Lauritzen v. Weinberger, 74-1382

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: Before LAY and HEANEY, Circuit Judges, and SMITH; HEANEY
• Citation: Lauritzen v. Weinberger, 514 F.2d 561 (8th Cir. 1975)
• Decision Date: 11 April 1975
• Docket Number: No. 74-1382,74-1382
• Parties: Thelma H. LAURITZEN, Appellant, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Appellee.

Page 561

514 F.2d 561

Thelma H. LAURITZEN, Appellant, v. Caspar WEINBERGER, Secretary of Health, Education and Welfare, Appellee.

No. 74-1382.

United States Court of Appeals Eighth Circuit.

Submitted Nov. 15, 1974.

Decided April 11, 1975.

Donald S. Singer, Clayton, Mo., for appellant.

Jean Hamilton, Asst. U. S. Atty., St. Louis, Mo., for appellee.

Before LAY and HEANEY, Circuit Judges, and SMITH, Senior District Judge. ^*

HEANEY, Circuit Judge.

Thelma Lauritzen argues on this appeal that her social security disability benefits were wrongfully terminated on October 22, 1965. The Secretary of Health, Education and Welfare, on the other hand, argues that substantial evidence on the record as a whole supports the decision to terminate. He further argues that Mrs. Lauritzen is now precluded from raising the question of improper termination because: (1) she failed to seek a timely judicial review of the final administrative decision, rendered on August 1, 1967, with respect to the October 22, 1965, termination, see 42 U.S.C. § 405(g), and that, therefore, the issues of fact litigated in that proceeding are binding; (2) she failed to request a reopening of the October 22, 1965, determination within four years of that determination, as required by 20 C.F.R. § 404.957(b); (3) she failed to adduce new evidence to support her claim that she was in fact disabled between October 22, 1965, and March 31, 1966, the last date on which she met the earnings requirements of the law; and (4) she failed to establish that there are errors "on the face of the evidence" justifying a reopening pursuant to 20 C.F.R. § 404.957(c)(8).

We disagree with the Secretary's argument that substantial evidence on the record as a whole supports the 1967 decision to terminate Mrs. Lauritzen's benefits; and were we directly reviewing that determination, we would have no hesitancy in saying so.

We also disagree with his argument that Mrs. Lauritzen's failure to request judicial review of the August 1, 1967, final determination necessarily bars judicial review of the Appeals Council's decisions.

Mrs. Lauritzen filed a third application for reinstatement of disability benefits on December 8, 1971. In that application, she contended that she had been continuously disabled since 1964. The application was denied and then referred, on Mrs. Lauritzen's request, to an administrative law judge for decision. He stated that he assumed the matter had been referred to him pursuant to 20 C.F.R. § 404.957(c)(8). That section provides that an initial, revised or reconsidered determination may be reopened at any time when

(s)uch initial * * * determination * * * is unfavorable, in whole or in part, to the party thereto but only for the purpose of correcting clerical error or error on the face of the evidence on which such determination * * * was based. (Emphasis added.)

The Social Security Claims Manual defines error on the face of the evidence as follows:

* * * An error on the face of the evidence exists where, on the basis of all the evidence in the file on which the determination or decision was based and any evidence of record anywhere in the Administration at the time such determination or decision was made, it is clear that the determination or decision was incorrect. * * *

A determination or decision which was reasonable on the basis of the evidence in the file and the statute, regulations, instructions, precedents, etc., existing at the time the determination or decision was made, will not be reopened merely because there is a shift in the weight of the evidence, a different inference is now drawn from the evidence, a different rule of law would now be applied, or the statute or regulations have been amended, unless such amendment specifically provides otherwise. * * * In such cases, there is no error on the face of the evidence on which the determination or decision was based (i. e., the "record") which would permit reopening.

Social Security Claims Manual § 7015 (May, 1970) (Emphasis included.).

The administrative law judge, after an evidentiary hearing, found that Mrs. Lauritzen's disability did not cease to exist in October of 1965 but continued uninterrupted to the date of his decision in December of 1972.

The Appeals Council, on review of the record, reversed the administrative law judge. It found that Mrs. Lauritzen could perform light clerical work during the period in question and that the evidence did not warrant a revision of its earlier decision to terminate Mrs. Lauritzen's benefits. The Council also stated that the October 22, 1965, determination was final and binding and not subject to reopening under 20 C.F.R. §§ 404.956 or 404.957(c).

The District Court, on review, recognized the right to reopen pursuant to § 404.957(c)(8), but stated that Mrs. Lauritzen had not shown that there was error on the face of the evidence. It also held that since the August 1, 1967, final decision was not subject to being reopened, it was binding under principles of administrative res judicata.

The critical question is, of course, what is meant by error on the face of the evidence. The Claims Manual and judicial decisions provide the guide. The question is whether an injustice has been done to a claimant, see United States v. Smith, 482 F.2d 1120, 1123 (8th Cir. 1973); Grose v. Cohen, 406 F.2d 823, 825 (4th Cir. 1969); Anderson v. Weinberger, 380 F.Supp. 640, 644 (D.Md.1974), or whether there is manifest error in the record, see Harrah v. Richardson, 446 F.2d 1, 2 (4th Cir. 1971); Easley v. Finch, 431 F.2d 1351, 1353 (4th Cir. 1970); but see Domozik v. Cohen, 413 F.2d 5 (3rd Cir. 1969).

Our task then is to examine the record to determine whether there was manifest injustice in terminating Mrs. Lauritzen's social security disability benefits in October of 1965. We believe that there was such injustice.

The record shows that Mrs. Lauritzen was steadily employed from 1942 to 1961 in various factory, office and clerical jobs. In the fall of 1963, she developed shortness of breath and chest pains when under strain or when "trying to do something." On April 12, 1964, she was admitted to a hospital where her condition was diagnosed as "arteriosclerotic heart disease with cardiac decompensation and anterior myocardial ischemea." ¹ She was released from the hospital on May 23, 1964. Thereafter, she made application for and was awarded disability benefits of $77.00 per month effective June, 1964, with the condition...