25 Soc.sec.rep.ser. 271, Unempl.ins.rep. Cch 14601amary E. Rogerson, Appellant, v. Secretary of Health and Human Services, 872 F.2d 24 (3d Cir. 1989)

On September 30, 1980, Rogerson filed a second application for disability benefits. Rogerson stated that she was suffering from hypertension and an enlarged liver and spleen that prevented her from working since September, 1975. The Secretary, denying her application initially, found that Rogerson did not suffer from a severe impairment. Because Rogerson did not seek any review of this determination, it became a final decision of the Secretary.

On October 15, 1985, after consulting counsel, Rogerson made the third application for disability benefits now at issue. She alleged that she had been disabled because of a liver disorder, hypertension, and severe arthritis and that because of her health problems she had been unable to work since April, 1975. Rogerson also stated that her health is now worse than when she previously applied for benefits. The Secretary denied the application initially.

Rogerson sought review of this third denial. In her Request for Reconsideration, she also requested that her "prior application" be reopened because the Secretary's decision was "based on an improper legal standard and contrary to the evidence submitted." The Secretary denied the Request for Reconsideration.²  In the notice of denial, the Secretary refused to open the earlier claim on the ground that the facts remained unchanged and the previous decision was correct. The Secretary had determined when Rogerson's earlier claim was denied that she was not disabled at any time on or before December 31, 1978, the date she was last insured for disability benefits.

Rogerson requested a hearing on the third denial. The ALJ dismissed the Request for a Hearing. In his opinion, the ALJ made clear that the third application was barred by res judicata and the claimant did not meet the conditions required for reopening either the ALJ decision issued October 21, 1976 (on the 1975 application) or the administrative determination of November 8, 1980.³  The ALJ then found that the request for a hearing on the third application should be dismissed pursuant to 20 C.F.R. 404.957(c) (1) on the ground of administrative res judicata; the denials of the 1975 and 1980 applications were both given res judicata effect.⁴ 

Rogerson requested review of the dismissal and submitted additional documentation of her current claims. The Appeals Council, affirming the ALJ's dismissal of Rogerson's hearing request, wrote: "... the additional evidence sheds no further light on your condition prior to December 31, 1978, the date you last meet the disability insured status requirements of the Social Security Act." Administrative Record, Tr. at 2. This dismissal of the hearing request was the final action of the Secretary.

On August 27, 1986, Rogerson filed a complaint seeking review of the Secretary's denial of the request for reconsideration and an order compelling the Secretary to reinstate her hearing request. The Secretary moved to dismiss the complaint for (1) failure to state a claim upon which relief can be granted, Fed. R. Civ. P. 12(b) (6); and (2) lack of subject matter jurisdiction to review the Secretary's denial of Rogerson's request for a hearing. Fed. R. Civ. P. 12(b) (1).

The district court held that it had jurisdiction to review the Secretary's denial of a hearing because Rogerson's claim the Secretary violated her due process rights by improperly applying res judicata presented a "colorable constitutional challenge to the Secretary's decision." Rogerson v. Secretary of Health and Human Services, No. 86-3354, Slip Op. (D.N.J. June 17, 1987, Brotman, J.). The court found that the Secretary wrongly applied the doctrine of administrative res judicata because the 1980 administrative determination should not have been considered a prior determination for res judicata purposes. But the court then found that the only issue raised in 1985 not previously addressed in 1976 was Rogerson's claim of arthritis with an onset date of April, 1975 and that no evidence of arthritis prior to December, 1978 had been submitted. The trial court concluded that plaintiff had not been entitled to benefits on the 1985 application and the ALJ had correctly refused to reopen Rogerson's prior claims.

Rogerson contends that the lower court's finding that the 1980 application did not have res judicata effect created an unadjudicated period so that Rogerson's claims required remand for that adjudication. Rogerson argues that the 1980 application should be regarded as never having been filed. This would create an "unadjudicated period" between October 21, 1976 (when there was a final decision on Rogerson's first application that she was not disabled) and December 31, 1978 (the date for which Rogerson is last insured). Rogerson asserts that the lower court incorrectly gave the first (1975) application res judicata effect because the third (1985) application raises facts and issues never raised in the 1975 application.

The Secretary has not cross-appealed but defends the district court's dismissal on the ground that the first (1975) and second (1980) application did have res judicata effect. The Secretary also argues that the 1975, 1980, and 1985 applications are the same and the Social Security Administration should not be forced to adjudicate and then readjudicate claims.

Title 42 U.S.C. § 405(g) provides in part:

Any individual, after any final decision of the Secretary made after a hearing to which he was a party ... may obtain a review of such decision by a civil action....

A district court does not have statutory jurisdiction under Sec. 405(g) to review the Secretary's refusal to reopen a claim for benefits when made by the Secretary without a hearing. If there has been no hearing, there is jurisdiction to challenge the Secretary's decision only when a colorable constitutional issue is presented. Califano v. Sanders, 430 U.S. 99, 109, 97 S. Ct. 980, 986, 51 L. Ed. 2d 192 (1977).

In Penner v. Schweiker, 701 F.2d 256 (3d Cir. 1983), failure to provide the claimant with adequate notice of an adverse decision constituted a denial of due process of law sufficient to give the district court jurisdiction to remand to the Secretary for reconsideration. In Parker v. Califano, 644 F.2d 1199 (6th Cir. 1981), the claimant did not have the mental ability to understand and comply with the notice of further administrative procedures following the denial of her application; the lack of meaningful notice was a denial of due process that gave the district court jurisdiction to remand to the Secretary. See also Shrader v. Harris, 631 F.2d 297 (4th Cir. 1980).

Here, the district court found that it had jurisdiction to review Rogerson's third (1985) application because her allegations of improper application of res judicata raised a due process claim. The court agreed with the plaintiff that the denial of her second (1980) application for benefits should not have had res judicata effect because it did not meet the statutory requirements for a determination. Title 42 U.S.C. § 405(b) (1) provides:

Any such decision by the Secretary which involves a determination of disability and which is in whole or in part unfavorable to such individual shall contain a statement of the case, in understandable language, setting forth a discussion of the evidence, and stating the Secretary's determination and the reason or reasons upon which it is based.

The Secretary's 1980 statement of denial expressly referred to: the Disability Interview of September 30, 1980; a report of Dr. Berger dated March 12, 1976; and a Wilmington Medical Center report dated February 17, 1979. Dr. Berger's report concerned the period judicially settled, and the 1979 hospital report did not establish a disabling condition prior to the expiration of insured status in 1978. The Secretary stated:

This is a 56 year old female alleging a disability, medical evidence shows the claimant has been treated in the past, there is, however, no evidence to substantiate a severe disabling condition during her insured status with quarter of coverage last met 12/31/78 disability is therefore denied.

Administrative Record, Tr. at 215.

In Domozik v. Cohen, 413 F.2d 5 (3d Cir. 1969), this court gave res judicata effect to a determination that stated:

After studying all the facts in your case and the medical evidence, and considering your statements, age, education, and experience, we find that your condition was not disabling within the meaning of the law on December 9, 1955, (the date you state you became unable to work), or any later date through December 31, 1959. This is the last day on which you still met the earnings requirement.

Id. at 6.

The determination under consideration here is at least as informative as that upheld in Domozik.

However, even if the Secretary's denial did not adequately discuss the evidence or give reasons, unlike the claimants in Penner and Parker, Rogerson received sufficient notice of the denial to pursue the remedies available to her. Rogerson had personal familiarity and experience with the options available for reconsideration, and administrative and judicial review. In these circumstances, the degree of detail in the denial notice was adequate to protect her due process rights. If the 1980 determination was procedurally insufficient or substantively wrong, Rogerson's remedy was to appeal it; Rogerson offered no evidence of an inability to do so. When Rogerson did not timely pursue her administrative remedies, the second (1980) determination became final unless reopened. There was no impediment to its consideration in regard to the third (1985) application and no constitutional denial of due process in doing so.

The fact that Rogerson did not pursue her administrative remedies by contesting the denial of her second (1980) application does not render that denial meaningless upon consideration of her third (1985) application or make the application of res judicata to her third (1985) application a denial of due process.⁵  Application of administrative res judicata in the absence of a hearing on the prior claim was expressly upheld in Domozik. Cf. Dealy v. Heckler, 616 F. Supp. 880 (D.C.Mo.1984); Delameter v. Schweiker, 721 F.2d 50 (2d Cir. 1983). There has been no denial of constitutional rights.

Rogerson's claims in her third (1985) application are essentially identical to those made in her prior claims so that the application of res judicata without a hearing does not violate her right to due process of law. In Stauffer v. Califano, 693 F.2d 306 (3d Cir. 1982), claimant argued that dismissal of his claims on the grounds of res judicata without a hearing was a denial of due process sufficient to confer jurisdiction to review the agency action. This court found that there was no denial of due process and res judicata had been properly applied:

Our review of the magistrate's report shows that examination of Stauffer's due process claim was a necessary component of her ultimate conclusion that the application of res judicata was not an abuse of discretion. Stauffer received a full and fair hearing on his initial claim and, because his second claim effectively restated the first, it was not a due process violation to deny a second hearing.

Stauffer, 693 F.2d at 308.

Rogerson contends that because the district court did not review the entire record, that court could not properly determine whether the current claim is the same as the prior claims. Whether or not Califano v. Sanders permits review of the entire record to determine if res judicata was properly applied, but see, Stauffer, 693 F.2d at 308, McGowen v. Harris, 666 F.2d 60, 65 (4th Cir. 1981), we have done so and agree with the district court that Rogerson's 1985 claim is essentially the same as her second (1980) application that was administratively denied for lack of evidence substantiating a severe disabling condition during the period of her insured status.

The only difference between the current application and those previously filed is the allegation that the arthritis Rogerson reported in 1980⁶  has been severe since April, 1975. While the medical documentation Rogerson now seeks to offer shows that she has suffered from arthritis as early as 1981, her period of coverage terminated no later than December 31, 1978; medical reports of record pertaining to the relevant time period make no mention of arthritis. Because Rogerson's claims in her third (1985) application are essentially identical to those made in her prior claims, the application of res judicata without a hearing does not violate her right to due process of law.

For the foregoing reasons, we find that the district court did not have jurisdiction to review the Secretary's denial of disability benefits without hearing. The district court's dismissal of the complaint will be affirmed.