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Powell v. Heckler

May 2, 1986



Author: Fisher

Before: ADAMS and HUNTER, Circuit Judges and FISHER, District Judge*fn*

FISHER, District Judge

This appeal raises a novel issue concerning the scope of the review which may be undertaken by the Appeals Council of Social Security Administration where a claimant, aggrieved by only one aspect of the determination of the administrative law judge (ALJ), requests review of a narrow aspect of the ruling. Also in question is the notice to which the claimant is entitled, if any, where the Appeals Council's review goes substantially beyond the question originally presented. For the reasons which follow, we reverse. Our decision here makes it unnecessary to reach other questions suggested by the record, particularly whether the determination below is supported by substantial evidence. 42 U.S.C. § 405(g).

Appellant is a 59-year old former steel foundry worker with a seventh grade education. He stopped working on August 27, 1981, when his foundry was closed, and applied for disability benefits on November 30, 1981, alleging a history of respiratory ailments. The record contains references of pneumoconiosis, silicosis, asbestosis, and bronchitis.

A hearing was conducted before an ALJ on July 1, 1982, during which appellant testified that he had been able to continue working until the closing of his plant only because his quotas were reduced as part of the phasing out of production. In a decision dated August 3, 1982, the ALJ determined that appellant was was incapable of substantial gainful employment and was entitled to benefits as of January 1, 1982. Appellant, satisfied with this determination, urged however that August 27, 1981, rather than January 1, 1982, should have been fixed as his date of onset. Therefore, on August 20, 1982, timely application was made pursuant to 20 C.F.R. § 404.967*fn1 for Appeals Council review of the onset date. There were no further proceedings in the matter until May 16, 1983, when the Appeals Council notified appellant that his request for review had been granted. The notification, however, further advised that upon evaluation of the entire record the Council had concluded that appellant did not have a "severe impairment" nor was he under a "disability" within the meaning of the Social Security Act. The Appeals Council therefore proposed to reverse the determination of the ALJ and this action became the final decision of the Secretary on August 23, 1983. The date of onset question was never addressed by the Appeals Council.

Significantly, there is no indication in the record that, between August 3, 1982, and May 16, 1983, the Secretary provided appellant with any notice of her intent to challenge the ALJ's underlying disability determination. Such notice would clearly have been required within 60 days of the ALJ's decision under 20 C.F.R. § 404.969*fn2 had not appellant himself sought review. It is also noteworthy that during this period he was awarded workers compensation benefits by the Commonwealth of Pennsylvania on March 25, 1983.

Appellant filed a complaint in the District Court for Western Pennsylvania on September 6, 1983, seeking reversal of the Secretary's decision. The matter was then referred to a United States Magistrate. The following arguments were made on behalf of appellant in the District Court:

1. The Appeals Council erred in reversing the ALJ's decision which was supported by substantial evidence.

2. The Appeals Council erred by failing to limit its evaluation to the single issue raised by appellant.

3. The Appeals Council erred by failing to consider updated physician's reports which were supplied by appellant after the ALJ's decision and prior to the Council's final ruling.

The Magistrate recommended that the final determination of the Secretary be affirmed. The recommendation found the Secretary's conclusion to be supported by substantial evidence, rejected appellant's argument regarding the scope of review,*fn3 and omitted mention of the additional medical evidence as well as appellant's favorable determination from the Pennsylvania Workers Compensation Bureau. The District Court adopted the Magistrate's report and recommendation and granted the Secretary's cross-motion for summary judgment on December 5, 1984.

As noted previously, we do not reach the issue, so frequently the focus of this type of appeal, of whether the Secretary's determination is supported by substantial evidence or the issue pertaining to appellant's new medical evidence and compensation award. Instead, we reverse and remand, because the Appeals Council was wrong in extending the scope of review without proper notice to the claimant.

The Appeals Council, as noted in the margin, is explicitly authorized "within 60 days after the date of a hearing decision" to "decide to review the action that was taken." 20 C.F.R. § 404.969. Similarly, a claimant may request Appeals Council review by filing an application within 60 days of receiving notice of the decision. 20 C.F.R. § 404.967 and § 404.968. The regulations, however, are silent as to the scope of the review which may be undertaken by the Council upon a request such as Mr. Powell's. Therefore the questions are whether the Council's review is limited to the narrow issue raised by claimant or may the Council sua sponte, and without further notice, review the entire record for the purpose of reversing the ALJ's original disability finding. If the latter course is chosen, a secondary question arises: whether or not the Appeals Council should still ...

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