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June 26, 1986


The opinion of the court was delivered by: GREEN


 Pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g) (1983), *fn1" plaintiff Marguerite T. Ware filed a complaint on January 22, 1986, seeking judicial review of the Social Security Administration's ("SSA") denial of her claim for Widow's Insurance Benefits. On April 2, 1986, the defendant, Secretary of Health and Human Services ("the Secretary"), filed a motion to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted, or in the alternative, for summary judgment, pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 56.

 Defendant's motion is denied. The Court finds that jurisdiction is proper in this case and that plaintiff's complaint states a legally cognizable claim. Further, the Court finds that the Secretary's final decision is based on an incorrect application of the governing regulations, and denies the government's alternative motion for summary judgment. For the reasons discussed below, the Court also concludes that additional administrative action is necessary in this case and remands the cause to the SSA Appeals Council with directions to render a decision consistent with the findings of this opinion as set out below.

 I. Background

 The pertinent procedural facts appear not to be in dispute. Before the Court are defendant's memorandum in support of its motion, plaintiff's response and defendant's reply, with appended exhibits from the administrative record. For the purpose of considering the present motion, the exhibits submitted by the parties will be taken as true and accurate representations of the administrative record. 5 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1364 (1969 & Supp. 1985).

 On July 29, 1982, Mrs. Ware, acting pro se, filed an application for Widow's Insurance Benefits. This first application was denied on October 15, 1982, on the grounds that Mrs. Ware's previous marriage to Louis B. Coleman in 1937 had not been dissolved prior to the time she married the insured, Hampton J. Ware, in 1957. Although Mrs. Ware was informed that she had a right to appeal the determination within 60 days, request for reconsideration was not filed until some five months later. Mrs. Ware avers that prior to the expiration of the 60-day appeal period, she visited the Social Security Office twice and told a representative that she wished to appeal her denial of benefits. Mrs. Ware contends that she was "advised" by SSA that she must produce a divorce decree to be eligible for benefits and because she was unable to locate her divorce papers did not seek appeal within 60 days.

 Mrs. Ware obtained counsel on March 4, 1983. On March 23, 1983, she filed a request for reconsideration, which was dismissed as untimely on May 2, 1983. On May 9, and again on May 19, 1983, Mrs. Ware's counsel wrote to SSA and requested a reopening of her claim. In his May 9th correspondence, counsel requested that his letter be accepted as a "protective filing" should Mrs. Ware reapply for benefits. On June 8, 1983, SSA declined to reopen Mrs. Ware's application but accepted the protective filing date of May 9, 1983.

 Mrs. Ware filed a second application for benefits on August 9, 1983, in which she requested that her renewed application, along with the first, be considered and approved. The August 9th mailing apparently was never received by SSA and on March 7, 1984, a copy of the second application was filed. The second application was denied on April 16, 1984, on the ground that it was a "duplicate claim." Motion for reconsideration was also denied on November 16, 1984. The denial notice explained the standard for receipt of widow's benefits, the facts of Mrs. Ware's claim, and concluded that, absent new evidence of a divorce decree, the second application presented the same facts and issues involved in the first application which was denied October 15, 1982. The notice also informed Mrs. Ware that she had a right to request a hearing before an Administrative Law Judge ("ALJ") if she believed the reconsideration determination to be incorrect. Mrs. Ware exercised that right on November 19, 1984, and on March 12, 1985, a hearing was held before an ALJ to consider the merits of Mrs. Ware's claim for benefits.

 The decision issued by the ALJ on August 2, 1985, stated that Mrs. Ware was not the widow of an insured wage earner and therefore was not entitled to benefits. Thereafter, Mrs. Ware requested review of the ALJ's decision by the Appeals Council, claiming that the decision was "not in accordance with the evidence and applicable law." On December 9, 1985, the Appeals Council denied retroactively Mrs. Ware's November 19, 1984, request for a hearing on the grounds that it "should have been dismissed" as res judicata by the ALJ. The Appeals Council ruled that the ALJ's decision was of "no effect" and reinstated the October 15, 1982, denial as the final decision of the Secretary.

 II. Discussion

 A claimant may properly seek judicial review "after any final decision of the Secretary made after a hearing. . . ." 42 U.S.C. § 405(g). In this case there has been a final decision of the Secretary after a hearing on the merits. The defendant mistakenly contends that for the purpose of determining jurisdiction there has been no hearing. The Court finds that the applicable regulations do not authorize the Appeals Council to review an ALJ's hearing decision in order to nullify that decision and dismiss retroactively the hearing request.

 The Appeals Council claimed authority for its action under 20 C.F.R. § 404.967 (1985). This regulation ...

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