On appeal from the United States District Court for the Western District of Pennsylvania (C.A. No. 83-3083)
Before: ADAMS, Acting Chief Judge, and HUNTER, Circuit Judges, and STERN, District Judge*fn*
This appeal from a denial of disability benefits focuses primarily on the importance of a claimant's age in the determination whether he can perform substantial gainful activity and therefore is not disabled within the meaning of the Social Security Act. The Social Security Administration (SSA) employs guidelines on disability determinations that consider age as well as other factors; the agency classifies persons between the ages of 45 and 64 in five-year categories. Because the age of the claimant in this proceeding was close to the border between two categories, and because SSA did not consider its own regulation that provides for flexibility in such a situation, the matter will be remanded for further proceedings.
The claimant, Robert H. Kane, was born on February 17, 1925, and his insured status expired on December 31, 1979, 48 days before his 55th birthday.*fn1 He maintains that he was disabled as of 1979, largely because of shrapnel wounds suffered during World War II. In 1979, he complained of weakness and pain in the neck and shoulder, degenerative arthritis of the cervical spine, other musculoskeletal impairments, and cardiovascular disease.
Kane's original application for Title II benefits was denied in 1976. He filed a second application in 1982, that is at issue in this appeal. At his hearing before an Administrative Law Judge (ALJ) on September 26, 1983, Kane testified that he last worked at his job as a furniture salesman in January 1975. He has a 10th grade education. He wears a sling on his left arm, and claims that a tremor in his right hand makes writing difficult. In his testimony, Kane reported pain in his legs and that as a result he cannot walk more than two blocks without resting. These various pains cause him to sleep fitfully, he asserts, and prevent him for sitting for long periods of time. He declared that he does only minor household chores, can lift no more than ten pounds, but can drive a car.
The ALJ ruled that Kane was not disabled within the meaning of the Act, and denied the application for benefits. The Appeals Council affirmed. Kane then challenged the final ruling of the Secretary in a complaint filed in district court. The district court entered summary judgment for the Secretary, and Kane brought this appeal.
Kane did not seek judicial review of the first administrative decision, which became final on September 30, 1976, and SSA argues that because Kane has not alleged any different facts in his latest application the prior decision is res judicata.
However, SSA did not raise this argument either in the administrative proceedings or in the district court. Res judicata is an affirmative defense, Davis v. United States Steel Supply, 688 F.2d 166, 170 (3d Cir. 1982) (in banc), cert. denied, 460 U.S. 1014, 75 L. Ed. 2d 484, 103 S. Ct. 1256 (1983); Fed. R. Civ. Proc. § 8(c), and such a defense may not be presented on appeal if not pleaded in the district court. 18 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure, Jurisdiction § 4405, at 34-35 (1981); Crowder v. Lash, 687 F.2d 996, 1008 (7th Cir. 1982); Exxon Corp. v. Texas Motor Exchange of Houston, 628 F.2d 500, 507 n.3 (5th Cir. 1980).
Even if the issue had been properly presented to this Court, res judicata is not appropriate in this case. Kane's circumstances changed between 1976 and 1979; most notably, he grew older at a time in life when age plays an increasingly significant role in disability determinations. In fact, the ALJ in 1983, who also did not address res judicata, disagreed with the earlier decision. He determined, in contrast to the 1976 ruling, that Kane could not return to his former job.
Moreover, this Court held recently that where the administrative process does not address an earlier decision, but instead reviews the entire record in the new proceeding and reaches a decision on the merits, the agency has effectively reopened the prior claims and waived application of res judicata. Purter v. Heckler, 771 F.2d 682, 695 (3d Cir. 1985). Res judicata therefore does not constitute a bar to Kane's claims.