464 F.2d 617: Richard Maddox, Plaintiff-appellant, v. Elliot L. Richardson, Secretary of Health, Education Andwelfare, Defendant-appellee

This is an appeal from the dismissal of a complaint seeking review of a decision of the Secretary of Health, Education and Welfare denying disability benefits.

Appellant claims that he became disabled from work in 1955 because of a back injury. It is not disputed that his special earnings requirement expired on June 30, 1960. He has filed five applications for benefits, the fifth of which is before this court. The four earlier applications were made without the aid of counsel and, in each earlier case, appellant failed to request a hearing on his application after its denial by the Social Security Administration. He requested reconsideration only of the denial of the fourth application; and, upon reconsideration, it, too, was denied on August 20, 1966. No further appeals have been taken from any of the four earlier applications.

This application, which was accompanied by two medical reports not previously submitted, was filed on June 4, 1969, with the aid of counsel. Counsel for appellant now asserts that

[appellant] having been unrepresented prior to this application, proper medical evidence had not been submitted supporting his claim and counsel therefore submitted additional medical evidence clearly constituting new and material evidence under the Social Security Regulations and grounds for "good cause" for reopening plaintiff's earlier applications.

When this application was denied, a hearing was requested for the first time.

The hearing examiner denied the request for a hearing on the ground that the issues raised by the application were res judicata, and he refused to reopen the prior determinations in the case. He stated:

Section 404.937 of the Social Security Administration's Regulations No. 4 (20 CFR 404.937) provides as follows:

"The hearing examiner may, on his own motion, dismiss a hearing request, either entirely or as to any stated issue, under any of the following circumstances:

(a) 'Res Judicata-Where there has been a previous determination or decision by the Secretary with respect to the rights of the same party on the same facts pertinent to the same issue or issues which has become final either by judicial affirmance or, without judicial consideration, upon the claimant's failure timely to request reconsideration, hearing, or review, or to commence a civil action with respect to such determination or decision . . ."'

The Hearing Examiner can find no basis for reopening prior determinations made in this case, and he finds that the prior actions taken are res judicata with respect to the issues the claimant now seeks to resurrect.

Thereafter, appellant requested review of the hearing examiner's decision by the Appeals Council. That body informed him by certified letter that the "dismissal action of the hearing examiner is correct. Accordingly, the determination dated August 20, 1966, stands as the final decision of the Department."¹

In ruling upon appellee's motion to dismiss, the court below apparently regarded the complaint as one merely seeking review of the Secretary's determination of the merits of the application, under section 205(g) of the Social Security Act, 42 U.S.C. Sec. 405(g). The District Judge therefore dismissed the complaint on the ground that the Secretary's denial of the earlier applications for benefits had become final and no request for review had been made. He did not discuss the availability of review of the Secretary's decision denying reopening of prior determinations. However, appellee acknowledges the fact that the complaint may be read as also seeking review of the Secretary's decision denying reopening. Appellant contends that the decision not to reopen is reviewable both under the Social Security Act, 42 U.S.C. Sec. 405(g), and under the Administrative Procedure Act, 5 U.S.C. Sec. 701 et seq. He asserts that the additional medical reports submitted with his fifth application, particularly the reports of Doctors Ridgeway and Fisher, constitute "good cause" within the meaning of 20 C.F.R. Sec. 404.958, for reopening the Secretary's earlier determinations pursuant to 20 C.F.R. Sec. 404.957.²

We first observe that this Circuit has followed the Fourth and Third Circuits in holding that the doctrine of res judicata may validly be applied by the Secretary, pursuant to 20 C.F.R. Sec. 404.937, when a prior administrative denial of an application raising the same issues has become final because of the applicant's failure to make a timely request for a hearing. Gaston v. Richardson, 451 F.2d 461 (6th Cir. 1971). Appellant has suggested no basis for distinguishing that decision, and none appears. Accordingly, the District Court's decision refusing to review the merits of appellant's claim under Sec. 405(g) was correct.

However, in Gaston, we expressly did not decide whether to review the Secretary's refusal to reopen his determination, because

[the] pleading [filed in the District Court] does not attack the validity of the Secretary's first denial of benefits to plaintiff, neither is it in form or substance an attempt to obtain a reopening of the original and unappealed decision, as permitted by 20 C.F.R. Sec. 404.957.

Gaston v. Richardson, supra, 451 F.2d at 463 n. 2. Accordingly we decide for the first time whether judicial review is available to a claimant whose application for reopening a prior adverse determination has been denied by the Secretary. In approaching this question, we bear in mind the fact that

[t]he Act of Congress and the Regulations validly adopted thereunder exhibit much leniency in setting up the procedures to be employed by anyone seeking social security benefits. Notwithstanding the provisions of 20 C.F.R. Sec. 404.937 which provides for application of res judicata where timely use of the review procedures have not been employed, the Regulation gives an additional opportunity to overturn a decision of the Secretary. Regulation Sec. 404.937 provides for reopening within four years of an initial decision upon a showing of "good cause."

Gaston v. Richardson, supra, 451 F.2d at 465. We further observe that an authoritative answer has been provided for the question before us by the Second Circuit in Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966). We agree with the decision of that court, which was announced in an opinion authored by Judge Friendly.

Appellee's principal contention, as it was in Cappadora, is that sections 205(g) and (h) of the Social Security Act, 42 U.S.C. Secs. 405(g), (h), deprive the District Court of jurisdiction to review the denial of reopening. Those sections provide:

(g) Review.

Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. . . . The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. . . .

(h) Finality of Secretary's decision.

The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. . . .

Appellant relies upon the language of the Administrative Procedure Act held by the Cappadora court to permit review of a refusal to reopen. The applicable provisions of Title 5, U.S.C., provide:

Sec. 701. Application; definitions

(a) This chapter applies, according to the provisions thereof, except to the extent that-

(1) statutes preclude judicial review; or

(2) agency action is committed to agency discretion by law.

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Sec. 704. Actions reviewable

Agency action made reviewable by statute and final agency action for which there is no adequate remedy in a court are subject to judicial review. . . .

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(2) hold unlawful and set aside agency action, findings, and conclusions found to be-

(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;