The opinion of the court was delivered by: TEITELBAUM
HUBERT I. TEITELBAUM, U.S.D.J.
Robert W. McHenry brought this action for judicial review of the Secretary's final decision that he was not entitled to disability benefits. For the reasons set forth, the decision of the Secretary must be affirmed.
McHenry first applied for disability insurance benefits on April 29, 1982. McHenry alleged he had been disabled since October, 1979 because of a broken neck. The application was denied initially, on May 28, 1982, and on reconsideration, on August 26, 1982. McHenry did not request an administrative hearing.
McHenry again applied for disability insurance benefits on June 7, 1985. McHenry again alleged he had been disabled since October, 1979 because of a broken neck. This application was denied initially and on reconsideration. At McHenry's request, a hearing was held before an Administrative Law Judge (ALJ). The ALJ found 1) the prior denial of benefits was administrative res judicata as to the question of disability through the date of the prior denial; 2) there were no grounds to reopen the prior decision; and 3) during the relevant period, i.e. after the prior denial but before McHenry's insured status expired, McHenry retained the residual functional capacity to perform certain light jobs identified by the vocational expert. The Appeals Council denied McHenry's request for review thereby making the ALJ's decision the final decision of the Secretary.
McHenry then commenced the present action under 42 U.S.C. § 405(g). Before the Court are cross motions for summary judgment.
The Secretary found the prior denial of benefits was administrative res judicata as to the question of disability through the date of the prior denial. McHenry contends administrative res judicata is inapplicable because he did not have a hearing on the prior application. In support of his position, McHenry relies on Dealy v. Heckler, 616 F. Supp. 880 (W.D. Mo. 1984).
The Social Security regulations give the force of finality to the two levels of decisions below the administrative hearing, if such decisions are not appealed. Initial determinations and reconsideration decisions are "binding" unless a timely appeal is filed. 20 C.F.R. §§ 404.905 and 404.921. The Third Circuit has held that prehearing administrative decisions may be final and properly treated as preclusive of a subsequent claim. Domozik v. Cohen, 413 F.2d 5 (3d Cir. 1969) (per curiam). Accord Thompson v. Schweiker, 665 F.2d 936 (9th Cir. 1982); Andrews v. Harris, 635 F.2d 1362 (8th Cir. 1980); Rios v. Secretary, 614 F.2d 25 (1st Cir. 1980); Gaston v. Richardson, 451 F.2d 461 (6th Cir. 1971); Leviner v. Richardson, 443 F.2d 1338 (4th Cir. 1971). See generally 2 Social Security Practice Guide § 18.01  (1986) and Annotation, Applicability of Doctrine of Administrative Res Judicata to Determinations by Secretary HEW that Claimant Not Entitled to Social Security Disability Benefits, 14 A.L.R. Fed. 776 (1973).
Accordingly, the prior denial of benefits is administrative res judicata as to the question of McHenry's disability through the date of the prior denial, August 26, 1982, even though McHenry did not have a hearing on the prior application.
The Secretary found there were no grounds to reopen the prior decision. McHenry had submitted new evidence covering the previously adjudicated period: two reports from McHenry's treating doctor. The Secretary found the new evidence was not material to the prior decision and there was nothing on the face of the prior decision which showed that it was incorrect.
The decision of the Secretary not to reopen a previously adjudicated claim cannot be reviewed by the courts, unless the challenge is based on constitutional grounds. Califano v. Sanders, 430 U.S. 99, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977); Stauffer v. Califano, 693 F.2d 306 (3d Cir. 1982).
Accordingly, the decision not to reopen McHenry's prior decision is not subject to review.
The Secretary found that during the relevant period, i.e., after the prior denial on August 26, 1982 but before McHenry's insured status expired on March 31, 1984, McHenry was not disabled. McHenry contends this determination is not supported by substantial evidence.
McHenry was born June 2, 1935 and was 48 years old on March 31, 1984, the date he last had disability insured status. McHenry has a GED and additional training as a welder. McHenry has worked as a truck driver and a burner in a scrap metal yard, and as a laborer and a welder. In September, 1977 McHenry sustained a fractured dislocation of C1-2 as a result of a fall at work. Following surgery in December, 1977, ...