Unpublished Disposition, 880 F.2d 416 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 880 F.2d 416 (9th Cir. 1989)

Donna R. STAHL, Plaintiff-Appellant,v.Otis R. BOWEN, Secretary of Health and Human Services,Defendant-Appellee.

No. 87-3846.

United States Court of Appeals, Ninth Circuit.

Submitted*  April 19, 1989.Decided July 17, 1989.

Before JAMES R. BROWNING, FARRIS and WILLIAM A. NORRIS, Circuit Judges.


MEMORANDUM** 

Appellant Donna R. Stahl contends that the district court erred in determining that the Secretary's decision declining to reopen her prior claims for disability insurance benefits was not a "final decision" subject to judicial review. This contention lacks merit.

* A claimant applies for disability benefits by filing a claim with the Social Security Administration. 20 C.F.R. Secs. 404.905-404.907 (1986). If the claim is administratively denied, regulations permit administrative reconsideration within six months. Secs. 404.909-404.915 (1986); Califano v. Sanders, 430 U.S. 99, 101 (1977). If the request for reconsideration is denied, the claimant may, within 60 days, request an evidentiary hearing before an administrative law judge. 42 U.S.C. § 405(b); Califano, 430 U.S. at 101. A discretionary appeal from an adverse determination of the law judge lies to the Appeals Council. 20 C.F.R. Secs. 404.945-404.947 (1986); Califano, 430 U.S. at 101-02. Section 205(g) of the Act authorizes federal judicial review of "any final decision of the Secretary made after a hearing to which [the claimant] was a party...." 42 U.S.C. § 405(g); id.

The principle of res judicata applies to findings and decisions on the merits which become final as a result of a claimant's failure to seek administrative review after notice of an adverse decision. Stuckey v. Weinberger, 488 F.2d 904, 909-11 (9th Cir. 1973). Although regulations permit reopening of prior factual determinations, see 20 C.F.R. Secs. 404.988-404.989 (1986), once a decision becomes administratively final, the Secretary's decision to reopen a prior determination is discretionary. Taylor v. Heckler, 765 F.2d 872, 877 (9th Cir. 1985) (citing Davis v. Schweiker, 665 F.2d 934, 935 (9th Cir. 1982)); 20 C.F.R. Sec. 404.987(a). Discretionary decisions are not "final decisions" within the meaning of the Social Security Act, Sec. 205(g), 42 U.S.C. § 405(g). Taylor, 765 F.2d at 877 (citing Davis, 665 F.2d at 935). District courts, therefore, have no jurisdiction to review a refusal to reopen a claim for disability benefits or a determination that such a claim is res judicata because that decision is not final. See Califano, 430 U.S. at 107-09.

Exceptions to the jurisdictional rule of Califano v. Sanders are discussed in McGowen v. Harris, 666 F.2d 60 (4th Cir. 1981). See Krumpelman v. Heckler, 767 F.2d 586, 588 (9th Cir. 1985), cert. denied, 475 U.S. 1025 (1986). Jurisdiction may be present where administrative res judicata was not properly applied, or where the denied claim is found to have been reopened either formally or by legal implication. McGowen, 666 F.2d at 66. McGowen established a two prong test to review the Secretary's dismissal of a claim based on res judicata:

First, the district court has the jurisdiction to determine, and should determine, whether the claim precluded is the same as the claim previously determined. Second, ... whether ... the Secretary in fact reopened the claim in its consideration of the res judicata determination.

Krumpelman, 767 F.2d at 588-89. When a "discussion of the merits is followed by a specific conclusion that the claim is denied on res judicata grounds, the decision should not be interpreted as reopening the claim and is therefore not reviewable." Id. at 589; cf. Taylor for Peck v. Harris, 738 F.2d 1112, 1115 (10th Cir. 1984) (court held that the ALJ did reopen a prior claim when there was a lack of a specific ruling based on res judicata and when the ALJ did not specifically decline to reopen the prior claims).

Here, in dismissing Stahl's claim based upon res judicata principles, the ALJ concluded that " [T]he totality of the evidence does not establish new and material evidence such as would warrant the reopening of the prior adjudications of denial nor substantiate a finding that the claimant was disabled on or before the date the insured status expired." Stahl concedes that generally, the Secretary's decision not to reopen prior claims is not a final decision within the meaning of 42 U.S.C. § 405(g) and is not subject to judicial review. Stahl argues, however, that because the ALJ reviewed all of the medical evidence and made a finding that she was not disabled, he considered her claims on the merits. Stahl further argues that this constituted a de facto reopening of her claims thereby allowing for judicial review.

Stahl's case is strikingly similar to Krumpelman v. Heckler, 767 F.2d 586 (9th Cir. 1985), cert. denied, 475 U.S. 1025 (1986). Krumpelman appealed a district court's decision that it lacked jurisdiction to review the Secretary's refusal to reopen a prior final determination denying disability. Id. at 588. Krumpelman claimed that his case fit within the exceptions to the jurisdictional rule of Califano v. Sanders as discussed in McGowan v. Harris, 666 F.2d 60 (4th Cir. 1981). Id. However, the Ninth Circuit held that Krumpelman was distinguishable from both McGowan and Taylor because the ALJ explicitly found the evidence insufficient to warrant reopening Krumpelman's claim and explicitly declined to reopen the claim. Id. at 589.

The language which this court relied on to distinguish Krumpelman from McGowen and Taylor is identical to the language used by the ALJ to dismiss Stahl's claim. The ALJ expressly found no new evidence in Stahl's case which would warrant reopening the claim, explicitly declined to reopen her claim after discussing all of the evidence before him, and ordered Stahl's claim dismissed on res judicata grounds. Therefore, the district court properly dismissed Stahl's action for lack of jurisdiction. See Krumpelman, 767 F.2d at 589.1 

II

Stahl further contends that res judicata should not be applied to her case because the initial denials were not the result of adjudicative hearings. This contention lacks merit.

After Stahl's claims were initially denied, she had the right to seek reconsideration within 60 days after the date she received notice of the decision. 20 C.F.R. Sec. 404.909; Taylor v. Heckler, 765 F.2d 872, 876 (9th Cir. 1985). Since Stahl did not request reconsideration, the initial determination became a final decision of the Secretary. 20 C.F.R. Sec. 404.905. Id. The previous findings are now binding on both Stahl and the Secretary under res judicata. See 42 U.S.C. § 405(h);2  Miller v. Heckler, 770 F.2d 845, 848 (9th Cir. 1985) (citations omitted). "Administrative res judicata may apply even though the claimant has never had a hearing, where the claimant has failed to pursue his administrative appeals and no new facts are presented in the subsequent application." Thompson v. Schweiker, 665 F.2d 936, 940 (9th Cir. 1982). Stahl's argument must fail in light of this authority.3 

The judgment of the district court is AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3

 1

Stahl asserts that the Secretary's finding of non-disability constitutes a de facto reopening of her prior claims, and thus that the Secretary's decision was final. A "final decision" is one which is made by "the Secretary after a hearing to which [the claimant] was a party." 42 U.S.C. § 405(g). A purely discretionary hearing does not confer finality. See Davis v. Schweiker, 665 F.2d 934, 935 (9th Cir. 1982); see also Rios v. Secretary of HEW, 614 F.2d 25, 26 (1st Cir. 1980)

The hearing held by the ALJ in Stahl's case was not a mandatory hearing. Rather, the decision declining to reopen Stahl's prior claims was discretionary, and therefore not subject to judicial review. The ALJ's conclusion that Stahl was not disabled appears to be surplusage, and does not constitute a de facto reopening of Stahl's prior claims.

 2

42 U.S.C. § 405(h) provides, in pertinent part:

Finality of Secretary's Decision

The findings and decision 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 persons, tribunal, or governmental agency, except as herein provided.

 3

Stahl argues on appeal that a constitutional question exists which allows for judicial review. She makes conclusory allegations claiming that the application of res judicata to the previous decisions denies her due process of law. Because Stahl failed to raise this argument in the district court, we do not address it on appeal. See Guillory v. County of Orange, 731 F.2d 1379, 1383 (9th Cir. 1984)