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November 22, 1972

Elliot RICHARDSON, as Secretary of Health, Education and Welfare

Costantino, District Judge.

The opinion of the court was delivered by: COSTANTINO


COSTANTINO, District Judge.

 In this action eighty-nine year old Lena Polansky seeks review of a denial by the Social Security Administration of her application pursuant to 42 U.S.C. § 402(b) (1971) for wife's insurance benefits. The Social Security Administration, alleging that the court is without subject matter jurisdiction, has moved to dismiss plaintiff's complaint. In addition to her opposition to the defendant's motion, plaintiff has cross-moved for summary judgment.

 Lena Polansky first applied for wife's insurance benefits as the wife of Isaac Polansky on May 3, 1962. Her claim was initially denied upon a finding that she was no longer the wife of Isaac by operation of an Arizona divorce granted on August 6, 1924. This determination became final when on December 31, 1964 the Appeals Council of the Social Security Administration, following a hearing on the merits, affirmed the hearing examiner's decision denying plaintiff's claim. Although advised of her right to do so, the plaintiff never commenced an action to review the Administration's determination. Instead she made a subsequent petition to have her prior application reconsidered, which was promptly denied. On March 20, 1970, plaintiff once again applied for wife's insurance benefits. Her application was summarily dismissed and subsequent requests to obtain a hearing or review by the Appeals Council were denied. The dismissal of plaintiff's second application was based upon a finding that the prior denial of her claim was a bar to any further consideration of it, which finding was predicated upon the doctrine of res judicata as embodied in 20 C.F.R. § 404.937(a) (1972). This action was commenced to review the dismissal of plaintiff's second application.

 The threshold issue confronting the court is whether it has jurisdiction to review an Appeals Council's decision of dismissal. The government asserts that where the Appeals Council dismisses, without a hearing on the merits, a claim on the basis of res judicata a federal district court is without authority to review that determination. This contention is bottomed upon section 405 of title 42 of the United States Code.

 Section 405(h) reads in pertinent part as follows:

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.

 Section 405(g) authorizes review by a federal district court of a "final decision of the Secretary made after a hearing" if such action is commenced "within sixty days after the mailing . . . of notice of such decision or within such further time as the Secretary may allow." It is the government's view that save for the limited judicial review permitted by section 405(g), section 405(h) is a total bar to any other form of judicial review of the Administration's decisions. In view of the fact that the federal courts have already spoken as to the meaning of section 405, the government's view is without merit.

 In Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966), it was held that section 405(h) "simply forbids attempts to review final decisions on the merits by any route other than that provided in § 405(g)." Id. at 5. In addition, that case held that section 10 of the Administrative Procedure Act, 5 U.S.C. § 1009 (now 5 U.S.C. §§ 701-706), authorized judicial review where the Administration had refused an applicant's request for a hearing on the merits. Since plaintiff's application for benefits was summarily dismissed, despite her timely requests for a hearing, the court concludes that it has jurisdiction to determine the validity of that agency action. 5 U.S.C. §§ 701-706 (1971); Cappadora v. Celebrezze, supra ; see Leviner v. Richardson, 443 F.2d 1338 (4th Cir. 1971); Grose v. Cohen, 406 F.2d 823 (4th Cir. 1969).

 The core issue, then, to be decided by this court is whether administrative res judicata as embodied in 20 C.F.R. § 404.937 (1972) bars plaintiff's latest application for benefits. In turn that determination will evolve upon the legal sufficiency of the Appeals Council's decision of December 31, 1964. Recent cases have held that where a final determination of the Social Security Administration is subject to a reopening pursuant to that agency's own regulations, 20 C.F.R. § 404.957 (1972), that determination should not be accorded finality and thus could not be a foundation for res judicata. Leviner v. Richardson, supra, 443 F.2d at 1342; Grose v. Cohen, supra, 406 F.2d at 825.

 Section 404.957(c)(8) provides that a final determination of the Administration may be reopened:

At any time when:
Such . . . decision is unfavorable, in whole or in part, to the party thereto but only for the purpose of correcting . . . error on the face of the evidence on which such determination or decision was based.

 If in fact, then, the 1964 decision of the Appeals Council is legally insufficient, that decision, notwithstanding plaintiff's failure to commence a timely action of review, cannot properly be the basis of the ...

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