20 CFR 404.988 and 404.989

SSR 84-10c

Gosnell v. Secretary of HHS, 703 F.2d 216 (6th Cir. 1983)

When the Social Security Administration refused to reopen two previous denials, the claimant appealed, contending that his rights under the due process clause of the U.S. Constitution had been violated. The district court found that the claimant had failed to present a colorable constitutional claim. On appeal, the circuit court held that the Secretary's inability to find a file does not constitute a due process violation. The court further held that the due process clause does not require the Secretary to retain records perpetually to enable reopening of claims at any time, since such a rule would be manifestly inconsistent with the Social Security Act's requirement that the burden is on claimants to prove all elements of entitlement to disability insurance benefits. In the court's view, this burden includes the burden of showing "error . . . on the face of the evidence" pursuant to 20 CFR 404.988(c)(8). Since the court found no constitutional violation present, the Secretary's refusal to reopen the determination was not an agency action for which judicial review was available.

Merritt, Circuit Judge:

This is the second time we have reviewed this Social Security case concerning the reopening of earlier claims decided fifteen years ago. Our earlier decision was Gosnell v. Califano, 625 F.2d 744 (6th Cir. 1980). The appeal this time presents the issue of whether the Secretary's refusal to reopen two of plaintiff William F. Gosnell's prior applications for Social Security disability benefits constitutes a violation of the due process clause of the Fifth Amendment of the U.S. Constitution. The District Judge dismissed the complaint because he concluded that plaintiff had failed to raise a colorable constitutional claim. We find that Gosnell's complaint does not state a valid cause of action under the due process clause, and accordingly we affirm the District Court's decision.


Plaintiff brought this action to obtain review of the Secretary's refusal to reopen disability applications that plaintiff had filed in 1964 and 1968. These applications arose from a lower back injury that plaintiff suffered in a 1963 automobile accident. Gosnell filed additional applications in 1972 and 1974, which, like the two previous applications, were denied by the Social Security Administration. He appealed only the 1974 denial and, after a hearing before an administrative law judge, was awarded benefits dating from July, 1971. This award was based on the 1972 application, which was reopened pursuant to 20 C.F.R. 404.957(b) (1980) (authorizing the reopening of cases for good cause within four years of initial determination).[1] Despite a finding that Gosnell had been disabled since December, 1964, the Administrative Law Judge refused to reopen the unsuccessful 1964 and 1968 applications because more than four years had elapsed since the initial denial of each of those applications. See 20 C.F.R. 404.988(b). Moreover, since the file for neither application could be found, reopening could not occur under 20 C.F.R. 404.988(c)(8), which provides that a case may be reopened "at any time if . . . [i]t 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."

In the original District Court proceeding, the trial judge reversed, ordered that the 1964 and 1968 applications be reopened, and awarded benefits dating from December, 1964. The Secretary appealed that ruling to this Court, which reversed, holding that, under Califano v. Sanders, 430 U.S. 99 (1977), the District Court lacked jurisdiction to review the Secretary's decision absent a constitutional challenge to the reopening refusal. Gosnell v. Califano, 625 F.2d 744 (6th Cir. 1980). This Court, however, allowed the District Court discretion to permit Gosnell to remedy the jurisdictional defect in an amended complaint. Id. at 745-46.

The District Court allowed Gosnell to file an amended complaint that alleged, for the first time, that the Secretary's refusal to open the 1964 and 1968 applications violated plaintiff's rights to due process and equal protection because the Secretary had lost the files concerning those two applications. The District Court granted the Secretary's motion to dismiss plaintiff's amended complaint, holding that Gosnell had failed to present a colorable constitutional claim. Gosnell v. Harris, 521 F. Supp. 956 (S.D. Ohio 1981). Plaintiff now appeals that ruling.[2]


In its opinion, the District Court noted "that the opportunity to reopen final decisions on applications . . . [is] afforded by the Secretary's regulations." Id. at 963, citing Califano v. Sanders, 430 U.S. 99, 108 (1977). The District Court viewed Gosnell's amended complaint as asserting "essentially an abuse of agency discretion claim," which it refused "to convert . . . into a constitutional claim and thereby circumvent the Supreme Court's holding in Califano v. Sanders, supra." 521 F.Supp. at 963. The District Court thus held that it lacked subject matter jurisdiction over the case.

We affirm the District Court's decision to dismiss the complaint, although we are not prepared to hold -- as urged by the government -- that a petition to reopen is not entitled to any constitutional protection. Instead, we conclude that Gosnell's due process rights were not violated by the Secretary's refusal to reopen the 1964 and 1968 applications. The Secretary's inability to find the files in question does not constitute a due process violation. We do not believe that the due process clause requires the Secretary to retain records perpetually in order to enable claimants to reopen their cases at any time. Such a rule would amount to saddling the Secretary with the burden of rebutting 20 C.F.R. 404.988(c)(8) and would be manifestly inconsistent with a statutory scheme that requires the claimant to prove all elements of entitlement to disability insurance benefits. See Mathews v. Eldridge, 424 U.S. 319, 336 (1976); Ragan v. Finch, 435 F.2d 239, 241 (6th Cir. 1970), cert. denied, 402 U.S. 986 (1971). Although he received a copy of the decision made by the Secretary on each application, Gosnell has not presented any pertinent evidence regarding these prior claims. The Constitution does not exempt citizens from the responsibility of maintaining their own records. The burden of showing "error . . . on the face of the evidence," 20 C.F.R. 404.988(c)(8) must reside with the claimant. We therefore find that the Secretary's refusal to reopen the 1964 and 1968 claims did not deprive Gosnell of due process and that petitioner's claim to this effect does not state a cause of action for constitutional relief under the due process clause.


Gosnell also argues that his "severe psychological problems" may have rendered the procedural safeguards afforded him during his first two applications constitutionally inadequate. These problems, he claims, may have prevented him from appealing the 1964 and 1968 adverse decisions in timely fashion. He accordingly requests that the case be remanded to the District Court for determination of this issue, citing this Court's decision in Parker v. Califano, 644 F.2d 1199 (6th Cir. 1981). Having reviewed the record, we find that it does not contain any claim or evidence of mental impairment comparable to that involved in Parker, where the claimant had a long history of mental illness preceding her application for disability insurance benefits.

The judgment of the District Court is affirmed.

Jones, Circuit Judge, filed a separate concurring opinion.

[1] 20 C.F.R. 404.957 has been subsequently recodified and now appears, without substantive change, as 20 C.F.R. 404.988 (1982). This opinion cites the Regulations in their revised form.

[2] Apparently having abandoned his equal protection claim on appeal, Gosnell now only alleges violation of his right to due process.

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