Unpublished Disposition, 914 F.2d 262 (9th Cir. 1986)

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U.S. Court of Appeals for the Ninth Circuit - 914 F.2d 262 (9th Cir. 1986)

Harriet C. LITTLEJOHN, Plaintiff-Appellant,v.Louis W. SULLIVAN, Secretary, HHS, Defendant-Appellee.

No. 89-35418.

United States Court of Appeals, Ninth Circuit.

Submitted July 10, 1990.* Decided Sept. 5, 1990.

Before HUG, NELSON and BRUNETTI, Circuit Judges.


MEMORANDUM** 

Appellant Harriet C. Littlejohn filed an application for Social Security disability benefits in 1976 and was denied. While her second claim, filed ten years later, was granted, the Appeals Council refused to reconsider the determination made on her 1976 application. Littlejohn then filed a complaint in federal district court asking that the decision of the Appeals Council be set aside. The court held that it was without jurisdiction to review the Secretary's discretionary refusal to reopen the 1976 application, and Littlejohn appealed. We affirm.

* Appellant Littlejohn first applied for Social Security disability benefits in September 1976 claiming that she was suffering from a neuromuscular disorder. The application was denied both initially and on reconsideration, and Littlejohn did not seek further administrative review of this claim.

In October 1986, Littlejohn filed a second application for disability benefits alleging that she had a "hole in her heart." This claim was argued before an administrative law judge (ALJ) who dismissed the application on res judicata grounds. The Appeals Council reversed, finding that the dismissal of the 1976 application did not preclude consideration of the later one.

Upon remand, the ALJ determined that appellant suffered from a disabling, congenital ailment which her physicians were unable to diagnose at the time of the first application due to the then-existing state of medical technology. The ALJ then reopened the determination on the 1976 application and granted the requested benefits using a disability onset date of January 15, 1971.1 

Reviewing the decision of the ALJ on its own motion, the Appeals Council concurred in the disability onset date but found that reopening was inappropriate since "there has been no evidence provided which establishes that there was a clear clerical error or an error on the face of the evidence that was considered at the time of the [1976 application]." Accordingly, the Council held that benefit payments must be based on the second application filed on October 16, 1986.2  The instant appeal followed.

II

Under 42 U.S.C. section 405(g), federal courts have jurisdiction to review a "final decision" of the Secretary. However, " ' [t]he Secretary's decision not to re-open a previously adjudicated claim for social security benefits' is a purely discretionary one and is therefore not considered a 'final' decision within the meaning of Sec. 405(g)." Krumpelman v. Heckler, 767 F.2d 586, 588 (9th Cir. 1985) (quoting Davis v. Schweiker, 665 F.2d 934, 935 (9th Cir. 1982)). Accordingly, federal courts are without jurisdiction to review the Secretary's refusal to re-open a claim for disability benefits. Krumpelman, 767 F.2d at 588; Davis, 665 F.2d at 935.

Unable to distinguish Davis and Krumpelman, Magistrate Hovis dismissed Littlejohn's complaint below. He noted, however, his discomfort with the result and with this court's refusal to apply equitable principles to the Secretary's decision not to re-open. To this end, the magistrate suggests that this court consider modifying or overruling Davis and Krumpelman.

While we share in the magistrate's sympathy for appellant's situation, we must follow Ninth Circuit precedent in this area. As we stated in Davis, interpreting section 405(g) to "allow a claimant judicial review simply by filing--and being denied--a petition to reopen his claim would frustrate the congressional purpose ... to impose a 60 day limitation upon judicial review of the Secretary's final decision on the initial claim for benefits." 665 F.2d at 935 (quoting Califano v. Sanders, 430 U.S. 99, 108 (1977)).

III

For the foregoing reasons, we find that the district court properly determined that it was without jurisdiction to review the Secretary's decision not to reopen appellant's 1976 application for disability benefits.

AFFIRMED.

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 1

As part of the process of awarding benefits, a disability onset date must be specified to ensure that the disability existed during the time in which the claimant was insured under the special insured status requirements of the Social Security Act. See 42 U.S.C. §§ 416(i) (3), 423(c) (1); Demandre v. Califano, 591 F.2d 1088, 1090 (5th Cir.), cert. denied, 444 U.S. 952 (1979)

This does not mean, however, that a claimant will receive benefits from this date. The date on which an individual may receive benefits is linked to the date of her application not to her disability onset date. Thus, by awarding benefits on the 1976 versus the 1986 application, the ALJ is effectively entitling Littlejohn to an extra ten years of payments. In no instance, however, would she receive benefits as far back as January 15, 1971. See 42 U.S.C. §§ 416(i), 423.

 2

Of course, the fact that the Council found disability from 1971 did not effectively reopen the 1976 application. As explained above, a disability onset date must be specified with respect to every application for benefits. Thus, the Council was required to make this finding in awarding benefits on the 1986 application