Rakhil Felshina v. Richard Schweiker, as Secretary of Health and Human Services

707 F.2d 71, 36 Fed. R. Serv. 2d 861, 1983 U.S. App. LEXIS 27990
Court of Appeals for the Second Circuit·Decided May 13, 1983·No. 741, Docket 82-6245·Published·Cited by 17 cases

Opinions

PER CURIAM:

Rakhil Felshina applied for Supplemental Security Income (SSI) benefits under Sub-chapter XVI of the Social Security Act, 42 U.S.C. §§ 1381-83 (1976 & Supp. IV 1980) and was denied. Representing herself, Felshina exhausted her administrative reme[72] dies. Represented by the Community Action for Legal Services, she filed a complaint in the United States District Court for the Eastern District of New York seeking review of the Secretary’s decision that Felshina was not disabled as defined by the Social Security Act, 42 U.S.C. § 1382c(a)(3)(A), and accompanying regulations. Judge Eugene Nickerson granted the Secretary’s motion for judgment on the pleadings in a memorandum decision and order and dismissed the complaint. We reverse for reasons below set forth.

I. Jurisdiction

This appeal followed vacation of a judgment entered in February 1982 and reentry on August 12, 1982, pursuant to Fed.R.Civ.P. 60(b)(1), (6). Only if the reentry of judgment were proper was this appeal timely. On appeal, the Secretary argues that reentry was improper since made solely to permit appeal and that this court therefore lacks jurisdiction. We disagree. Although the Federal Rules may not be construed to extend the court’s jurisdiction, Fed.R.Civ.P. 82, the use of Rule 60(b) to permit filing of an appeal beyond the time limits set out in Fed.R.App.P. 4(a) does not require examination by this court. There is ample case law allowing a Rule 60(b) motion to remedy an excusable failure to take an appeal. See C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2864 at 215 & n. 27, Supp. at 40 n. 27. This court has accepted what it concluded was an erroneous Rule 60(b) order where the sixty days to appeal under Fed.R.App.P. 4(a) had expired, indicating that review of the court’s action may be sought only by taking an appeal from the order vacating the earlier judgment. Mizell v. Attorney General, 586 F.2d 942, 944 n. 2 (2d Cir.1978), cert. denied, 440 U.S. 967, 99 S.Ct. 1519, 59 L.Ed.2d 783 (1979). But see Rodgers v. Watt, 705 F.2d 1176 (9th Cir.1983) (per curiam) (dismissing appeal sua sponte for lack of jurisdiction). The moving party apparently convinced Judge Nickerson that there was “excusable neglect” within the standard adopted by both these cases. Because the Government did not cross appeal on this issue, we will not examine Judge Nicker-son’s exercise of discretion.

II. Disability

On review, the issues are (1) whether the Administrative Law Judge employed the correct legal standard, and (2) whether there is substantial evidence on the record to support the Secretary’s finding of ineligibility for SSI benefits. 42 U.S.C. §§ 405(g), 1383(c)(3).

A person is “disabled” within the meaning of the Act, and eligible for benefits providing income criteria are met, if she “is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months....” 42 U.S.C. § 1382c(a)(3)(A). Further,

an individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B). The applicable regulation, 20 C.F.R. § 416.920 (1982) describes the steps in evaluating disability. The Secretary reviews current work activity (there was none in this case), the severity of impairment(s), residual functional capacity, and age/education/work experience. “If we can find that you are disabled or not disabled at any point in the review, we do not review further.” “Severe impairment” can be proved in two ways: (1) by determining that the impairment “does not significantly limit your physical or mental abilities to do basic work activities” and (2) by comparing the medical facts to a list in the [73] Appendix. Id. (c), (d). The Administrative Law Judge must consider whether impairments in combination are severe. Id. (c); Kolodnay v. Schweiker, 680 F.2d 878, 880 (2d Cir.1982).

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Rakhil Felshina v. Richard Schweiker, as Secretary of Health and Human Services, 707 F.2d 71, 36 Fed. R. Serv. 2d 861, 1983 U.S. App. LEXIS 27990 (2d Cir. 1983).

707 F.2d 71 (Rakhil Felshina v. Richard Schweiker, as Secretary of Health and Human Services) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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