Lejeune v. Mathews, 75-3578 Summary Calendar.

• Decision Date: 06 February 1976
• Docket Number: No. 75-3578 Summary Calendar.,75-3578 Summary Calendar.
• Parties: Joseph LEJEUNE, Plaintiff-Appellant, v. F. David MATHEWS, Secretary of Health, Education and Welfare, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

526 F.2d 950

Joseph LEJEUNE, Plaintiff-Appellant, v. F. David MATHEWS, Secretary of Health, Education and Welfare, Defendant-Appellee.

No. 75-3578 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

February 6, 1976.

Aaron F. McGee, Eunice, La., for plaintiff-appellant.

Donald E. Walter, U.S. Atty., Shreveport, La., Robert E. Kopp, Thomas G. Wilson, App. Sec., Civ. Div., Dept. of Justice, Washington, D.C., for defendant-appellee.

Before GEWIN, GOLDBERG and DYER, Circuit Judges.

PER CURIAM:

Joseph Lejeune brought this action in the district court seeking judicial review of both the denial by the Secretary of Health, Education and Welfare of Lejeune's application for disability benefits and the refusal by the Secretary to reopen that determination. The district court granted summary judgment in favor of the Secretary and we affirm.

Lejeune filed the application for benefits in 1969, and the claim was denied. At Lejeune's request, a hearing was held in 1970 before an Administrative Law Judge, who determined that Lejeune was not disabled within the meaning of the Social Security Act. The notice of this decision advised Lejeune that he could request the Appeals Council to review the decision within 60 days and that if no request for review was filed, judicial review of the decision could not be obtained. He filed no request for review.

In 1973, Lejeune requested that the matter be reopened pursuant to 20 C.F.R. 404.957 on the ground of new medical evidence. The claimant was unable immediately to produce this new evidence, and the Administrative Law Judge concluded, after rereading the record, that the original decision should stand. In 1974, Lejeune's attorney submitted a letter from Dr. Bobby Deshotel, which stated:

Re: Mr. Joe Lejeune

I have been treating this patient for years. He has Chronic heart disease and a ruptured lumbar disc. Either of these diagnosis sic makes this patient disable sic.

You may refer him to any specialist you wish and they will verify this.

The Administrative Law Judge considered this letter, but concluded that it did not change his decision that the matter should not be reopened. Upon request for review, the Appeals Council upheld the decision of the Administrative Law Judge and advised Lejeune that the 1970 decision remained in effect.

The district court did not discuss Lejeune's claim that the original denial of benefits was based on an erroneous determination of nondisability. This omission may have been based on an implicit finding which we now make explicit — the district court had no jurisdiction to consider this claim. 42 U.S.C. § 405(h) provides:

The findings and decisions of the Secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided. No action against the United States, the Secretary, or any officer or employee thereof shall be brought under section 41 of Title 28 to recover on any claim arising under this subchapter.

42 U.S.C. § 405(g) provides in part:

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.

. . . . .

Section 405(h) limits the availability of judicial review of agency decisions reached after a hearing to the procedure spelled out in section 405(g). To secure judicial review under § 405(g), Lejeune should have requested review of the Administrative Law Judge's 1970 decision by the Appeals Council and, if that body decided adversely to him, he then should have commenced a civil action within sixty days of the mailing to him of notice of that final decision. See 20 CFR §§ 404.940, 404.945, 404.951. He did not follow these procedures, and so lost his opportunity for judicial review of the original adverse determination on eligibility.

The Secretary urges us to hold that the district court also lacked jurisdiction to review the 1974 refusal to reopen the determination. This argument is foreclosed by our recent decision in Ortego v. Weinberger, 5 Cir. 1975, 516 F.2d 1005, which held that a federal district court had jurisdiction under section 10 of the Administrative Procedure Act to review, for abuse of discretion, a refusal by the Secretary to reopen an application for social security benefits. See also Sanders v. Weinberger, 7 Cir. 1975, 522 F.2d 1167 (Tuttle, J.) (district court had jurisdiction, under APA, to review for abuse of discretion a refusal to reopen a determination of ineligibility).

The Secretary admits that if Ortego is good law, it controls the jurisdictional question in the case before us. The Secretary's argument is that Ortego was incorrectly decided in light of Weinberger v. Salfi, 1975, 422 U.S. 749, 95 S.Ct. 2457, 45 L.Ed.2d 522, a Supreme Court decision handed down shortly before Ortego. This argument is unavailing — Salfi was considered by the Ortego panel, see 516 F.2d at 1011 n.4,¹ and we are bound by Ortego's construction of Salfi.²

The law of this Circuit, then, is that a federal district court can have jurisdiction under the Administrative Procedure Act to review, for abuse of discretion, a decision by the Secretary not to reopen a determination of ineligibility for Social Security benefits. The district court correctly applied the abuse of discretion standard to the facts of this case in the following manner:

The additional medical evidence offered, that being the May 24, 1974 report of Dr. Bobby Deshotel, is entirely cumulative. Both diagnoses (heart disease and ruptured lumbar disc) were previously set forth by Dr. Deshotel in his previous medical reports, as was his conclusion that plaintiff was disabled thereby. The May 24, 1974 report as well as the earlier reports were entirely conclusionary in their nature, and such conclusions are not controlling on the Secretary without clinical support. Kirkland v. Weinberger, 480 F.2d 46 (5th Cir. 1973), cert. denied, 414 U.S. 913 94 S.Ct. 255, 38 L.Ed.2d 155 (1973).

The Secretary did not abuse his discretion in refusing to reopen the determination.

The judgment of the district court is affirmed.

* Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

1 The effect of Salfi on this jurisdictional question was also considered in Sanders v. Weinberger, supra, 522 F.2d at 1171. The Secretary petitioned the Ortego panel for rehearing, presenting the same arguments based on Salfi which he now urges here. The petition was denied. 516 F.2d 1005 (5th Cir. 1975). These arguments were also presented to the Seventh Circuit in a petition for rehearing en banc in Sanders, which petition also was denied. 522 F.2d 1167 (7th Cir. 1975).

2 The Secretary argues that Salfi supports the proposition that judicial review of H.E.W. decisions in Social Security cases can be based only on § 405(g). Salfi held that a federal court had...