UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: June 30, 1969.
LEO J. DOMOZIK, APPELLANT,
WILBUR J. COHEN, SECRETARY OF HEALTH, EDUCATION AND WELFARE, UNITED STATES OF AMERICA
Seitz, Aldisert and Stahl, Circuit Judges.
Author: Per Curiam
Opinion OF THE COURT
This is an appeal from a grant of summary judgment by the district court, Appellant's Appendix 1(a), in favor of the Secretary of Health, Education and Welfare, appellee, which had the effect of upholding the denial of appellant's claim for disability benefits.
Appellant's application for establishing a period of disability and for disability insurance benefits under the Social Security Act was filed on January 4, 1964, claiming June 10, 1961, as the date of onset of disability. After the Social Security Administration of the Department of Health, Education and Welfare rejected the application in 1966, a hearing was held before a Hearing Examiner who disallowed the claim on April 14, 1967 (TR. 4-10).*fn1 The Appeals Council declined review of the Examiner's decision in September 1967 (TR. 1), and appellant then filed this suit in the court below in accordance with § 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
In order to be eligible for disability benefits, a claimant must meet the twin requirements of
(1) disability within the meaning of the Act, and
(2) the requisite coverage preceding the onset of disability. §§ 216(i), 223, 42 U.S.C. §§ 416(i), 423.*fn2
The latter requirement is twenty calendar quarters of coverage, i.e., five years, during the ten-year period ending with the quarter in which the claimant becomes disabled.
Appellant did not have the required period of coverage with respect to the claimed June 10, 1961, date of onset of disability. According to appellee the last time appellant met the coverage requirement was December 31, 1959. (TR. 5, 66.)*fn3
Of prime significance to the decision in this case is the fact that in two prior applications appellant had made for disability benefits,*fn4 in which he had claimed 1958 and 1955 dates of disability, it had been determined that his condition was not disabling at any time from 1955 to December 31, 1959. (TR. 66.) These prior applications were rejected by the Chief of the Evaluation and Authorization Branch of the Social Security Administration in a letter dated November 23, 1964, which stated, in pertinent part:
After studying all the facts in your case and the medical evidence, and considering your statements, age, education, and experience, we find that your condition was not disabling within the meaning of the law on December 9, 1955, (the date you state you became unable to work), or on any later date through December 31, 1959. This is the last day on which you still met the earnings requirement.
If you believe that this determination is not correct, you may request that your case be reexamined. If you want this reconsideration you must request it not later than 6 months from the date of this notice. You may make any such request through your local social security district office. If additional evidence is available you should submit it with your request. Please read the enclosed pamphlet for more information about your right to question the decision made on your claim. (TR. 66.)
Appellant did not seek any administrative reconsideration of the 1964 denial of his application, either with respect to the absence of disability or the terminal date of his period of coverage,*fn5 within the six-month period. Nor has appellant ever sought to reopen the 1963 and 1964 applications within the four-year period allowed by the Secretary's regulations, 20 C.F.R. §§ 404.956-404.958, where error or other good cause is shown.
In view of appellant's failure to pursue his administrative remedies following the denial of the earlier applications, the Government contends he may not now relitigate the prior findings, relying on 20 C.F.R. §§ 404.908 and 404.937.
The first regulation provides that the "initial determination [of the Social Security Administration] shall be final and binding upon the party or parties to such determination unless it is reconsidered in accordance with §§ 404.910-404.916, or it is revised in accordance with § 404.956."*fn6
20 C.F.R. § 404.937 states as follows:
§ 404.937 Dismissal for cause.
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). (Emphasis added.)
We agree with the court below that the foregoing regulations are dispositive of appellant's present application. The administrative "res judicata" regulation was followed in Moore v. Celebrezze, 252 F. Supp. 593 (E.D.Pa.1966), aff'd per curiam, 376 F.2d 850 (3d Cir. 1967), and Phillip v. Ribicoff, 211 F. Supp. 510 (E.D.Pa.1962), aff'd per curiam, 319 F.2d 530 (3d Cir. 1963).*fn7
Appellant asks us to disregard the "res judicata" regulation, and to distinguish Moore, on the grounds
(1) that only the Hearing Examiner may dismiss a claim on the basis of the "res judicata" regulation, which evidently was not the case here, and
(2) that, in any event, the regulation should be applied only where a claimant fails to seek review following the holding of a hearing and not where an application is rejected in an "ex parte" determination by the Social Security Administration.
While it is true that the Hearing Examiner in the instant proceeding did not expressly rely on the "res judicata" regulation, this regulation has been applied by the courts, in conjunction with 20 C.F.R. § 404.908 cited above, to bar relitigation of issues previously resolved by administrative decision. Sangster v. Gardner, 374 F.2d 498 (6th Cir. 1967); Lyall v. Cohen, 297 F. Supp. 606 (W.D.Va.1969); Farley v. Gardner, 276 F. Supp. 270 (S.D.W.Va.1967); Norkey v. Celebrezze, 225 F. Supp. 754 (E.D.Pa.1963).*fn8
Furthermore, as noted in appellee's brief, the "res judicata" principle has been applied even where no hearing had been held on the prior claim: Norkey v. Celebrezze, supra ; Rivers v. Celebrezze, 217 F. Supp. 141 (W.D.Va.1963); Salyers v. Celebrezze, 214 F. Supp. 834 (W.D.Va.1962).*fn9
Appellant also seeks reversal of the Secretary's ruling on the basis of the new definition of "disability" under 1965 amendments to the Social Security Act. Prior to 1965, a claimant was entitled to disability benefits if he could show
In 1965 the bracketed language was liberalized to read:
Appellant contends that the 1965 amendments are applicable*fn10 because there has been no final administrative decision on his current claim. In view of the effect of the regulations discussed above, 20 C.F.R. §§ 404.908 and 404.937, a "final administrative decision" does appear to have been made under the particular circumstances here. Assuming appellant's premise to be correct, however, the Hearing Examiner did consider the current application under the 1965 amendments and concluded that appellant did not come within their more beneficent provisions.*fn11 There is substantial evidence in the record to support the Examiner's determination, which has been approved by the Appeals Council and the court below.*fn12
Finally, we find no merit in appellant's contention, raised for the first time at oral argument, that the case should be sent back for further review by the Secretary because appellant was not represented by counsel in the prior applications or in the hearing before the Examiner in the present suit. In the absence of a showing of clear prejudice or unfairness at the agency level proceedings, the lack of counsel is not a sufficient cause for remand. See Steimer v. Gardner, 395 F.2d 197 (9th Cir. 1968).
The order of the district court granting appellee's motion for summary judgment and denying the similar motion of appellant will be affirmed.