Burnett v. Heckler, 85-3023.

• Citation: 625 F. Supp. 831
• Decision Date: 07 January 1986
• Docket Number: No. 85-3023.,85-3023.
• Court: U.S. District Court — Central District of Illinois
• Parties: Rodney BURNETT, Plaintiff, v. Margaret HECKLER, Secretary, Department of Health and Human Services, Defendant.

625 F. Supp. 831

Rodney BURNETT, Plaintiff, v. Margaret HECKLER, Secretary, Department of Health and Human Services, Defendant.

No. 85-3023.

United States District Court, C.D. Illinois, Springfield Division.

January 7, 1986.

COPYRIGHT MATERIAL OMITTED

Costello, Long, Young & Dvorak, Springfield, Ill., for plaintiff.

Gregory K. Harris, Asst. U.S. Atty., Springfield, Ill., for defendant.

OPINION AND ORDER

MILLS, District Judge:

Social security disability claim.

Administrative res adjudicata.

Summary affirmance for DHHS.

Rodney Burnett brought this action against Margaret Heckler, Secretary of Health and Human Services (Secretary), seeking reversal of the Secretary's decision that plaintiff is not entitled to receive Social Security Disability Insurance Benefits between March 22, 1982, and November 15, 1983.¹ Plaintiff invokes 42 U.S.C. § 405(g) as the basis for subject matter jurisdiction over this case. The defendant has moved for summary affirmance of the Secretary's decision. While not stated as such, defendant's motion is essentially a motion to dismiss under Fed.R.Civ.P. 12(b)(1) for lack of subject matter jurisdiction. Because resolution of this issue entails consideration of the procedural history of this case, a detailed factual summary is necessary.²

FACTS AND PROCEDURAL HISTORY

Rodney Burnett, a thirty-eight (38) year old employee of the Firestone Tire and Rubber Co., collapsed at work on March 11, 1982. He did not return to work after this date. It was later determined that Mr. Burnett had suffered a grand mal seizure caused by a very large parsagital meningiomia (tumor) in the left side of his brain. (R. 371). According to Dr. Miller, one of Mr. Burnett's treating physicians, a meningiomia is a benign neoplasm which is treated by surgical excision. Occasionally, however, such tumors can reoccur after incomplete excision. (R. 420). This is what happened in Mr. Burnett's case. He was operated on in April of 1982, and the tumor was removed, but a residual tumor later began to grow back. By June of 1984, the new tumor had grown to a point where its effects on Mr. Burnett were more severe than the initial tumor. As a result of these brain tumors, Mr. Burnett had grand and petit mal seizures and Jacksonian seizures on a regular basis, probably three times a week.³ These seizures became more frequent toward the end of 1983. The medication Mr. Burnett is required to take also has side effects which include somnolence (drowsiness), and ataxia (the inability to coordinate voluntary muscular movements) (R. 421).

On May 12, 1982, plaintiff filed an application for disability insurance benefits, contending that he had been disabled since his collapse at work on March 22. The application was denied initially and upon reconsideration. At plaintiff's request, a hearing was held before Administrative Law Judge (ALJ) Cosentino. In a decision dated May 18, 1983, ALJ Cosentino found that Mr. Burnett was not disabled within the meaning of the Act. This decision became the final decision of the Secretary when the Appeals Council affirmed the denial of plaintiff's application on July 1, 1983. Plaintiff did not appeal the Secretary's final decision to the federal district court.

More than one year later, on August 1, 1983, plaintiff filed a second application for disability insurance benefits. This second application asked for a re-opening of ALJ Cosentino's decision, and alternatively, for the establishment of a later disability date. In support of his request to re-open the initial claim, plaintiff introduced three items of evidence which he contends justified re-opening the case: (1) a notice by the Illinois Department of Rehabilitation Services stating that it was closing Mr. Burnett's case because he was not benefiting from rehabilitation and job placement services; (2) a report by Dr. Miller in which he opines that plaintiff could not work since his first seizure on March 22, 1982, and; (3) evidence that plaintiff continued to have seizures after the Secretary's initial decision.

Again his application was denied both initially and upon reconsideration. This time ALJ Lincoln heard plaintiff's case at a hearing held on July 11, 1984. On July 31, 1984, ALJ Lincoln denied plaintiff's request to re-open ALJ Cosentino's decision, but found, however, that plaintiff was disabled beginning November 13, 1983. In denying plaintiff's request to re-open the first decision, the ALJ held that:

"no new evidence material to the issues resolved in that decision (by ALJ Cosentino) has been submitted. Accordingly, that decision remains final and binding. The issue before the undersigned is thus limited to whether the claimant is entitled to benefits on the basis of disability beginning since May of last year (1983)." (R. 14).

As the Appeals Council affirmed ALJ Lincoln's decision, it stands as a final decision of the Secretary. Plaintiff now seeks review of ALJ Lincoln's determinations: (1) that ALJ Cosentino's decision should not be re-opened; and (2) that plaintiff's disability began on November 13, 1983 rather than in May of 1983. This Court shall consider each question in the order stated above.

I.

As previously mentioned, the initial basis for defendant's Motion For Summary Affirmance is that this Court does not have subject matter jurisdiction under § 405(g) to consider whether ALJ Lincoln should have re-opened the Secretary's first decision. Re-opening of a final decision by the Secretary is provided for in 20 C.F.R. § 404.987 et. seq. The regulation relevant to this case provides, in part, as follows:

A determination, revised determination, or decision may be re-opened—

(a) Within 12 months of the date of the notice of the initial determination, for any reason;

(b) Within 4 years of the date of the notice of the initial determination if we find good cause, as defined in § 404.989, to re-open the case; ... 20 C.F.R. § 404.988.

In addition, 20 C.F.R. § 404.989 states that:

(a) We will find that there is good cause to re-open a determination or decision if -

(1) New and material evidence is furnished; ...

As is apparent from ALJ Lincoln's opinion, the decision to not re-open the earlier case was coupled with a decision that administrative res judicata was applicable, thus barring a subsequent claim on the same cause of action. This is consistent with Judge Shadur's description of the Secretary's determination not to re-open a decision and her determination to apply the doctrine of res judicata to that decision as "companion decisions". See Tolbert v. Secretary, 537 F.Supp. 631, 632 (N.D.Ill. 1982). Such a determination also comports with the Secretary's regulations which state that a decision to apply res judicata must be preceded by a determination that no basis exists for re-opening the earlier decision. 20 C.F.R. § 404.987(b). The reason for this is that without a determination that no basis for re-opening exists, the Secretary's decision is not "final" for res judicata purposes, 20 C.F.R. § 404.957(c); See Hennings v. Heckler, 601 F.Supp. 919, 925-26 (N.D.Ill.1985).

The fundamental issue, therefore, is the recurring question of whether § 405(g) grants a federal district court the power to review the Secretary's application of res judicata to deny a social security claim, and her "companion decision" to not reopen the claim.

Section 405(g) provides, in part, as follows:

Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. (emphasis added)

Further, 42 U.S.C. § 405(h) makes it clear that the Secretary's decisions are not reviewable except as provided in § 405(g). Weinberger v. Salfi, 422 U.S. 749, 756-58, 95 S.Ct. 2457, 2462-63, 45 L.Ed.2d 522 (1975). Cf. Heckler v. Ringer, 466 U.S. 602, 104 S.Ct. 2013, 2021-22, 80 L.Ed.2d 622 (1984) (§ 405(h) requires that § 405(g) be the sole avenue for review of Medicare Act claims).

The leading case in this area is McGowen v. Harris, 666 F.2d 60 (4th Cir.1981). See e.g. Tolbert v. Secretary, 537 F.Supp. at 633 (citing McGowen as controlling). In McGowen, the Fourth Circuit held that the combined effect of § 405(g) and (h) is to establish a power in the Secretary to deny any social security claim on the basis that it has earlier been denied on the merits by a final administrative decision. Further, assuming that the same claim is involved, and unless a constitutional objection to applying res judicata is raised in the district court, the district court is without jurisdiction under § 405(g) to engage in judicial review either of a decision by the Secretary not to re-open the claim, Califano v. Sanders, 430 U.S. 99, 107-09, 97 S.Ct. 980, 985-86, 51 L.Ed.2d 192 (1977); Cf. Watters v. Harris, 656 F.2d 234, 238 (7th Cir.1980) (Appeals Council refusal to consider an untimely request for review here not reviewable by the district court), or to apply administrative res judicata as a bar to it. McGowen, 666 F.2d at 65; Carter v. Heckler, 712 F.2d 137, 142 (5th Cir.1983); Holloway v. Schweiker, 724 F.2d 1102 (4th Cir. 1984).

There are two instances, however, in which jurisdiction to engage in judicial review exists under § 405(g) despite these rules. The first is where the Court determines that res judicata has been applied in bar of a subsequent claim which, properly assessed, is not "the same" claim for res judicata purposes. McGowen, 666 F.2d at 65; Hennings v. Heckler, 601 F.Supp. 919 (N.D.Ill.1985); Tolbert, 537 F.Supp. at 633. In such a situation, the subsequent claim is necessarily a different claim whose merits have never been addressed administratively. Therefore, a court will retain the "jurisdiction to determine its own jurisdiction" by deciding whether res judicata has been...