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LEWIS v. SECRETARY

December 22, 1980

Lorne LEWIS, Plaintiff,
v.
SECRETARY, DEPARTMENT OF HEALTH, EDUCATION AND WELFARE, Defendant



The opinion of the court was delivered by: CANNELLA

MEMORANDUM AND ORDER

Plaintiff's motion for reconsideration of the Court's decision of September 22, 1978, which granted defendant's motion for judgment on the pleadings, is granted.

Defendant's cross-motion to dismiss part of the complaint for lack of subject matter jurisdiction, and for judgment on the pleadings as to the remainder of the complaint is granted. Fed.R.Civ.P. 12(b)(1), (c).

 FACTS

 Plaintiff brings this action under section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Secretary of Health, Education and Welfare *fn1" (the "Secretary") denying plaintiff's application, under 42 U.S.C. § 423, for disability insurance benefits. Plaintiff first applied for such benefits in May 1967, complaining that various medical problems had prevented him from working since June 1966. His application was denied and that decision was upheld both upon reconsideration and upon a written decision rendered after a full evidentiary hearing before a Hearing Examiner. Transcript of Administrative Record at 56-122 (hereinafter "Tr."). Plaintiff did not seek further administrative or judicial review of this decision. Tr. at 12. In October 1971, having met the "earnings requirement" through March 31, 1972, *fn2" plaintiff again applied for disability benefits, complaining that medical problems with his nerves, heart and lungs had prevented him from working since April 1971. Tr. at 123. Again, his application was denied both initially and upon reconsideration. Tr. at 127-32. Plaintiff was granted another evidentiary hearing, after which Administrative Law Judge ("ALJ") Neubauer, in a written decision, denied his claim. Tr. at 201-09. On administrative appeal to the Appeals Council of the Department of Health, Education and Welfare, the ALJ's decision was upheld, and plaintiff was notified of his right to seek judicial review. Tr. at 214. Plaintiff, however, did not exercise this right. Tr. at 13. In January 1975, having now met the earnings requirement through June 30, 1972, *fn3" plaintiff again applied for disability benefits, complaining that a bad back and generalized pains had prevented him from working since 1971. Tr. at 215-18. Like plaintiff's previous two applications, this application was denied both initially and upon reconsideration. Tr. at 219-23. Plaintiff requested and received a hearing before an ALJ and, after reviewing the evidence presented as well as the prior record, ALJ Jacobs, in a written decision, denied the claim. Tr. at 11-55, 224-38. Referring to ALJ Neubauer's decision on plaintiff's second application, ALJ Jacobs issued the following ruling:

 
(T)he previous decision of the Administrative Law Judge has become final and binding upon the parties since no action to review it was ever commenced. (See 20 C.F.R. § 404.951.)
 
I have carefully considered all of the evidence of record including all of the exhibits in evidence and the testimony received as well as the contentions advanced by the claimant's attorney.
 
The claimant merely reiterates contentions he has made in connection with his previous applications and at the previous hearing and which have been carefully considered. No new or material evidence is presented concerning the issues which were finally decided at the time of the previous Administrative Law Judge's decision. Hence that decision is res judicata as (to) all matters decided therein. I find no evidence of any additional limitation or impairment arising between March 31, 1972 and June 30, 1972.

 Tr. at 13-14. In his second application, as noted above, plaintiff had been eligible for benefits through March 31, 1972. Thus, because ALJ Neubauer's decision on the second application had not been judicially reviewed, ALJ Jacobs, on the third application, addressed only the question of plaintiff's eligibility between March 31 and June 30, 1972. Tr. at 12-14. ALJ Jacobs's decision was upheld on administrative appeal by the Appeals Council, see Tr. at 3-4, 239-81, and in April 1977 plaintiff sought review in this Court. 42 U.S.C. § 405(g).

 On September 22, 1978, the Court granted defendant's motion for judgment on the pleadings, see Fed.R.Civ.P. 12(c), and dismissed the complaint, finding that the Secretary's decision was supported by substantial evidence, 42 U.S.C. § 405(g). On appeal, the Court of Appeals for the Second Circuit remanded the action to this Court for further consideration, specifically to determine whether this Court lacked subject matter jurisdiction to review the Secretary's decision, an issue not considered by the Court in its September 22, 1978 decision. Having now reviewed the papers submitted with the instant motions, and having again reviewed the administrative record, the Court concludes (1) that it lacks subject matter jurisdiction to review the Secretary's decision on plaintiff's third application with respect to the claim for benefits through March 31, 1972, and (2) that, with respect to the Secretary's denial of benefits for an alleged disability arising between March 31 and June 30, 1972, her decision is supported by substantial evidence and should be affirmed. The Court further concludes that, even if it had jurisdiction to review defendant's decision in its entirety, the complaint should be dismissed because defendant's decision as to the pre-March 31, 1972 portion of plaintiff's third application is also supported by substantial evidence.

 DISCUSSION

 Subject Matter Jurisdiction

 With respect to plaintiff's claim for benefits through March 31, 1972, the following principles control this Court's decision. First, section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), provides that a "final decision of the Secretary made after a hearing to which (she) was a party" is reviewable in the appropriate United States District Court. The Supreme Court has interpreted this provision to mean that judicial review of the Secretary's declining to reopen a prior final decision under 20 C.F.R. § 404.957 is not reviewable because Congress determined "to limit judicial review to the original decision denying benefits." Califano v. Sanders, 430 U.S. 99, 108, 97 S. Ct. 980, 985, 51 L. Ed. 2d 192 (1977); accord, Cappadora v. Celebrezze, 356 F.2d 1, 4 (2d Cir. 1966). Several Circuit Courts of Appeal have extended the coverage of this holding to situations in which the Secretary dismisses a claim on the basis of res judicata under 20 C.F.R. § 404.937(a). Matos v. Secretary of HEW, 581 F.2d 282, 286-87 (1st Cir. 1978) (Moore, J., sitting by designation); accord, Rios v. Secretary of HEW, 614 F.2d 25, 26 (1st Cir. 1980); Hensley v. Califano, 601 F.2d 216 (5th Cir. 1979) (per curiam); Janka v. Secretary of HEW, 589 F.2d 365, 367 (8th Cir. 1978); Teague v. Califano, 560 F.2d 615, 618 (4th Cir. 1977) (Moore, J., sitting by designation). *fn4"

 Second, when a claimant takes no action to review a decision of an ALJ, that decision becomes final and binding on the parties. See 20 C.F.R. § 404.951. Thus, such a decision is administratively res judicata as to all matters decided therein, and the Secretary may dismiss a later claim if it raises the same matters. See id., § 404.937(a); Janka v. Secretary of HEW, supra, 589 F.2d at 367; ...


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