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October 25, 1991


The opinion of the court was delivered by: Robert L. Carter, District Judge.

  The Secretary of Health and Human Services determined in 1989 that Roberto Malave was disabled as of March 8, 1987, and awarded him Supplemental Security Income ("SSI") and Social Security Disability Insurance ("SSDI") benefits from that date forward. Malave seeks review of this decision, asserting that the evidence presented to the Secretary establishes an earlier disability onset date of June 15, 1983.

Malave suffers from a variety of medical and psychological problems. Besides labile hypertension, gastroesophageal reflux, a seizure disorder, and spastic colon (R. 343, 400),*fn1 he suffers from two congenital diseases: Osler-Weber-Rendu Syndrome, which causes spontaneous internal and mucous-membrane bleeding, and neurofibromatosis, which causes recurrent boils. (R. 34, 271, 400). Further, at least as of July, 1987, Malave was diagnosed as schizophrenic. (R. 242, 348).

In 1983 or 1984, Malave applied to the Secretary for SSI and SSDI benefits claiming these disabling conditions, but his application was denied.*fn2 Malave reapplied for benefits in 1986, and was once again denied both initially and on reconsideration. In 1987, Malave requested a hearing before an Administrative Law Judge ("ALJ") to review the 1986 determination denying him benefits. Since the request for a hearing was not filed within 60 days of the notice of denial after reconsideration, as required by HHS regulations, 20 C.F.R. § 404.933, § 416.1433 (1991), the ALJ dismissed Malave's request, and the decision on reconsideration became binding.*fn3

Malave filed the present application for SSI and SSDI benefits on May 13, 1988, alleging a disability onset date of June 15, 1983.*fn4 After an initial denial, reconsideration, a hearing before an ALJ, and a ruling by the Appeals Council, the Secretary determined that Malave was in fact disabled, but only as of March 8, 1987. Malave appeals from the portion of this decision finding him not disabled before March 8, 1987. He contends that he was disabled starting on June 15, 1983, and that he is therefore entitled to benefits from that date forward.

This case is now before the court on cross-motions for judgment on the pleadings. The Secretary has filed a purely jurisdictional motion, arguing that the court lacks subject matter jurisdiction over this case. The plaintiff's cross motion disagrees with this contention and argues the merits of Malave's claim.


The Secretary's jurisdictional argument can be interpreted in two ways. First, it may be interpreted as stating that jurisdiction is lacking in this case because Malave seeks review not of a portion of his successful 1988 application, but rather of his 1986 application that was dismissed in 1987. While the Secretary is quite correct that the court is without jurisdiction to review the 1987 dismissal of Malave's application,*fn5 he seems to have misunderstood Malave's argument. Malave does not contend, as this interpretation of the Secretary's argument would imply, that the court has jurisdiction directly over the 1987 dismissal. Instead, he asserts that the court has jurisdiction over his 1988 application, which was properly appealed through the administrative review process, and complains that the denial of disability benefits for the period from 1983 to 1987, as part of the adjudication of his 1988 application, was in error. Thus the fact that the court lacks jurisdiction directly over the 1987 decision of the Secretary is irrelevant.

The Department of Health and Human Services ("HHS") has instituted a lengthy process for considering applications for SSI and SSDI benefits. The process starts with an initial decision and subsequent reconsideration by HHS staff, provides a hearing before an administrative law judge, and finally allows discretionary review by the Appeals Council. Once this administrative procedure is exhausted, the claimant may institute suit in the United States District Courts. See 20 C.F.R. § 404.900 et seq., 416.1400 et seq. (1991).

To prevent this elaborate system of administrative review from being forced to consider repeated claims for the same relief based on the same facts, Congress has set up administrative res judicata rules. These rules provide that once a claim has been adjudicated by HHS and the claimant has pursued all the levels of appeal he wishes, that administrative determination is binding on the claimant as to that particular claim. See 20 C.F.R. § 404.957(c), 416.1457(c) (1991). Thus once a claimant has applied for benefits based on one set of facts, and that claim has been adjudicated as far as the claimant chose to pursue it, the Secretary's determination is binding and the Secretary can dismiss any future applications for benefits based on the same facts. The claimant, of course, remains free to pursue new claims.

HHS regulations provide one means of evading the res judicata strictures, however. Within specified time limits after the date of initial determination, claimants may request reopening of their application for good cause shown. 29 C.F.R. § 404.988 [SSDI] (four years), 416.1488 (two years) [SSI] (1991). Good cause will be found where (1) there is new and material evidence, (2) a clerical error has been shown, or (3) there was a clear error on the face of the evidence considered in the original determination. 20 C.F.R. § 404.989 [SSDI], 416.1489 [SSI] (1991). Once the case is reopened, the earlier determination may be revised. 20 C.F.R. § 404.987(a) [SSDI], 416.1487(a) [SSI] (1991).

Thus the Secretary has discretion to reopen prior determinations, despite the binding effect earlier administrative adjudications usually have on claimants. In some cases the Secretary orders a prior application reopened. However, courts have declared prior applications to have been reopened even where the Secretary makes no mention of having done so, Brown v. Sullivan, 932 F.2d 1243, 1246-47 (8th Cir. 1991); Cleaton v. Secretary, Dept. of Health & Human Servs., 815 F.2d 295 (4th Cir. 1987); Purter v. Heckler, 771 F.2d 682 (3d Cir. 1985); Taylor for Peck v. Heckler, 738 F.2d 1112 (10th Cir. 1984); McGowen v. Harris, 666 F.2d 60, 65 (4th Cir. 1981); Guy v. Sullivan, 736 F. Supp. 1255 (W.D.N.Y. 1990), and in a few cases where the Secretary has explicitly refused to reopen prior applications. See, e.g., Jelinek v. Heckler, 764 F.2d 507 (8th Cir. 1985).

The crucial inquiry is whether, in ruling on the present application, the Secretary addressed the prior decisions and held all or part of the claim barred by res judicata, or whether he proceeded to "review[] the entire record in the new proceeding and reach[] a decision on the merits." Kane v. Heckler, 776 F.2d 1130, 1132 (3d Cir. 1985). If the Secretary reviews the entire record and renders a decision on the merits, the earlier decisions will be deemed to have been reopened, and any claim of administrative res judicata to have been waived by the Secretary. Coup v. Heckler, 834 F.2d 313, 317 (3d Cir. 1987). As one Court of Appeals explained,

  even though the subsequent claim be the same for res
  judicata purposes, if it has nevertheless been
  reconsidered on the merits to any extent at any
  administrative level, it is thereupon properly
  treated as having been, to that extent, reopened as a
  matter of administrative discretion under
  20 C.F.R. § 404.989 (1981)

  . . . In that event a final decision of the
  Secretary denying the claim is also subject to

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