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July 2, 1976


The opinion of the court was delivered by: HIGGINBOTHAM

 Plaintiff, Andres Saldana, is a 56 year-old uneducated farm laborer who is totally illiterate in any language and understands only Spanish. Saldana brought this action under § 205(g) of the Social Security Act (hereafter "Act"), 42 U.S.C. § 405(g), for review of a final decision of the Secretary of Health, Education and Welfare (hereafter "Secretary"), *fn1" denying plaintiff's second application for social security disability benefits. The plaintiff claims that he has been unable to engage in substantial gainful activity for a continuous period since the end of 1969 as a result of problems with his left knee, stomach, legs and back.

 Saldana filed his initial application for benefits on July 6, 1972. That application was denied. Instead of appealing this adverse determination by filing a request for reconsideration, plaintiff submitted a second application for benefits. The second application was denied both initially and, following a timely request for review, upon reconsideration. The plaintiff was then granted a hearing before the Administrative Law Judge. On December 6, 1974 the Administrative Law Judge determined that Saldana was not entitled to disability benefits. The Appeals Council affirmed, on March 27, 1975, the Administrative Law Judge's decision and, thus, the hearing decision became the final decision of the Secretary. Both parties to this action have filed cross-motions for summary judgment. In the alternative, Saldana requests that the Court remand this case to the Secretary for the taking of additional evidence. The Secretary has moved to dismiss the action on the grounds that it is barred by the doctrine of res-judicata. The Secretary also avers that plaintiff's insured status for disability benefits expired as of March 31, 1970.

 After a thorough review of the administrative record and briefs filed in support of the respective parties' motions, the Court finds good cause to remand this action to the Secretary for the taking of additional evidence in accordance with plaintiff's request. The plaintiff's motion to remand this action is GRANTED. Both parties' motions for summary judgment, as well as the defendant's motion to dismiss, are DENIED. The reasons for these rulings appear hereafter.


 The facts, as briefly developed at the administrative hearing, are easily summarized. The plaintiff, in addition to working as a farm laborer, also labored for a time as a chicken cleaner for a chicken packing establishment (Tr. 24-25). Beginning in 1957, Saldana lived at various times in Puerto Rico and in the United States; he took up permanent residence in this country as of 1968. The plaintiff asserted that he had been unable to work since 1969 because of a hernia and arthritis, as well as back, left knee and stomach pains. (Tr. 25-26, 60). As a result of his physical discomfort, the plaintiff stated that he was unable to do much walking outside of his home; he feared fainting spells (Tr. 28). It appears that Saldana did not do any repair work around the home, or shopping (Tr. 29), and entertained himself by watching television (Tr. 29).

 Plaintiff's testimony on the extent of his illnesses, at least for the period from March 31, 1970 until the date of the administrative hearing, was buttressed by the testimony of a friend, Mr. Demetrio Soto (Tr. 16, 30-38).

 The medical evidence introduced at the administrative hearing consisted of reports from Lancaster General Hospital and Lancaster Osteopathic Hospital. All of the reports were dated after March 31, 1970, the date on which the plaintiff's insured status for disability benefits expired. The medical evidence established that plaintiff, as of 1972, suffered from gastric and duodenal ulcers, an esophageal hernia (Tr. 132-40), and arthritis of the left knee, possibly triggered initially by an accident sustained at the age of 16 (Tr. 73). Prior to the recordation of these physical problems, the plaintiff had difficulty with his gall bladder, necessitating its surgical removal in November, 1971. The post-operative diagnosis was that Saldana's condition was excellent, but later medical records indicate that the stomach or epigastric pain experienced by the plaintiff was not remedied by this surgery (Tr. 134). As of late June, 1973 it appears that Saldana suffered from an active stomach ulcer which was positively responsive to the therapy prescribed by a Dr. Peterson (Tr. 139).

 In addition to the above medical data, the plaintiff asserts that he first visited Dr. Fishman, one of the attending physicians during Saldana's gall bladder surgery, in 1969. Saldana also maintains that part of his stomach was removed as a result of ulcers in 1971.

  There are several arguments advanced in support of the parties' respective motions for summary judgment, dismissal and remand. The Secretary urges: (1) that the administrative determination rendered on the plaintiff's first application for benefits is res judicata on the issues raised by the second application for benefits; (2) that even if the Court finds the doctrine of res judicata inapplicable in this instance, the Secretary's decision must be affirmed, for the administrative record is devoid of any medical evidence that supports plaintiff's testimony that he was totally disabled prior to March 31, 1970; (3) that none of the illnesses complained of would render plaintiff unable to engage in substantial gainful activity; (4) that plaintiff has been unable to demonstrate either good cause for remand or clear prejudice at the administrative hearing despite lack of representation by counsel at the administrative hearing; and, above all, (5) that the Secretary's decision is supported by substantial evidence. On the other hand, the plaintiff contends that: (1) the Secretary's decision is not supported by substantial evidence -- there is no medical evidence prior to March 31, 1970 which contradicts plaintiff's subjective testimony of pain and disability; (2) that the evidence of record establishes that plaintiff was totally disabled prior to March 31, 1970; (3) that the doctrine of res judicata does not bar this action for review, because, in effect, plaintiff's second application for benefits constituted a petition to reopen the denial of his first application in accordance with 20 C.F.R. § 404.957(b); and, finally, (4) that both the availability of "new and material evidence," and the "clear prejudice" resulting from the failure of the Administrative Law Judge to secure all the medical records in support of plaintiff's claim, in the absence of legal counsel, warrant remand of this action for the taking of additional evidence.


 As stated above, the application upon which this lawsuit is based is the plaintiff's second application, filed August 29, 1973. The Secretary asserts that after Saldana failed to appeal the Sept. 13, 1972 denial of his first application, that adverse determination became final and binding on the plaintiff; administrative res judicata allegedly bars consideration of Saldana's request for review by this Court. In Coulter v. Weinberger, 527 F.2d 224 slip op. at 6 (3d Cir. 1975), one panel of judges for the Court of Appeals for the Third Circuit recently considered the operation of administrative res judicata in social security cases. Judge Weis, writing for a unanimous court, found that:

Administrative res judicata is a significant aid to the efficient operation of an adjudicative agency. However, strict adherence to res judicata's restrictive effects is not particularly appropriate in an administrative setting where the claimants are generally not represented by counsel and the process is not based on adversarial concepts.

 Judge Weis also noted that the Social Security Administration, wisely recognizing the need for relaxation of the res judicata rule in an administrative setting, promulgated a regulation which permitted the reopening of initial, reconsidered, or even final decisions of the ...

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