Appeal From the United States District Court For the Eastern District of Pennsylvania, D.C. Civil No. 83-3824.
Higginbotham, Stapleton, Circuit Judges, and Rodriguez,*fn* District Judge.
RODRIGUEZ, District Judge:
This is an appeal from an order of the United States District Court for the Eastern District of Pennsylvania which granted summary judgment to the Pennsylvania which granted summary judgment to the Secretary of Health and Human Services ("the Secretary"). This court has jurisdiction under 28 U.S.C. § 1291 (1982) to review the decision of the district court. The question presented by this appeal is whether, pursuant to an order of the district court remanding a case to the Secretary for a further hearing, the Secretary is empowered to examine issues other than those that were actually raised by the claimant in his civil action brought in the district court appealing the Secretary's final decision.
Appellant John Chrupcala applied for disability insurance benefits and Supplemental Security Income on October 14, 1981. This application was denied initially and on reconsideration. Appellant requested a hearing before an administrative law judge ("ALJ") and the hearing was held on June 1, 1982. The ALJ determined that appellant was disabled during the period March 15, 1981 to October 3, 1982. Appellant then requested the Appeals Council to review the ALJ's decision that appellant's disability ceased on October 3, 1982, and on June 3, 1983 the Appeals Council denied this request.*fn1
Appellant filed an action in the district court, contending that the ALJ's determination that plaintiff's disability ended on October 3, 1982 was not supported by substantial evidence. On April 2, 1984 the district court remanded the case to the Secretary for a further administrative hearing. On August 28, 1984 the Appeals Council notified appellant that in light of the district court's remand order, the Council was vacating its previous denial of appellant's request for review as well as the ALJ's decision, and that it was remanding the case to another ALJ for further proceedings consistent with the district court's remand order.*fn2
The new hearing was held on March 28, 1985. At the inception of the hearing, during which appellant was represented by a paralegal, the ALJ informed the appellant that the findings of the previous ALJ no longer had nay force or effect and that this new ALJ was required "to make a completely new and independent decision with regard to your disability from the date of your application from the onset date of 1981 through to the current time." Record at 225. Appellant stated that he understood this. Id. On May 7, 1985, more than one month after the hearing, the ALJ inquired of the Appeals Council as to the appropriate scope of his review of the case. On June 21, 1985 the Appeals Council informed the ALJ that because its remand had vacated the previous ALJ's decision, the scope of review was the same as it had been before that ALJ: whether the claimant was disabled at any time from the alleged onset date of disability through the date of the new ALJ's decision. Record at 204. The ALJ then issued a recommended decision which proposed to determine that appellant was not entitled to any period of disability or any benefits whatever. On August 27, 1985 a Notice of Recommended Decision was sent to the appellant, along with a copy of the recommended decision.*fn3 The notice informed appellant that:
You and your representative have the right to file briefs or statements about the recommended decision with the Appeals Council within twenty days from the date of this notice. If you cannot meet the 20-day deadline, please write to the Appeals Council immediately. The Appeals Council may give you more time if you can show that you have a good reason . . .
The Appeals Council will make its decision after considering the evidence and the recommended decision in your case, including any additional material you or your representative may have sent. A copy of the Appeals Council decision will be mailed to you and to your representative.
Appellant did not submit any brief or statement concerning the recommended decision, and on November 20, 1985 the Appeals Council issued a decision modifying the ALJ's findings in certain respects, but adopting the ALJ's recommended decision that appellant was not entitled to a period of disability or any benefits.
Appellant then filed an action in the district court, contending, inter alia, that the Appeals Council did not have the authority to undertake review of the first ALJ's decision when it did so. The district court found that because appellant was given notice that the second ALJ hearing would be de novo and failed to challenge it after having the opportunity to do so, appellant waived any alleged impropriety. See Memorandum Opinion and Order of the District Court at 10. In arriving at this conclusion the district court distinguished this court's opinion in Powell v. Heckler, 789 F.2d 176 (3d Cir. 1986), stating that "[t]he review of the ALJ's decision in the case sub judice was not initiated under either of [the] regulations [addressed in Powell ] and they are not applicable to this case."*fn4
In Powell the court held that:
Where a claimant makes timely application pursuant to 20 C.F.R. § 404.967 for review of a limited issue, such as date of onset, the Appeals Council's obligation, under 20 C.F.R. § 404.969, to provide notice within 60 days of a hearing decision of its intention to undertake a broader or full review on the merits is not abrogated, and failing such notice the ...