Gross v. Schweiker, Civ. A. No. 81-238-MAC.

• Decision Date: 11 January 1984
• Docket Number: Civ. A. No. 81-238-MAC.
• Citation: 577 F. Supp. 887
• Parties: Lucille GROSS, Plaintiff, v. Richard SCHWEIKER, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Middle District of Georgia

577 F. Supp. 887

Lucille GROSS, Plaintiff, v. Richard SCHWEIKER, Secretary of Health and Human Services, Defendant.

Civ. A. No. 81-238-MAC.

United States District Court, M.D. Georgia, Macon Division.

January 11, 1984.

Paul E. Kauffmann, Columbus, Ga., for plaintiff.

Frank L. Butler, III, Asst. U.S. Atty., Macon, Ga., for defendant.

OWENS, Chief Judge:

Plaintiff appeals from the final decision of the Secretary denying her application for disability benefits under the Social Security Act. For the reasons which follow this court must remand plaintiff's claim to the Secretary.

The plaintiff has pursued two sets of applications, hearings, and appeals before the Secretary. Plaintiff's first request for benefits was made on July 28, 1978. Her application was denied, and she thereafter proceeded pro se before an Administrative Law Judge (ALJ). The plaintiff in her first appearance established that she suffered a myocardial infarction in 1976, and was discharged with a diagnosis of arteriosclerotic heart disease, acute cardiac arrhythmia, paroxysmal arterial tachycardia and anginal syndrome. Plaintiff also established that she suffered from diabetes and vertigo in association with Meniere's disease. However, arguably because she was uncounseled, plaintiff failed to produce sufficient evidence of disability and diminished earning capacity. The ALJ thus denied her application. Plaintiff appealed to the Appeals Council but review was denied. No judicial review was pursued. Instead, plaintiff obtained the services of legal and other professional representation. A new application was filed and a second hearing requested. A hearing was granted by an ALJ and plaintiff's claim was presented by counsel. The ALJ at this second hearing agreed to consider all of the medical evidence adduced at the first hearing in conjunction with new evidence submitted in this second hearing. Based upon all of the evidence thereby established the ALJ found plaintiff disabled and entitled to benefits. Although the ALJ considered evidence from the first hearing, he refused to characterize plaintiff's first application as having been "reopened." He therefore found that, although entitled to benefits, plaintiff's "onset date" of eligibility commenced only at the end of the proceedings relative to her first application.

The plaintiff disagreed with the ALJ's refusal to make her eligibility retroactive to the date of her first application and appealed to the Appeals Council. The Appeals Council ruled that the ALJ's refusal to reopen plaintiff's first application precluded consideration of all evidence established at the first hearing. Therefore, looking only to the evidence established at the second hearing (and excluding all evidence relative to the myocardial infarction, arteriosclerotic heart disease, tachycardia, angina, and Meniere's disease) the Council found no cardiovascular abnormality or tachycardia, and only "dizziness." Based upon the exclusion of this evidence the Council found no evidence of disability and reversed the ALJ.

The plaintiff appeals to this court claiming that the Secretary erred in excluding evidence adduced at the first hearing. The Secretary counters that a refusal to reopen a prior application on the ground of administrative res judicata is unreviewable in this court, citing Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). The issues before this court are whether the doctrine of res judicata precludes review, and, if not, whether the Appeals Council erred in rejecting evidence established at plaintiff's first hearing.

Conclusions of Law

The provisions of 42 U.S.C. § 405(g) and (h) combine 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. As a general rule, where the Secretary has applied this doctrine of "administrative res judicata," a federal court is without jurisdiction to review this decision. Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); Hensley v. Califano, 601 F.2d 216 (5th Cir.1979). However, in the context of this action, the following caveats apply to this general rule. Where the Secretary has asserted the claim of administrative res judicata as a bar to judicial review of its actions, as the Secretary has done here, a federal court has jurisdiction to determine whether res judicata has properly been applied. McGowen v. Harris, 666 F.2d 60, 66 (4th Cir.1981). This is simply a form of a court's inherent jurisdiction to determine its own jurisdiction. Id., see Texas & Pacific Ry. v. Gulf, Colorado & Santa Fe Ry., 270 U.S. 266, 274, 46 S.Ct. 263, 265, 70 L.Ed. 578 (1927). In determining whether the Secretary has properly applied res judicata, the court must determine if the Secretary adhered to the rule that res judicata may bar consideration of the claim at issue only if it is the "same" claim earlier denied in a prior, final administrative decision. McGowen, 666 F.2d at 65; 20 C.F.R. § 404.957(c)(1) (1981). "Whether it is the same claim must necessarily be determined according to general principles of res judicata respecting the scope of a claim for purposes of merger and bar as adapted to the social security context." McGowen, 666 F.2d at 65. As will be developed below, this court finds that the Appeals Council erred when it concluded, for purposes of administrative res judicata, that plaintiff's second application raised the same claim presented in her first application. Having improperly applied res judicata, ...