No. 96-7411

IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996

KIM SMITH, PETITIONER

v.
   
SHIRLEY S. CHATER,
COMMISSIONER OF SOCIAL SECURITY

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
                                     
BRIEF FOR THE RESPONDENT IN OPPOSITION

WALTER DELLINGER
Acting Solicitor General

FRANK W.  HUNGER
Assistant Attorney General

ANTHONY J. STEINMEYER
Attorney
Department of Justice 
Washington, D.C. 20530-0001
(202) 514-2217

ARTHUR J.  FRIED
General Counsel 

M. ASHLEY HARDER 
Attorney                

Social Security Administration 
Altmeyer Building.
6401 Security Boulevard       
Woodlawn, Maryland 21235                             

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QUESTION PRESENTED

Whether petitioner's  suit to  review  the  administrative

decision denying his  claim for Supplemental Security Income           -.

benefits was properly dismissed because petitioner failed to file

a timely  administrative appeal  and thus did not exhaust his

administrative remedies.

(I)

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IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1996

No.  96-7411

KIM SMITH, PETITIONER

v.

SHIRLEY S. CHATER,
COMMISSIONER OF SOCIAL SECURITY

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The decision of the court of appeals  (Pet. App.  B)  is
unpublished, but noted at 100 F.3d 948 (Table).   The decision of
the district court  (Pet. App. A)  is unreported. 

JURISDICTION

The judgment of the court of appeals was entered on September
24, 1996.  A petition for rehearing was denied on November 15,
1996.  The petition for a writ of certiorari was filed on January
5, 1997.  The jurisdiction of this Court is invoked under 28 U.S.C.
1254  (1).

STATEMENT

On September 27, 1988,  petitioner filed an application for
supplemental security income (SSI) benefits under title XVI of the

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Social Security Act,  42  U.S.C.  1381a et seq.  Pet.  App.  C.
Petitioner was  incarcerated  in November 1988.   Following an
administrative  hearing at   the  correctional  institution,   the
administrative law judge  (ALJ)  on March 29, 1990, found that
petitioner was disabled and eligible for SSI benefits as of the
date of his application, subject to reductions based on income and
resources.  Pet.  App.  C.  Petitioner was released from prison in
August 1990.  On September 10, 1990, petitioner filed a request to
the Appeals Council for review of the March 29, 1990 decision,
arguing that the ALJ erred in not setting the onset date as the
date of his earlier, previously-rejected applications.  The Appeals
Council  dismissed his  request as  untimely  under  20 C.F.R.
416.1468(a).  Pet.  App.  B.
Petitioner  then filed this action  in the United States
District Court for the Western District of Pennsylvania, alleging
that he was entitled to an earlier onset date  1.  A United States
magistrate recommended that petitioner's action be dismissed for
failure to exhaust administrative remedies.  The district court
adopted that recommendation.
Petitioner appealed to the United States Court of Appeals for
the Third Circuit.  In his brief to the Third Circuit, petitioner
alleged,  inter alia, that prior to September 1990, he tried to
appeal the ALJ decision by telephoning the Altoona Social Security
Office; he maintained that the Altoona office neither processed his

___________________(footnotes)                                                                               

1  Petitioner also requested review of an 1994 overpayment claim.
That issue is not raised in the certiorari petition.

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oral request nor sent him any papers to fill out and submit.  He
did not allege in his brief to the Third Circuit that an SSA
representative in the Altoona Office told him that he had to wait
until his release from prison to appeal.  The court of appeals
affirmed without opinion.

ARGUMENT

The unpublished order below,  which affirms the dismissal of
petitioner's action  for failure to exhaust his administrative
remedies,  is correct and consistent with the decisions of this
Court.  Further review is not warranted.
1.  The ALJ's decision was issued on March 29, 1990, but
petitioner did not file a request for review of that decision until
September 10, 1990, well after the expiration of the 60-day period
allowed.   20 C.F.R. 416.1468.  Because petitioner did not file a
timely request for review with the Appeals Council, he did not
obtain a  "final decision" of the Commissioner that would vest a
court with subject matter jurisdiction. 42 U.S.C.  405(g) ; 20 C.F.R.
416.1481; see also Califano  v.  Saunders, 430 U.S. 99 (1977)  2.
Moreover,  petitioner's challenge to the. ALJ's determination
regarding the correct onset date of his disability not only is
procedurally barred,  but also is without merit.  "Payment of SSI

___________________(footnotes)

2  A request for Appeals Council review must be in writing.  20
C.F.R.  416.1468(a)  &  (b).  That requirement is also set forth in
the notice of the ALJ's decision that petitioner received.  If a
claimant does not complete the entire administrative process as set
out in the regulations,  he has not exhausted his administrative
remedies and has not obtained the statutorily specified  "final
decision"  of the Commissioner, which is a prerequisite for judicial
review.  Califano  v.  Sanders, 430 U.S. 99, 108 (1977) .

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benefits may not be made for any period that precedes the date on
which an application is filed or, if later,  the date all conditions
for eligibility and payment are met."  20 C.F.R.  416.501.
2.  Petitioner maintains that because he was incarcerated
until August 1990, he was denied the opportunity to file a timely
appeal from the ALJ's decision.  That contention, too, is without
merit.  Although social security regulations prohibit the payment
of benefits for  "any month any part of which  [an]  individual is
[incarcerated] ,"  they  "do   not  prohibit an  individual from
prosecuting a claim for benefits covering a period during which he
was not incarcerated, see 20 C.F.R. 404.468; indeed, petitioners
September 1988 application for benefits, on which he partially
prevailed, was adjudicated while he was in prison.                             
Further, petitioner alleges that he attempted to appeal the
ALJ's decision by telephoning the Social Security Office in
Altoona.  Petitioner maintains for the first time in his petition
for certiorari that an SSA employee in the Altoona Social Security
Office told him that he could not appeal until he was released from
prison.  Since  that fact-bound assertion was  not  raised by
petitioner at either the district court or the court of appeals,
level ,  it should not be considered by this Court.  Singleton  v.  
Wulff, 428 U.S.  106, 120  (1976).

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CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ARTHUR J. FRIED
General Counsel

M.  ASHLEY HARDER
Attorney

WALTER DELLINGER
Acting  Solicitor General

FRANK W.  HUNGER
Assistant Attorney General

ANTHONY J. STEINMEYER
Attorney

MARCH 1997