Ruiz-Olan v. Secretary, Dept. of Health, Ed. and Welfare, RUIZ-OLA

• Decision Date: 12 March 1975
• Docket Number: RUIZ-OLA,P,No. 74--1209
• Citation: 511 F.2d 1056
• Parties: Enriquelaintiff-Appellee, v. SECRETARY, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1056

511 F.2d 1056

Enrique RUIZ-OLAN, Plaintiff-Appellee, v. SECRETARY, DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE,

Defendant-Appellant.

No. 74--1209.

United States Court of Appeals, First Circuit.

Submitted Feb. 5, 1975.

Decided March 12, 1975.

Carla A. Hills, Asst. Atty. Gen., New York City, Julio Morales Sanchez, U.S. Atty., Leonard Schaitman and Judith H. Norris, Attys., App. Section, Civ. Div., Dept. of Justice, Washington, D.C., on brief for defendant-appellant.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

PER CURIAM.

Claimant's February 1968 application for disability benefits was denied initially also upon reconsideration. In histories taken by physicians and at the ensuing hearing, claimant asserted that he suffered from daily bronchial asthma attacks, and the vocational expert agreed that attacks of such frequency would be disabling under the Act. However, another medical history reported claimant's statement that he had not suffered an attack in twelve days, and in response to a question about the frequency of the attacks a friend appearing on claimant's behalf testified that claimant suffered the 'strongest' attacks once a month. The administrative law judge concluded that the attacks occurred 'only monthly or even less often, because there is only medical observation of one such attack in the medical record.' The vocational expert testified that attacks of this frequency would not be disabling. Claimant also introduced evidence as to his allergies, nervous anxieties, and blood pressure, but the judge nevertheless determined that claimant was not disabled before March 31, 1969, the last date he satisfied the earnings requirements. Claimant took no further action with respect to this decision.

In February 1971 claimant reapplied for benefits. This application was also denied initially and upon reconsideration. Claimant's request for a hearing was denied on grounds of res judicata. 20 C.F.R. § 404.937(a) (1974). The administrative law judge then proceeded to treat the application as a petition to reopen the Secretary's prior decision. Lopez v. Secretary,342 F.Supp. 778 (D.P.R.1972); Nicholson v. Finch, 311 F.Supp. 614, 615 (D.Mont.1970). 20 C.F.R. § 404.957 provides that a decision 'may be reopened . . . (b) . . . upon a finding of good cause. . . .' 20 C.F.R. § 404.958(a) defines good cause as the furnishing of 'new and material evidence.' ¹ The administrative law judge found that no good cause had been shown. 'Evidence submitted in connection with the second application, while new, does not have a material relevance with respect to the claimant's disability status from a time on or before March 31, 1969, when he last met the special earnings requirement for disability purposes.' Therefore the judge declined to reopen the prior decision. The district court reversed this decision and proceeded to grant disability benefits to the claimant. This appeal followed.

We think the application was properly dismissed on res judicata grounds, since evidence on all of the claimed impairments had been before the administrative law judge on the previous application which was rejected after claimant's period of eligibility for disability benefits and expired. ² See, e.g., Stuckey v. Weinberger, 488 F.2d 904 (9th Cir. 1973) (en banc). As to the refusal to reopen, we agree that this administrative action is subject to judicial review under the Administrative Procedure Act, 5 U.S.C. § 701 (1970), notwithstanding §§ 405(g) and (h) of the Social Security Act. See Maddox v. Richardson, 464 F.2d 617 (6th Cir. 1972); Davis v. Richardson, 460 F.2d 772 (3d Cir. 1972); Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966). But see Stuckey v. Weinberger, supra. ³ But review is restricted to ascertaining whether the administrative action was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, 5 U.S.C. § 706(2)(A). The court below erred in holding that the Secretary's refusal to reopen his prior decision was such. Most of the new evidence presented by claimant was cumulative or not directly relevant to his condition during his period of eligibility. Dr. Baez' medical report does to some extent corroborate claimant's assertion as to the frequency of his attacks. ⁴ But while Dr. Baez was a treating and not merely an examining physician,...