Domozik v. Cohen
Decision Date | 30 June 1969 |
Docket Number | No. 17534.,17534. |
Citation | 413 F.2d 5 |
Parties | Leo J. DOMOZIK, Appellant, v. Wilbur J. COHEN, Secretary of Health, Education and Welfare, United States of America. |
Court | U.S. Court of Appeals — Third Circuit |
W. J. Krencewicz, Shenandoah, Pa., for appellant.
Merna B. Marshall, Asst. U. S. Atty., Philadelphia, Pa. (Drew J. T. O'Keefe, U. S. Atty., on the brief), for appellee.
Before SEITZ, ALDISERT and STAHL, Circuit Judges.
This is an appeal from a grant of summary judgment by the district court, Appellant's Appendix 1(a), in favor of the Secretary of Health, Education and Welfare, appellee, which had the effect of upholding the denial of appellant's claim for disability benefits.
Appellant's application for establishing a period of disability and for disability insurance benefits under the Social Security Act was filed on January 4, 1964, claiming June 10, 1961, as the date of onset of disability. After the Social Security Administration of the Department of Health, Education and Welfare rejected the application in 1966, a hearing was held before a Hearing Examiner who disallowed the claim on April 14, 1967 (TR. 4-10).1 The Appeals Council declined review of the Examiner's decision in September 1967 (TR. 1), and appellant then filed this suit in the court below in accordance with § 205(g) of the Social Security Act, 42 U.S.C. § 405 (g).
The latter requirement is twenty calendar quarters of coverage, i. e., five years, during the ten-year period ending with the quarter in which the claimant becomes disabled.
Appellant did not have the required period of coverage with respect to the claimed June 10, 1961, date of onset of disability. According to appellee the last time appellant met the coverage requirement was December 31, 1959. (TR. 5, 66.)3
Of prime significance to the decision in this case is the fact that in two prior applications appellant had made for disability benefits,4 in which he had claimed 1958 and 1955 dates of disability, it had been determined that his condition was not disabling at any time from 1955 to December 31, 1959. (TR. 66.) These prior applications were rejected by the Chief of the Evaluation and Authorization Branch of the Social Security Administration in a letter dated November 23, 1964, which stated, in pertinent part:
Appellant did not seek any administrative reconsideration of the 1964 denial of his application, either with respect to the absence of disability or the terminal date of his period of coverage,5 within the six-month period. Nor has appellant ever sought to reopen the 1963 and 1964 applications within the four-year period allowed by the Secretary's regulations, 20 C.F.R. §§ 404.956-404.958, where error or other good cause is shown.
In view of appellant's failure to pursue his administrative remedies following the denial of the earlier applications, the Government contends he may not now relitigate the prior findings, relying on 20 C.F.R. §§ 404.908 and 404.937.
The first regulation provides that the "initial determination of the Social Security Administration shall be final and binding upon the party or parties to such determination unless it is reconsidered in accordance with §§ 404.910-404.916, or it is revised in accordance with § 404.956."6
20 C.F.R. § 404.937 states as follows:
We agree with the court below that the foregoing regulations are dispositive of appellant's present application. The administrative "res judicata" regulation was followed in Moore v. Celebrezze, 252 F.Supp. 593 (E.D.Pa.1966), aff'd per curiam, 376 F.2d 850 (3d Cir. 1967), and Phillip v. Ribicoff, 211 F. Supp. 510 (E.D.Pa.1962), aff'd per curiam, 319 F.2d 530 (3d Cir. 1963).7
While it is true that the Hearing Examiner in the instant proceeding did not expressly rely on the "res judicata" regulation, this regulation has been applied by the courts, in conjunction with 20 C. F.R. § 404.908 cited above, to bar relitigation of issues previously resolved by administrative decision. Sangster v. Gardner, 374 F.2d 498 (6th Cir. 1967); Lyall v. Cohen, 297 F.Supp. 606 (W.D. Va.1969); Farley v. Gardner, 276 F. Supp. 270 (S.D.W.Va.1967); Norkey v. Celebrezze, 225 F.Supp. 754 (E.D.Pa. 1963).8
Furthermore, as noted in appellee's brief, the "res judicata" principle has been applied even where no hearing had been held on the prior claim: Norkey v. Celebrezze, supra; Rivers v. Celebrezze, 217 F.Supp. 141 (W.D.Va.1963); Salyers v. Celebrezze, 214 F.Supp. 834 (W. D.Va.1962).9
In 1965 the bracketed language was liberalized to read:
* * * or has lasted or can be expected to last for a continuous period of not less than 12 months.
Appellant contends that the 1965 amendments are applicable10 because there has been no final administrative decision on his current claim. In view of the effect of the regulations discussed above, 20 C.F.R. §§ 404.908 and 404.937, a "final administrative decision" does appear to have been made under the particular circumstances here. Assuming appellant's premise to be correct, however, the Hearing Examiner did consider the current application under the 1965 amendments and concluded that appellant did not come within their more beneficent provisions.11 There is substantial evidence in the record to support the Examiner's determination, which has been approved by the Appeals Council and the court below.12
Finally, we find no merit in appellant's contention, raised for the first time at oral argument, that the case should be sent back for further review by the Secretary because appellant was not represented by counsel in the prior applications or in the hearing before the Examiner in the present suit. In the absence of a showing of clear prejudice or unfairness at the agency level proceedings, the lack of counsel is not a sufficient cause for remand. See Steimer v. Gardner, 395 F.2d 197 (9th Cir. 1968).
The order of the district court granting appellee's motion for summary judgment and denying the similar motion of appellant will be affirmed.
1 "TR" refers to the certified copy of the Administrative Record filed with this court.
2 As stated by the district court, there "is a well-established line of case law reciting the absolute necessity of the coincidence of both of the above elements * * *." Appellant's Appendix 2(a). Casey v. Cohen, 295 F.Supp. 561, 562 (W.D.Va. 1968).
3 While appellant's record showed that he earned some additional social security credits after December 31, 1959, these were insufficient to extend the date on which he last fully met the earnings requirement. (TR. 69.) Any disability commencing after the coverage period, i. e., after the date on which an applicant last met the earnings requirement, does not entitle him to disability benefits. Cline v. Cohen, 295 F.Supp. 797, 802 (S.D. W.Va. 1969).
4 Filed in 1963 and 1964.
5 Appellant now challenges both parts of the 1964 determination.
6 20 C.F.R. §§ 404.910-404.916 establish a procedure for reconsideration of the initial determination of the Social Security Administration.
7 As Judge Fullam pointed out below, in Moore the Secretary's "administrative...
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...to decisions of the Social Security Administration. See, e.g., Coulter v. Weinberger, 527 F.2d 224, 228 (3d Cir.1975); Domozik v. Cohen, 413 F.2d 5, 7-8 (3d Cir.1969). However, we have also ruled that when res judicata is applied in the context of administrative proceedings under the Act, i......
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...and Court review of the decision on his claim and that this would run counter to the purposes and provisions of the Act. Domozik v. Cohen, 413 F.2d 5 (3d Cir., decided June 30, 1969); Moore v. Celebrezze, 252 F.Supp. 593 (E.D.Pa.1966), affirmed 376 F.2d 850 (3d Cir. 1967); Phillip v. Ribico......