20 CFR 404.937

SSR 65-7c

ARNOLD V. CELEBREZZE, U.S.D.C., N.D. Ala., S. Div., 63 Civ. No. 271 (9/25/63) (CCH U.I.R. Fed. Par. 16,044)

The plaintiff's claim having been denied, he requested a hearing. His request for hearing was dismissed on the ground that the matter presented was res judicata, because in a claim previously filed by the plaintiff the same facts and issues as were now presented had been considered by the Secretary in a decision which became final through the plaintiff's failure to institute action for judicial review within the period prescribed by law. Held, under the provisions of section 205(g) of the Act, the court is without jurisdiction to review the dismissal of the plaintiff's request for hearing, or to grant other relief sought by the plaintiff.

C. W. ALLGOOD, District Judge:

Plaintiff, by this action, seeks to have this Court review a decision of the Appeals Council of the Social Security Administration. Plaintiff alleges that this Court has jurisdiction of the cause under Section 205(g), "Social Security Act", as amended, 42 U.S.C. 405(g), because the decision of the Appeals Council is a "final decision of the Secretary" under Section 205(g), supra. The defendant has moved to dismiss the complaint, and the case has been submitted to the Court on the defendant's motion and on the affidavits and briefs of the respective parties.

The question is whether this Court has jurisdiction of the subject matter of this action.

On August 16, 1962, plaintiff filed an application for a period of disability and for disability insurance benefits under Sections 216(i) and 223, "Social Security Act", as amended, 42 U.S.C. Sections 416(i) and 423. This application was denied. Subsequently, plaintiff requested a hearing on the denial of his application before a Hearing Examiner of the Social Security Administration. This request, however, was dismissed by the Hearing Examiner on the ground that the matter presented in plaintiff's application was res judicata.[1] Thereafter, the Appeals Council denied plaintiff's request for a review of the action of the Hearing Examiner. Hence, plaintiff instituted this action.

Since no "hearing" was held on the plaintiff's application filed on August 16, 1962, this Court has no jurisdiction to review the action of the Appeals Council denying plaintiff's request.[2] The action of the Appeals Council under the circumstances here presented is not a "final decision" of the Secretary of Health, Education and Welfare. Section 205(g), "Social Security Act", as amended, 42 U.S.C. Section 405(g); Hobby v. Hodges, (10th Cir., 1954), 215 F.2d 754; Hatter v. Ribicoff, (D.C., Okl., 1961), 199 F.Supp. 654; Gianforti v. Ribicoff, (D.C., N.Y., 1961), 200 F.Supp. 450.

Furthermore, the facts, as set forth in the plaintiff's complaint and in the affidavits filed by the respective parties, show conclusively that the matter presented in plaintiff's application of August 16, 1962, is res judicata. The question of whether plaintiff was disabled, on or before the date his insured status under the Act expired, had been decided against the plaintiff, in a final decision of the Secretary, prior to the time that plaintiff filed the application of August 16, 1962. The plaintiff did not institute any action or proceeding for judicial review of that final decision within the time prescribed by law. Such being the case, the Secretary's decision is ". . . binding on and conclusive against plaintiff herein by virtue of Section 205(h) of said Act, 42 U.S.C.A. Sec. 405(h)." Hatter v. Ribicoff, supra, p. 655; Hobby v. Hodges, supra; Kindig v. Ribicoff, (D.C., Va., 1962), 202 F.Supp. 198. See, Bomer v. Ribicoff, (6th Cir., 1962), 304 F.2d 427.

Therefore, this Court has no jurisdiction to grant any of the relief prayed for in the plaintiff's complaint.

The plaintiff's contention that the Secretary is "estopped from insisting upon a narrow interpretation of the Statute", on the ground that the District Manager of the Social Security Administration misled him regarding his right to submit subsequent applications to the Administration, is without merit. Flamm v. Ribicoff, (D.C., N.Y., 1961), 203 F.Supp. 507.

It is therefore, ORDERED, ADJUDGED and DECREED that the plaintiff's complaint be, and the same is hereby dismissed.

[1] § 20 CFR 404.937 provides, in pertinent part: "The hearing examiner may, on his own motion, dismiss a hearing request, either entirely or as to any stated issue, under any of the following circumstances: (a) Res judicata. -- Where there has been a previous determination or decision by the Secretary with respect to the rights of the same party on the same facts pertinent to the same issue or issues which has become final either by judicial affirmance or, without judicial consideration, upon the claimant's failure timely to request reconsideration, hearing, or review, or to commence a civil action with respect to such determination or decision (see §§ 404.911, 404.918, 404.946, and 404.951). * * *" [Ed.]

[2] Section 205(g) of the Act provides, in pertinent part: "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. * * *" (Emphasis added.) [Ed.]

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