Baxter v. Schweiker

• Decision Date: 07 May 1982
• Docket Number: Civ. A. No. C80-35A.
• Citation: 538 F. Supp. 343
• Parties: Ovis Ray BAXTER, Plaintiff, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Northern District of Georgia

538 F. Supp. 343

Ovis Ray BAXTER, Plaintiff, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant.

Civ. A. No. C80-35A.

United States District Court, N. D. Georgia, Atlanta Division.

May 7, 1982.

COPYRIGHT MATERIAL OMITTED

Ovis Ray Baxter, pro se.

Lawrence E. Gill, Asst. U. S. Atty., Atlanta, Ga., for defendant.

ORDER

ROBERT H. HALL, District Judge.

I. INTRODUCTION

The plaintiff, Ovis Ray Baxter, brought this action to obtain judicial review of a final decision of the Secretary of Health and Human Services ("the Secretary") which denied the plaintiff's claim for a period of disability and disability insurance benefits ("the Title II claims") and supplemental security income ("SSI" or "the Title XVI claim") under sections 216(i), 223, and 1614(a)(3) of the Social Security Act ("the Act"), 42 U.S.C.A. §§ 416(i), 423, and 1382c(a)(3) (West 1974 & Supp. 1975-1980). The decision at issue was made by the Appeals Council on November 12, 1980, when it adopted a recommended decision of Administrative Law Judge ("ALJ") Rothbloom, denying the plaintiff benefits under both Titles II and XVI.

The plaintiff is 54 years old, and completed the sixth grade. (Tr. 12). He last worked in 1972. (Tr. 88). His work experience includes loading tractor-trailers, servicing appliances, and curing hams. The plaintiff alleges that he suffers from numerous disabling problems, including arthritis of the shoulders, legs and hands; shortness of breath even when engaged in only light exercise; difficulty lifting; and difficulty standing or sitting in excess of thirty minutes. The plaintiff also alleges that he has undergone throat surgery on two occasions and had a portion of his vocal chords removed, resulting in difficult speaking; that he has had ulcer and stomach problems; and that he has been taking medication for a nervous condition since 1974.

The plaintiff argues that the ALJ's decision denying him benefits is not supported by substantial evidence.

II. JURISDICTION AND STANDARD OF REVIEW

As a preliminary matter, the court notes that the plaintiff's complaint predicates jurisdiction on section 205(g) of the Social Security Act, 42 U.S.C.A. 405(g) (West 1974 & Supp. 1981) and section 10 of the Administrative Procedure Act, 5 U.S.C. 706 (1976). The Supreme Court has ruled that the Administrative Procedure Act does not provide an independent grant of subject matter jurisdiction to review claims under the Social Security Act, Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). Thus, the court agrees with the defendant that the court's jurisdiction over claims such as those here must be based solely on the provisions of the Social Security Act, 42 U.S.C.A. 405(g) (West 1974 & Supp. 1981) and 42 U.S.C.A. 1383(c)(3) (West 1974 & Supp. 1975-1980). See Ellis v. Schweiker, 662 F.2d 419 (5th Cir. 1981).

The court's function in reviewing the final decision of the Secretary is not to try the case de novo or to reweigh the evidence, but rather to determine whether there is substantial evidence in the record considered as a whole to support the Secretary's findings, and whether the proper legal standards were applied to the fact-finding process. The Secretary's findings must be sustained if supported by substantial evidence and proper legal standards were applied. 42 U.S.C.A. § 405(g) (West 1974 & Supp. 1981); Gaultney v. Weinberger, 505 F.2d 943 (5th Cir. 1974); Rivas v. Weinberger, 475 F.2d 255 (5th Cir. 1973). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and must be enough to justify a refusal to direct a verdict were the case before a jury. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Breaux v. Finch, 421 F.2d 687 (5th Cir. 1970).

In order to qualify for disability and SSI payments based upon disability, a plaintiff has the burden of producing sufficient evidence, medical or otherwise, to show that he was under a "disability" within the meaning of the Social Security Act. Kirkland v. Weinberger, 480 F.2d 46 (5th Cir. 1973); Hart v. Finch, 440 F.2d 1340 (5th Cir. 1971). An individual is considered to be disabled if he is unable to "engage in substantial gainful activity by reason of any medically determinable physical or mental impairment which could be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1) (1976). Moreover, the impairment must result from anatomical, physiological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques and must be of such severity that claimant is not only unable to do his previous work but cannot, considering his age, education, and work experience engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 42 U.S.C. §§ 423(d)(2), (3), 1382c(a)(3)(B), (C) (1976).

Because the plaintiff's Title II and Title XVI claims are based on separate periods of eligibility, and therefore on separate evidence, they will be individually reviewed.

III. DISABILITY CLAIMS UNDER TITLE II

Section 205(g) of the Social Security Act authorizes federal judicial review of "any final decision of the Secretary made after a hearing to which the claimant was a party...." The history of the plaintiff's benefits claims, revealed on the face of the record, indicates that the plaintiff has received not one, but two hearings¹ and two "final decisions" on his Title II claims. The 1980 decision now before the court is the second of these decisions. The Secretary does not contend that the decision on the first hearing raises any bar to a review of the decision on the second hearing, and he has confined himself, as did the ALJ, to the inquiry of whether there was substantial evidence for the ALJ's findings of fact.

However, even though the parties have not addressed the issue, there is an important question as to the proper scope of the court's review of the most recent hearing and decision in light of the res judicata effects of the findings of fact established in the prior hearing and "final decision." More particularly, this record presents the issue of how courts should treat a claimant who receives an adverse ruling on a claim, but fails either to exhaust his administrative remedies and seek court review, or to petition to reopen his case pursuant to 20 C.F.R. § 404.987 (1981), and instead, refiles a similar, perhaps identical claim, pursuing it through a second hearing to judicial review without a challenge by the Secretary on res judicata grounds.

Section 205(h) of the Social Security Act, 42 U.S.C.A. § 405(h) (West Supp. 1981), states in pertinent part that:

"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...."

The review referred to in § 205(h) as "herein provided" is that described in section 205(g) of the Act, authorizing judicial review only if a claimant commences an action in a district court within sixty days, or such further time as the Secretary may allow, after exhaustion of administrative remedies and mailing of the notice of the Secretary's final decision to the claimant. The Secretary has established a sequential procedure providing for several levels of determinations and review of each claim. A determination becomes the Secretary's "final decision" when the claimant either exhausts or abandons the administrative process. See 20 C.F.R. § 404.900 et seq. (1981).²

Under ordinary circumstances, the Secretary has retained the sixty day period after mailing of a final decision notice as the period during which a claimant may seek judicial review. 20 C.F.R. §§ 404.981, 404.982 (1981). Nonetheless, even if a claimant does not seek judicial review, or the review is adverse, the Secretary allows a claimant the opportunity to reopen his claim. 20 C.F.R. § 404.987 (1981). A claim may be reopened: (a) within twelve months of the notice of determination for any reason; (b) within four years of the date of notice for good cause; and (c) at any time if any of nine special circumstances, such as fraud or clerical error, affected the original determination.

Despite, or perhaps because of, the many levels of review prior to a final decision, and the opportunities to reopen a case after a final decision, the finality principles of section 205(h) are especially important. These principles are incorporated, in part, in a regulation of the Secretary, 20 C.F.R. § 404.957(c)(1) (1981), which empowers an ALJ to dismiss a request for a hearing on the basis of res judicata. Regulation 404.957 does not, however, command dismissal of a second hearing when res judicata principles could apply. It merely states that "an administrative law judge may dismiss a request for hearing ... on res judicata grounds...." The discretion given to an ALJ in determining whether to grant a requested hearing is appropriate because the record may not clearly reveal whether a claimant's second application for Title II benefits is identical to his first claim in all regards, for example, whether both claims are based on the same eligibility period.

If a hearing request is granted, however, and the existence of a prior decision and the identity of claims is established, there is considerable doubt as to the power of the ALJ, the Appeals Council, or a reviewing court to modify the decision in the prior hearing absent the grant of a petition to reopen. See Wilson v. Califano, 580 F.2d 208, 210 (6th Cir. 1978) (once decision becomes final, even if not reviewed by district court, it may not be reviewed by a district court as part of its review of a subsequent...