Brinker v. Weinberger

• Decision Date: 03 September 1975
• Docket Number: No. 75-1130,75-1130
• Citation: 522 F.2d 13
• Parties: Vernon BRINKER, Appellant, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 13

522 F.2d 13

Vernon BRINKER, Appellant, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Appellee.

No. 75-1130.

United States Court of Appeals Eighth Circuit.

Submitted June 13, 1975.

Decided Sept. 3, 1975.

Arnold M. Bellis, St. Paul, Minn., for appellant.

Daniel M. Scott, Asst. U. S. Atty., Minneapolis, Minn., for appellee.

Before LAY, HEANEY and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

This action was instigated by Vernon Brinker pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), for judicial review of the Social Security Administration's decision disallowing his claim for a period of disability as defined by section 216(i), and for disability insurance benefits under section 223, 42 U.S.C. §§ 416(i) and 423. Following the claimant's exhaustion of his administrative remedies, including a hearing before an administrative law judge and an adverse decision from the Appeals Council, the decision by the Secretary of Health, Education and Welfare was reviewed by the district court, ¹ which granted the Secretary's motion for summary judgment. That court held that the findings of the Secretary were supported by substantial evidence in the record and conclusive. We reverse and remand to the district court with instructions to enter summary judgment in favor of Brinker.

Brinker claims that he suffers from back injuries incurred on May 22, 1969, and September 29, 1969, during this employment as a truck driver at Macalester College. These back injuries allegedly prevent him from engaging in gainful employment since exertion or movement increases the intensity of his back pains. The administrative law judge, whose findings were adopted by the Appeals Council, found that Brinker was not suffering from a disability as that word is defined in section 223 of the Social Security Act. Since Brinker challenges this finding, the central issue is whether or not he has a disability as statutorily defined. ²

A threshold issue to be considered is whether the doctrine of res judicata bars consideration of Brinker's application for disability insurance benefits. Brinker filed an initial application for benefits on April 15, 1970, but the Director of the Bureau of Disability Insurance declared that Brinker was not entitled to benefits because he did not meet the statutory requirements. Although the letter also advised Brinker that he had six months to file a request for reconsideration, he failed to do so. Brinker did file, however, a second application for disability insurance benefits on April 16, 1971. At a hearing on this second application, the administrative law judge specifically found that the prior administrative determination on June 15, 1970, was res judicata. ³

Brinker contends that the reopening regulation of the Social Security Act ⁴ rather than res judicata is properly applicable to his second application for benefits. The Secretary, however, asserts that the administrative law judge acted within his discretion in giving the initial determination res judicata effect since Brinker failed to request reconsideration of that decision within the required six month period. ⁵ Moreover, the Secretary advocates only a showing of "good cause" could justify invocation of the reopening regulation. In this regard, the administrative law judge found that "good cause" had not been established.

Although application of the doctrine of res judicata to administrative decisions serves a useful purpose in preventing relitigation, it is not applied with the same rigidity as its judicial counterpart. United States v. Smith, 482 F.2d 1120, 1123 (8th Cir. 1973). Moreover, Grose v. Cohen, 406 F.2d 823, 825 (4th Cir. 1969), recognized that "practical reasons may exist for refusing to apply it." The existence of the reopening regulation indicates that it is undesirable to attribute finality to every administrative decision. 20 C.F.R. § 404.957.

The Social Security Regulations clearly provide that an initial determination may be reopened within twelve months from the date of the notice of the initial decision. 20 C.F.R. § 404.957(a). Since Brinker did file a second application within the necessary time period, his application for disability benefits was subject to being reopened. The doctrine of res judicata, therefore, is inapplicable to the instant case. See Leviner v. Richardson, 443 F.2d 1338, 1342 (4th Cir. 1971). Both the administrative law judge and the district court incorrectly required a showing of "good cause" since that showing is only necessary for a reopening after twelve months. See20 C.F.R. § 404.957(b).

Furthermore, it is immaterial that Brinker's second application was framed as a new application rather than a petition to reopen. In Leviner v. Richardson, supra, 443 F.2d at 1342, the court emphasized that the reopening regulation

also serves to identify decisions that should not be interposed to deny subsequent applications. A decision that is subject to being reopened provides an inappropriate bar.

Id. The dictates of equity and fundamental fairness that allow a decision to be reopened preclude use of the same decision as a foundation for res judicata. See Grose v. Cohen, supra, 406 F.2d at 825. ⁶

The fundamental issue to be considered in this case is whether there is substantial evidence in the record as a whole to support the administrative law judge's finding that Brinker was not suffering from a disability as that word is defined in section 223(d) of the Social Security Act. 42 U.S.C. § 423(d). Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), quoting from Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). In making this inquiry, we should neither consider a claim de novo nor abdicate our function to carefully analyze the entire record in conducting a review. Yawitz v. Weinberger, 498 F.2d 956, 957 (8th Cir. 1974).

Brinker was born in 1921. After completing the eighth grade, he worked as a farmer on his father's farm. From 1942 through 1946, he served in the air force as a gunner and afterwards worked as a crane operator. He also operated as a self-employed truck driver from 1955 through 1960 and finally went to work at Macalester College in 1960, where he was employed at the time of the accidents causing his injury. Following the accidents, Brinker attempted to continue working while undergoing medical treatment. He claims, however, that his back pain became so painful that he could no longer work after October 21, 1969.

In October 1969 he began receiving medical treatment from Dr. Ivan Schloff, an orthopedic surgeon. Dr. Schloff diagnosed Brinker's condition as a degenerative disc disease of the lumbar spine with exacerbation, and a plaster body cast was applied. The body cast seemed to reduce his pain, and the cast was later replaced by a back brace. On February 4, 1970, he returned to work at Macalester College at a job involving lighter work with specific limitations on bending and lifting. After resuming work, however, Brinker claims that he experienced increased pain.

Brinker was eventually hospitalized on February 25, 1970, for aggravation of his lumbo sacral strain. After his release from the hospital, he realized some temporary improvement, but was later readmitted for a discogram. The findings at this time showed both protruding discs and a degenerated disc. Consequently, he was readmitted to the hospital on June 16, 1970, and placed in a hip cast for two weeks. After the removal of the cast, Dr. Schloff expressed the opinion that Brinker could never return to his former job nor any other job requiring lifting and bending. Furthermore, Dr. Schloff estimated that Brinker had a 25% Permanent partial disability of the spine as a result of the accidents.

During 1970 Brinker underwent psychological and vocational evaluation at the State of Minnesota Department of Education, Division of Vocational Rehabilitation (DVR). The generally unencouraging test results relating to retraining and placement, however, ultimately resulted in the issuance of a DVR report that Brinker was "unemployable" because he had to wear a back brace, his education was minimal, he lacked special skills, and was experienced only in common labor. ⁷

Generally, a claimant for disability benefits must show a medically established impairment that prevents him from performing any substantial and gainful employment which exists in the national economy for which he is qualified by his age, education and work experience. 42 U.S.C. § 423(d). See Lund v. Weinberger, 520 F.2d 782 at 784 (8th Cir. 1975); Yawitz v. Weinberger, 498 F.2d 956, 959-60 (8th Cir. 1974). This court has repeatedly set out the relevant legal standards for receiving such benefits. See, e. g., Klug v. Weinberger, 514 F.2d 423 at 424 (8th Cir. 1975). As stated in Klug those standards are:

(a) the claimant has the burden of establishing his claim; (b) the Act is remedial and is to be construed liberally; (c) the Secretary's findings and the reasonable inferences drawn from them are conclusive if they are supported by substantial evidence; (d) substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion; (e) it must be based on the record as a whole; (f) the determination of the presence of substantial evidence is to be made on a case-to-case basis; (g) where the evidence is conflicting it is for the Appeals Council on behalf of the Secretary to resolve those conflicts; (h) the statutory definition of disability imposes a three-fold requirement (1) that there be a medically determinable physical or mental impairment which can be expected to (result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months), (2...