Thomas H. Mathews, Plaintiff-appellant, v. Elliot L. Richardson, Secretary of Health, Education and Welfare, Defendant-appellee, 442 F.2d 414 (9th Cir. 1971)

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U.S. Court of Appeals for the Ninth Circuit - 442 F.2d 414 (9th Cir. 1971) May 12, 1971
Rehearing Denied June 8, 1971

Thomas H. Mathews, Cardiff-by-the-Sea, Cal., for plaintiff-appellant.

Henry D. Stewart, U. S. Atty., San Diego, Cal., for defendant-appellee.

Before MERRILL, KOELSCH and WRIGHT, Circuit Judges.


Thomas H. Mathews appeals from an order granting summary judgment in favor of the Secretary on his suit under 42 U.S.C. § 405(g) to review the Secretary's decision denying his disability claim. We affirm.

Mathews first filed a disability claim in 1964. The claim was denied by the agency based on a finding that his physical and mental ailments were not sufficiently severe to prevent him from engaging in managerial or clerking employment. On review, the conclusions were found to be supported by substantial evidence by the district court and summary judgment was entered for the Secretary. An appeal to this court was dismissed as untimely.

Mathews then filed his present claim alleging an inability to engage in any substantial gainful activity because of his physical and mental ailments. The second claim was denied by the Hearing Examiner and Appeals Council because no new and material evidence had been presented to warrant a reopening of the previous determination and no evidence had been presented to show a significant deterioration in his condition since the first denial.

On appeal, Mathews' primary attack is on the evidence and findings in the first hearing. However, this he cannot do because those findings are res judicata and therefore final. Myers v. Gardner, 361 F.2d 343, 346 (9th Cir. 1966).

We have reviewed the record as a whole and conclude that the findings of the Hearing Examiner at the second hearing are supported by substantial evidence.