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April 14, 1970

James E. FYFE
Robert H. FINCH, Secretary, Department of Health, Education and Welfare

Gourley, Senior District Judge.

The opinion of the court was delivered by: GOURLEY

In this action for review of a decision by the Department of Health, Education and Welfare denying plaintiff's Application for Disability Insurance Benefits under § 216(i) of the Social Security Act, as amended, 42 U.S.C. § 416(i), and § 223(d) of the Act, as amended, 42 U.S.C. § 423(d), defendant has filed a Motion to Dismiss on the grounds that the Court lacks jurisdiction over the subject matter and that the plaintiff's Complaint fails to state a claim upon which relief can be granted. In accordance with an Order of Court entered upon receipt of the Motion to Dismiss, defendant filed a certified copy of the transcript of the record of proceedings before the Social Security Administration.

 The Court has considered all records before the Secretary, the two hearings before the Court, all pleadings, evaluated and reviewed the briefs of the parties, and it appears two questions are raised:

 B. Motion of the plaintiff to remand the whole proceeding to the Secretary for the purposes of further hearing and consideration of an award made by the Pennsylvania State Workmen's Compensation Board in which said State agency by decision, subsequent to the decision which is before this Court for review, awarded the plaintiff benefits under the Pennsylvania Occupational Disease Act.

 If the second mentioned issue is answered in the affirmative, disposition of the first issue need not be considered at this time.

 Considerably more time has been applied and required by this Court than originally believed necessary to adjudicate the most involved and intricate questions which have been presented in this proceeding. Unfortunately for the plaintiff, there is no relief or assistance which can be given by the United States Courts under the provisions of existing law.

 Does the United States District Court have authority to remand the proceeding to the Secretary for reconsideration in light of the decision of the Workmen's Compensation Board in the Commonwealth of Pennsylvania in which an award was made to the plaintiff for disability?

 No evidence was submitted by plaintiff with his previous claims for disability benefits that he had filed a workmen's compensation claim or that he had evidence in connection therewith that might bear on his Title II claim, and it may be that such evidence could warrant reopening of the plaintiff's prior application or applications. Still, it is not for the Court to pass on this issue in this proceeding. It is an issue that must be first submitted and decided by the Secretary. The only available course of action herein accordingly is for the Court to dismiss the Complaint and for the plaintiff to present his workmen's compensation data to the Secretary with a request that he determine whether reopening of his prior decisions is warranted. Reopening by the Secretary of the plaintiff's first application of January 3, 1964, under Section 404.957 now is, of course, barred because four years have elapsed from the date of the initial denial of that claim. Since the final administrative action on this application was taken on July 7, 1965, i.e., Appeals Council's denial of plaintiff's request for review of the hearing examiner's decision of May 21, 1965, it is apparent that the initial determination was made more than four years ago. But the initial determination on plaintiff's second application, filed on May 2, 1966, was entered on July 28, 1966. The four year period within which this application could be reopened for "good cause" has not yet expired and the plaintiff could still submit his workmen's compensation data for consideration by the Secretary.

 The Social Security Act and the regulations promulgated thereunder contain a detailed procedure for determining benefits including the circumstances under which prior decisions on applications for benefits are res judicata of issues in subsequent applications. This doctrine applies because to hold otherwise would permit a claimant for social security benefits to relitigate a claim after he had failed, as allowed by the Act, to obtain further administrative and Court review of the decision on his claim and that this would run counter to the purposes and provisions of the Act. Domozik v. Cohen, 413 F.2d 5 (3d Cir., decided June 30, 1969); Moore v. Celebrezze, 252 F. Supp. 593 (E.D. Pa. 1966), affirmed 376 F.2d 850 (3d Cir. 1967); Phillip v. Ribicoff, 211 F. Supp. 510 (E.D. Pa. 1962), affirmed 319 F.2d 530 (3d Cir. 1963).

 Turning to this case, it is apparent that with his application for disability insurance benefits of May 2, 1968, his third such application, the plaintiff, as it appeared in Domozik, Moore and Phillip, is attempting to relitigate his earlier disallowed claims and as the Court of Appeals held in the cited cases, this the plaintiff cannot be permitted to do. The adjudications made on his earlier applications are now, under the cited authorities, conclusive of the issues raised in his last application of May 2, 1968, by reason of his failure timely to pursue administrative and judicial remedies available to him following the "final decisions" of the Secretary on his first application for disability insurance benefits of January 3, 1964, and again on his second application of May 2, 1966. In other words, the decision on his first application became binding on the plaintiff through the date of the hearing examiner's decision of May 21, 1965; and the decision on the plaintiff's second application filed on May 2, 1966, which was pursued to a "final decision" of the Secretary but with respect to which Court review was not sought became final and conclusive through the period of June 30, 1967, when his insured status expired. As the plaintiff's May 2, 1968 application could involve only the period prior to the expiration of the plaintiff's insured status which was covered also by the decision on his second application, there is nothing further under the res judicata doctrine as applied by the Court of Appeals for the Third Circuit, that can or need be heard that was not passed on before. Under the circumstances, this Court has no alternative but to dismiss the plaintiff's suit. Domozik v. Cohen, supra.

 This situation is analogous to Mangum v. Celebrezze, (E.D. Pa., Civil No. 34,996) reported in CCH, UIR, Vol. 1, Fed. Para. 16,342 where the Court refused plaintiff's request for remand because the action had not been commenced within the sixty day time limit specified by Section 205(g) of the Act, 42 U.S.C. § 405(g). Thus the Court recognized it had no jurisdiction stating in pertinent part as follows:

"The review by the District Court which subparagraph (g) provides is 'a civil action commenced within sixty days' after notice of the decision sought to be reviewed. The procedure is set out in detail. The provision relating to remand to and reconsideration by the Secretary is clear and unambiguous. The first part provides for a remand of 'the case' upon a motion by the Secretary before answer filed and the second part, without any break, goes on to provide for a remand upon good cause shown, not necessarily upon the initiative of the Secretary. Obviously, both of these procedures are intended as permissible steps in 'the case', that is, of course, a case pending in the District Court. If there is nothing in the District Court but an attempt to invoke its jurisdiction without legal warrant, there is no case even though a paper in the form of a complaint has been filed. In the situation now presented to the court there is no case of which the court has jurisdiction, because the condition which must be satisfied before resort to the court may be had, namely commencement of a suit within 60 days, has never been met."

 Social Security Administration Regulations, however, provide a procedure for the reopening of a claim for benefits which might otherwise be barred from consideration by res judicata. Section 404.957 of Regulation No. 4 of the Social Security Administration (20 C.F.R. § 404.957) provides that upon a showing of "good cause" a claim may be reopened within four years from the date of the notice of the initial determination on an application for benefits; and the submission to the Secretary, after such determination, of "new and material evidence" may be considered "good cause" for such reopening. Section 404.958 (20 C.F.R. § 404.958). A decision to reopen, however, is clearly a discretionary decision and since the hearing examiner further determined in this case that no such "good cause" then existed for reopening the prior denials, there is no basis for any further court ...

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