Wayne H. Gardner, Plaintiff-appellant, v. Secretary of Health and Human Services, Defendant-appellee, 972 F.2d 347 (6th Cir. 1992)

Before BOYCE F. MARTIN and SILER, Circuit Judges, and CLELAND, District Judge.^* 

ORDER

Wayne H. Gardner, a pro se Tennessee citizen, appeals the district court's order affirming the Secretary's decision to deny Gardner disability benefits. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

In August 1987, Gardner filed an application for disability benefits, alleging that he was disabled due to alcoholism, emotional problems, and residuals from a vehicular accident. In September 1988, the ALJ determined that Gardner was not disabled prior to his date last insured on December 31, 1987. Gardner sought judicial review of this decision and the district court affirmed the Secretary's determination. Gardner did not appeal the district court's decision.

Gardner then filed the instant application for disability benefits alleging the same onset date as his first application and essentially the same impairments. The ALJ denied Gardner's request for a hearing and dismissed his application. The ALJ determined that the hearing request involved Gardner's same rights on the same facts and issues that were decided in the previous application. Although Gardner had submitted new evidence, the evidence was not material as it pertained only to the current period (following the expiration of Gardner's insured status) or was merely cumulative of the evidence in the record at the time of the previous decision. The Appeals Council denied Gardner's request for further review.

Gardner then sought judicial review of the Secretary's decision. The magistrate judge recommended dismissing Gardner's case because the Secretary had properly denied him benefits on the basis of administrative res judicata. Gardner did not file objections to the magistrate judge's report and recommendation. The district court subsequently adopted the report and recommendation and dismissed the case. Gardner has filed a timely appeal.

Initially, we note that Gardner did not file objections to the magistrate judge's report and recommendation. Consequently, Gardner has waived his right to appeal the district court's decision. See Howard v. Secretary of Health and Human Services, 932 F.2d 505, 508 (6th Cir. 1991).

Nonetheless, we determine that the Secretary properly concluded that Gardner's application is barred by the doctrine of administrative res judicata. See Carver v. Secretary of Health and Human Services, 869 F.2d 289, 291-92 (6th Cir. 1989).

Accordingly, we affirm the judgment for the reasons set forth in the magistrate judge's report and recommendation filed on December 17, 1991, as adopted by the district court in its order filed on December 31, 1991. Rule 9(b) (3), Rules of the Sixth Circuit.