 405(c)(4) and (5) was

not raised below and is therefore not open here, but we have dealt with it

because the District Court refers, summarily, in its opinion to those

statutory provisions as not being available to appellant.