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TOWNEND v. COHEN

February 12, 1969

John H. TOWNEND, Plaintiff,
v.
Wilbur COHEN, Secretary, Department of Health, Education and Welfare, Defendant



The opinion of the court was delivered by: MARSH

 MARSH, District Judge.

 On January 30, 1967, plaintiff filed with the Social Security Administration an application to establish a period of disability under § 216(i) of the Social Security Act as amended 42 U.S.C. § 416(i), and an application for disability insurance benefits under § 223 of the Act, 42 U.S.C. § 423, alleging that he became unable to engage in any substantial gainful activity in 1960 *fn1" due to a "lung condition" and "nerves".

 Plaintiff's claims were denied by the Bureau of Disability Insurance, Social Security Administration, and at plaintiff's request a hearing was held before a hearing examiner of the Social Security Administration, Bureau of Hearings and Appeals, who also denied plaintiff's claims. On May 14, 1968, the Appeals Council of the Social Security Administration advised plaintiff that his request for review by it of the hearing examiner's decision was denied; whereupon, pursuant to § 205(g) of the Act, 42 U.S.C. § 405(g), plaintiff commenced this action to obtain a judicial review of the decision of the Secretary *fn2" denying plaintiff's claims. With his answer to plaintiff's complaint, defendant filed a certified copy of the transcript of the record of the proceedings before the Social Security Administration in compliance with § 205(g) of the Act, supra, and subsequently moved for summary judgment.

 Section 205(g), supra, provides in its pertinent part as follows:

 
"As part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive * * *."

 Under § 205(g) and under the Administrative Procedure Act, 5 U.S.C. § 1001 et seq., we are limited to "ascertaining whether on the record as a whole there is substantial evidence to support the Secretary's findings of fact." Goldman v. Folsom, 246 F.2d 776, 778 (3d Cir.1957); Ferenz v. Folsom, 237 F.2d 46 (3d Cir.1956). "Our judicial duty therefore is to satisfy ourselves that the agency determination has warrant in the record, viewing that record as a whole, and a reasonable basis in law. " Boyd v. Folsom, 257 F.2d 778, 781 (3d Cir.1958). See also, Braun v. Ribicoff, 292 F.2d 354, 357 (3d Cir.1961).

 The plaintiff last met the earnings requirements of the Act on June 30, 1964. Therefore, the Social Security Administration could have awarded disability benefits to plaintiff only if he proved that he was disabled on or before that date.

 The record discloses that another disability benefits application, filed by plaintiff on July 8, 1963, was denied upon reconsideration by the Reconsideration Branch of the Administration on April 1, 1964, three months before plaintiff's disability insurance coverage expired. Another application for disability benefits had been filed by plaintiff on June 27, 1962, and it was denied November 23, 1962. Each of these applications alleged plaintiff's impairment to be a lung condition. The plaintiff did not request a hearing on either of these applications.

 A preliminary question to which the court must address itself is whether these prior adverse determinations have a res judicata effect on the instant claim insofar as it relates to an alleged disability which existed prior to the first two applications.

 It is well settled that the decision of a hearing examiner or of the Appeals Council is final and has a res judicata effect on a Social Security claim if it is not appealed within the prescribed time. Hobby v. Hodges, 215 F.2d 754 (10th Cir.1954); Moore v. Celebrezze, 252 F. Supp. 593 (E.D.Pa.1966), affd. per curiam, 376 F.2d 850 (3d Cir.1967). Where, however, a prior application has not been pursued through the hearing stage, it has been held that the bar of res judicata does not attach. Gilliam v. Gardner, 284 F. Supp. 529 (D.S.C.1968). Cf. Staskel v. Gardner, 274 F. Supp. 861, 865 (E.D.Pa.1967).

 In Gilliam v. Gardner, supra, 284 F. Supp. at pp. 532-533, the Court said:

 
"This Court, however, does not feel, in the face of * * * the Regulations established by the Secretary, that res judicata will attach until the claimant has gone through the hearing stage for it is at this time that the claimant can produce evidence, either in the form of documents or testimony. It is also at this stage that the proceedings take the form of litigation, that the claimant is likely to be represented by counsel, and that a decision on the merits is reached. * * *
 
"The true impact of the Hobby, supra, seems to sustain the position that the process must go through at least the hearing stage. This is the only step which is in the nature of a judicial proceeding which would require a taking of evidence, finding of fact and decision based thereon. The findings and decision of the hearing examiner become final either by lapse of time or court review.
 
"The hearing stage is the administrative phase that litigation is anticipated. Therefore, since the doctrine of res judicata seeks to avoid relitigation between the same parties and the same issues, it is only reasonable that it should not attach until there has been a ...

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