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Rogerson v. Secretary of Health and Human Services

filed: March 29, 1989.

MARY E. ROGERSON, APPELLANT,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES



Appeal from the United States District Court for the District of New Jersey-Camden, D.C. Civil Action No. 86-3354

Higginbotham and Becker, Circuit Judges, and Shapiro, District Judge.*fn*

Author: Shapiro

Opinion OF THE COURT

SHAPIRO, District Judge

This is an appeal from an order of the district court granting the motion to dismiss of the defendant Secretary of Health and Human Services (the "Secretary"). Mary E. Rogerson ("Rogerson") sought review of the Secretary's denial of disability insurance benefits on the ground of administrative res judicata. Appellant Rogerson contends that the district court, after finding correctly that res judicata could not apply to a prior application, erroneously dismissed the claim on an inadequate record instead of remanding the case to the Secretary. We do not agree with the district court that giving the Secretary's prior determination res judicata effect was improper nor do we find that application of res judicata violated claimant's constitutional rights. Hence, the dismissal below is affirmed for lack of jurisdiction to review the action of the Secretary.

On September 30, 1975, Rogerson, plaintiff and appellant herein, filed her first application for disability insurance benefits under Title II of the Social Security Act ("Act"); 42 U.S.C. § § 401-433. Rogerson claimed that she was disabled since June, 1975 because of kidney problems, a liver disorder, and high blood pressure. At the time she made this application, Rogerson was 51 years of age.

That application was denied initially, after reconsideration, and after an administrative hearing. Following the hearing, the Administrative Law Judge ("ALJ") concluded on October 21, 1976 that Rogerson was not under a "disability" as defined by the Act and could perform both light and sedentary work. The ALJ also found that Rogerson met the earnings requirement of the Act through the quarter ending September 30, 1978.*fn1 After Rogerson's request for review of the hearing decision by the Appeals Council was denied, she obtained review in the district court; the administrative decision of October 21, 1976 was affirmed on the ground that it was supported by substantial evidence. Rogerson v. Secretary of Health and Human Services, No. 77-1832, Slip Op. (D. N.J. February 10, 1979, Cohen, J.) That decision was final as no appeal was taken.

On September 30, 1980, Rogerson filed a second application for disability benefits. Rogerson stated that she was suffering from hypertension and an enlarged liver and spleen that prevented her from working since September, 1975. The Secretary, denying her application initially, found that Rogerson did not suffer from a severe impairment. Because Rogerson did not seek any review of this determination, it became a final decision of the Secretary.

On October 15, 1985, after consulting counsel, Rogerson made the third application for disability benefits now at issue. She alleged that she had been disabled because of a liver disorder, hypertension, and severe arthritis and that because of her health problems she had been unable to work since April, 1975. Rogerson also stated that her health is now worse than when she previously applied for benefits. The Secretary denied the application initially.

Rogerson sought review of this third denial. In her Request for Reconsideration, she also requested that her "prior application" be reopened because the Secretary's decision was "based on an improper legal standard and contrary to the evidence submitted." The Secretary denied the Request for Reconsideration.*fn2 In the notice of denial, the Secretary refused to open the earlier claim on the ground that the facts remained unchanged and the previous decision was correct. The Secretary had determined when Rogerson's earlier claim was denied that she was not disabled at any time on or before December 31, 1978, the date she was last insured for disability benefits.

Rogerson requested a hearing on the third denial. The ALJ dismissed the Request for a Hearing. In his opinion, the ALJ made clear that the third application was barred by res judicata and the claimant did not meet the conditions required for reopening either the ALJ decision issued October 21, 1976 (on the 1975 application) or the administrative determination of November 8, 1980.*fn3 The ALJ then found that the request for a hearing on the third application should be dismissed pursuant to 20 C.F.R. 404.957 (c) (1) on the ground of administrative res judicata; the denials of the 1975 and 1980 applications were both given res judicata effect.*fn4

Rogerson requested review of the dismissal and submitted additional documentation of her current claims. The Appeals Council, affirming the ALJ's dismissal of Rogerson's hearing request, wrote: ". . . the additional evidence sheds no further light on your condition prior to December 31, 1978, the date you last meet the disability insured status requirements of the Social Security Act." Administrative Record, Tr. at 2. This dismissal of the hearing request was the final action of the Secretary.

On August 27, 1986, Rogerson filed a complaint seeking review of the Secretary's denial of the request for reconsideration and an order compelling the Secretary to reinstate her hearing request. The Secretary moved to dismiss the complaint for (1) failure to state a claim upon which relief can be granted, Fed. R. Civ. P. 12(b) (6); and (2) lack of subject matter jurisdiction to review the Secretary's denial of Rogerson's request for a hearing. Fed. R. Civ. P. 12(b)(1).

The district court held that it had jurisdiction to review the Secretary's denial of a hearing because Rogerson's claim the Secretary violated her due process rights by improperly applying res judicata presented a "colorable constitutional challenge to the Secretary's decision." Rogerson v. Secretary of Health and Human Services, No. 86-3354, Slip Op. (D.N.J. June 17, 1987, Brotman, J.). The court found that the Secretary wrongly applied the doctrine of administrative res judicata because the 1980 administrative determination should not have been considered a prior determination for res judicata purposes. But the court then found that the only issue raised in 1985 not previously addressed in 1976 was Rogerson's claim of arthritis with an onset date of April, 1975 and that no evidence of arthritis prior ...


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