The opinion of the court was delivered by: GOURLEY
This is an action filed pursuant to § 205(g) of the Social Security Act, 42 U.S.C.A. § 405(g), wherein plaintiff seeks judicial review of the decision of the Secretary of Health, Education and Welfare denying his claim filed on April 8, 1969 for disability insurance benefits and for a period of disability under Sections 223 and 216(i) of the Social Security Act, 42 U.S.C.A. §§ 423 and 416(i).
Plaintiff originally filed an application for disability insurance benefits on October 12, 1965, claiming the onset of disability in 1962. This application was denied by the Bureau of Disability Insurance and plaintiff pursued the matter no further until April 8, 1969, when he filed a second application also alleging the onset of disability in 1962.
The second application was disallowed by initial decision of the Bureau of Disability Insurance and upon reconsideration. Upon request, a hearing was granted and conducted by the Hearing Examiner on January 22, 1970. The Hearing Examiner held that plaintiff was not entitled to a period of disability or disability insurance benefits under the Act. Plaintiff filed a request for review of the Hearing Examiner's decision, and the Appeals Council denied the request on February 26, 1970, thereby rendering the determination of the Hearing Examiner the final decision of the Secretary of Health, Education and Welfare.
A Complaint was timely filed in the United States District Court for the Western District of Pennsylvania pursuant to § 205(g), supra. In response, defendant filed an Answer and a certified copy of the administrative transcript. Subsequently, defendant filed a Motion for Summary Judgment. Counsel for the respective parties have filed written briefs in support of their positions on the Motion and have agreed to waive oral argument. Upon review of the administrative record, the pleadings, and the briefs of counsel, the Court is compelled to grant the Motion for Summary Judgment.
"§ 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).
Even though the Hearing Examiner did not expressly rely upon the "res judicata" regulation, the Court, nevertheless, may do so. Domozik v. Cohen, 413 F.2d 5, 7 (3d Cir. 1969). Furthermore, the principle of res judicata may be applied even where no hearing has been held on the prior claim. Domozik v. Cohen, supra, at p. 8.
Plaintiff contends, however, that the "reopening" Regulations, 20 C.F.R. §§ 404.957 and 404.958, rather than the "res judicata" Regulation, are properly applicable to plaintiff's second application for benefits. 20 C.F.R. § 404.957 provides for the reopening of an administrative decision upon "good cause" within four years of the date of notice of the initial determination. 20 C.F.R. § 404.958 provides in relevant part that "good cause" shall be deemed to exist, "where new and material evidence is furnished * * *".
It is undisputed that plaintiff last met the special earning requirements of the Act on June 30, 1964, and, therefore, it was incumbent upon him to establish disability on or before that date. In his first application for disability insurance benefits, filed on October 12, 1965, plaintiff alleged the onset of disability in 1962. The evidence in support of this first application consisted of plaintiff's statements at his disability interview on October 12, 1965, complete records of hospital ...