Davis v. Richardson, 71-1487.

• Citation: 460 F.2d 772
• Decision Date: 09 May 1972
• Docket Number: No. 71-1487.,71-1487.
• Parties: Leilla DAVIS, Plaintiff-Appellant, v. Elliot L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Third Circuit

460 F.2d 772 (1972)

Leilla DAVIS, Plaintiff-Appellant, v. Elliot L. RICHARDSON, Secretary of Health, Education and Welfare, Defendant-Appellee.

No. 71-1487.

United States Court of Appeals, Third Circuit.

Argued April 13, 1972.

Decided May 9, 1972.

Jonathan M. Stein, Community Legal Service, Philadelphia, Pa., for plaintiff-appellant.

Greer S. Goldman, Dept. of Justice, Civil Div., Washington, D. C., for defendant-appellee.

Before McLAUGHLIN, VAN DUSEN and ALDISERT, Circuit Judges.

OPINION OF THE COURT

PER CURIAM:

This appeal is from the decision of the district court which upheld the validity of the application by the Secretary of the doctrine of res judicata to the 1966 decision of the examiner.

Plaintiff originally filed for disability benefits on the basis of a heart condition and diabetes in 1959 at age 37. Her claim was denied initially and after reconsideration, because her purported illnesses did not meet the disability standard, viz. "so severely impaired as to be unable to do any substantial gainful work." She made second and third applications in 1961 and 1965, submitting practically the same facts. These included some medical evidence, but nothing which asserted that Miss Davis was unable to work. Accordingly the applications were denied.

Appellant was advised by the Board that to obtain benefits her disability must have existed on or before June 30, 1962 which was when she had last met the earnings requirement. She was also told of her right to a hearing; that she could present additional evidence; and that she could bring her representative and witnesses if she did so within six months of that notice. Plaintiff requested such hearing and filled out the requisite form with the aid of a Social Security claims assistant. She did not have counsel, and with the representative checking off the appropriate boxes, she was deemed to have waived her right to appear and to give evidence. A decision was thus reached on February 28, 1966 on the same evidence which had been before the agency for some time, and it was once more decided that appellant was not suffering from such disability as the Social Security Act insisted in order to obtain benefits. She was notified of her right to appeal but failed to do so within the sixty day limit. Two years later, with no additional evidence, she attempted to appeal but the Appeals Council would not accept it, saying that she had failed to show good cause as defined in 20 C.F.R. 404.958, for filing beyond the sixty day limit. A fourth application for benefits was filed on May 27, 1968 with no new evidence and was therefore denied.

Finally, on October 15, 1968, plaintiff, represented by counsel, requested a hearing, claiming new evidence which should have been examined in order to obtain a correct decision. On January 23, 1969 the hearing was held. Here the examiner acknowledged that a psychosomatic basis to the illness would support a claim for disability payments, but only if supported by verified medical diagnosis. No new diagnosis of anything similar was offered in evidence other than plaintiff's own statements that she had experienced pain. The examiner concluded that the findings of the 1966 hearing stand as res judicata.

Plaintiff requested review by the Appeals Council, though she did not offer any further evidence. The Council on April 10, 1969 upheld the examiner, saying that his dismissal of the claim was proper and that the 1966 decision was dispositive. The district court action on June 6, 1969, followed. There plaintiff alleged that the 1966 decision was not res judicata because it denied plaintiff due process and equal protection under the Fifth Amendment, also of rights to a hearing under the Social Security Act, 42 U.S.C. § 405(b). It was further argued that there had been no knowing and intelligent waiver of appearance and that claimant had been denied the right to counsel. The district court dismissed all of those contentions on the above mentioned res judicata grounds. The latter, which govern the situation before us, are found in 20 C.F.R. 404.937 which reads:

"hearing examiner may, on his own motion, dismiss a hearing request, either entirely or as to any stated issue, under any of the following circumstances: (a) Res judicata.—Where there has been a previous decision by the Secretary with respect to the rights of the same party on the same facts pertinent to the same issue or issues which has become final either by judicial affirmance or, without judicial consideration, upon the claimant\'s failure timely to request reconsideration, hearing, or review, or to commence a civil action with respect to such determination or decision."

Appellant urges that the 1966 hearing did not rightly include the res judicata determination because at that hearing though she did not appear in person, she had no intention of waiving that right, and also because she was without counsel at the hearing, which factors she feels,...