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MOORE v. CELEBREZZE

March 29, 1966

L. A. MOORE
v.
Anthony J. CELEBREZZE, Secretary of Health, Education, & Welfare



The opinion of the court was delivered by: DAVIS

 The plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of a final decision of the Secretary of Health, Education, and Welfare denying his application for Social Security disability insurance benefits and for a period of disability.

 The plaintiff, a carpenter by trade, incurred certain back injuries on the job on January 26, 1954. On April 25, 1956, he filed his first application for a period of disability. His claim was initially denied, but he was subsequently granted a hearing before a Social Security Hearing Examiner. The Examiner handed down a decision against the claimant on August 29, 1958. The claimant then appealed to the Appeals Council which denied review of his case on November 14, 1958. Although he was advised by letter that he could institute a civil action in the Federal District Court within 60 days, he did not seek judicial review.

 The plaintiff took no further action until March 5, 1964 when he filed his second application for benefits with the Social Security Administration. Included with the application was a signed statement which read as follows:

 
"Nothing substantially has changed since my last application. I have done absolutely no work since 1/26/54, I still allege I became disabled on 1/26/54 and it is still 'back trouble caused by the accident on 1/26/54' which makes me feel that I am totally disabled."

 This claim was denied on July 22, 1964, and he then requested a hearing before a Hearing Examiner. The Examiner decided adversely to the claimant on January 18, 1965, and the Appeals Council upheld the Examiner on April 5, 1965. The plaintiff then brought suit in this court within the 60 days required by 42 U.S.C. § 405(g).

 The crucial question facing this court is whether the decision on the first application filed in 1956 is res judicata, barring any recovery under the second application submitted in 1964.

 20 C.F.R. § 404.937 provides that the hearing Examiner may dismiss a hearing request under the following circumstance: *fn1"

 
"(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."

 20 C.F.R. § 404.940 reads:

 
"The hearing examiner's decision * * * shall be final and binding upon all parties to the hearing unless it is reviewed by the Appeals Council * * *. If a party's request for review of the hearing examiner's decision is denied or is dismissed, such decision shall be final and binding upon all parties to the hearing unless a civil action is filed in a district court of the United States, as is provided in section 205(g) of the act, or unless the decision is revised * * *."

 It is clear that a claimant may not institute a civil action if he has not exhausted his administrative remedies and that any administrative decision on the first application from which there is no timely appeal stands as res judicata as to all subsequent applications involving the same issues. Hobby v. Hodges, 215 F.2d 754 (10 Cir. 1954); Saxon v. Celebrezze, 241 F. Supp. 152 (W.D.S.C.1965); Norkey v. Celebrezze, 225 F. Supp. 754 (E.D.Pa.1963); Lovingood v. Celebrezze, 218 F. Supp. 834 (S.D.S.C.1963); Rivers v. Celebrezze, 217 F. Supp. 141 (W.D.Va.1963); Salyers v. Celebrezze, 214 F. Supp. 834 (W.D.Va.1962); Eplin v. Celebrezze, 214 F. Supp. 836 (S.D.W.Va.1963); Phillip v. Ribicoff, 211 F. Supp. 510 (E.D.Pa.1962), aff'd per curiam, 319 F.2d 530 (3d Cir. 1963); Tiller v. Celebrezze, 211 F. Supp. 792 (S.D.W.Va.1962); Boles v. Celebrezze, 210 F. Supp. 856 (W.D.Va.1962); Hatter v. Ribicoff, 199 F. Supp. 654 (E.D.Okl.1961).

 Nevertheless, the plaintiff may not simply relitigate the same issues that were presented on the first application or else there would be no end to litigation before the administrative boards and the courts. To allow a claimant to file repeated applications based on the same accident but only for different time periods without any material medical change during those periods is certainly ...


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