The opinion of the court was delivered by: BONSAL
This is an action brought pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to review a decision of the defendant Secretary of the Department of Health, Education and Welfare (the Secretary) denying plaintiff's claim for disability insurance benefits based on an application dated October 19, 1967. Defendant moves pursuant to Rule 12(b), F.R. Civ. P., for an order dismissing the complaint on the ground that plaintiff's claim for relief is barred by the doctrine of res judicata.1
There is little dispute with respect to the factual background. On May 27, 1964, the plaintiff filed an application with the Social Security Administration of HEW (the Administration) for disability insurance benefits, claiming that he suffered from a disabling "nervous condition." This application was denied, and the denial was affirmed upon reconsideration. On December 2, 1965, plaintiff was notified:
"If you believe that the reconsideration determination is not correct, you may request a hearing before a hearing examiner of the Bureau of Hearings and Appeals. If you want a hearing, you must request it not later than 6 months from the date of this notice. You should make any such request through your Social Security District Office, 1657 Broadway, New York, New York 10019. Read the enclosed leaflet BHA-1 for a full explanation of your right to appeal."
Plaintiff did not request a hearing before a hearing examiner and took no further action with respect to his May 27, 1964 application.
Thereafter, on October 19, 1967, plaintiff filed a second application for disability insurance benefits again claiming a disabling "nervous condition." This application was denied initially and upon reconsideration. On November 15, 1968, plaintiff filed a timely request for a hearing before a hearing examiner. On February 28, 1969 a hearing examiner of the Administration issued an order dismissing plaintiff's request for a hearing, stating in part:
"[The] issue herein, for the same party, was decided by the Bureau of Disability Insurance on November 30, 1965. No new and material evidence with respect to claimant's condition on or prior to September 30, 1949 has been received by the Administration to warrant reopening of the November 30, 1965 reconsideration determination.
"As a result of the foregoing, the Request for Hearing filed on November 15, 1968 is hereby dismissed. The reconsideration determination of November 30, 1965 will continue to be effective."
On March 5, 1969 the plaintiff sought a review of the hearing examiner's decision by the Appeals Council of the Administration, and by letter dated March 27, 1969 he was advised of the Appeals Council's decision that the "dismissal action of the hearing examiner is correct" and that "the determination dated December 2, 1965, stands as the final decision of this Department."
Thereafter, plaintiff instituted the present action on the ground that the order denying him a hearing was not in accordance with law and was against the weight of the evidence "in that the plaintiff suffers from mental impairment of such severity that it makes it impossible for him to engage in his usual occupation or in any other kind of substantial gainful activity [and in that] plaintiff [was] determined to be 100% disabled by the Veteran's Administration."
At the outset, the court must determine whether it has jurisdiction to entertain this suit. With respect to judicial review of the Secretary's decision, 42 U.S.C. § 405(g) provides:
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. * * * The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. * * *"
No hearing has ever been held with respect to plaintiff's claim for disability insurance benefits, and a literal reading of § 405(g) leads to the conclusion that "such an action can be brought only where the plaintiff has had a hearing and has otherwise duly exhausted the administrative remedies and has obtained a 'final decision of the Secretary made after a hearing to which he [the plaintiff] was a party * * *.'" (Emphasis added.) Henderson v. ...