WOODS v. RICHARDSON

PER CURIAM.

This is an appeal from the dismissal of a complaint seeking review of a decision by the Secretary of Health, Education and Welfare refusing to reopen a determination that appellant is not qualified to receive disability benefits under the Social Security Act. Appellant contends that the Secretary's decision was arbitrary and an abuse of discretion within the meaning of the Administrative Procedure Act, 5 U.S.C. § 701 et seq.1 He further contends that this court should order the Secretary to award him disability payments as requested in his application. Appellee asserts that the issues raised by the application before us are res judicata because appellant unsuccessfully presented the same disability claim in two earlier applications and failed to seek judicial review of those decisions within the time provided by statute. 42 U.S.C. § 405(g).2 He also asserts that the Secretary's refusal to reopen the earlier negative determination regarding disability is not reviewable under either the Social Security Act or the Administrative Procedure Act.

This court today decided these issues in Maddox v. Richardson, 464 F.2d 617 (6th Cir. 1972). We there followed our earlier decision in Gaston v. Richardson, 451 F.2d 461 (6th Cir. 1971), which held that issues raised in disability benefit applications which have been raised by earlier applications and decided adversely to the same applicant are res judicata. Accordingly, we do not reach the merits of appellant's claim for disability benefits.

We also decided in Maddox, supra, that the federal courts do have jurisdiction under the Administrative Procedure Act to review the Secretary's refusal to reopen a previous determination which has become final. Accord, Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966); Davis v. Richardson, 460 F.2d 772 (3d Cir. 1972). In this regard, we agree with the District Court's conclusion that the Secretary's action was neither arbitrary nor capricious, and we affirm his dismissal of the complaint.

Appellant first made application in 1967. That application was denied and a hearing was held at which appellant introduced six doctors' reports and two hospital reports. He did not seek review of the hearing examiner's decision denying him benefits. A second application was filed in 1969. A second hearing examiner considered the medical evidence introduced at the previous hearing, and two additional hospital reports submitted at the hearing on the second application, and determined that appellant was, during the relevant period, capable of performing light work of a sedentary nature. Appellant sought review of that decision by the Appeals Council, which denied review and informed him that he had 60 days from the date of the council's decision during which he could seek judicial review of the denial under 42 U.S.C. § 405(g). He did not seek judicial review of that decision.

This application, appellant's third, was filed in 1970. When it was denied, appellant requested a third hearing. The hearing examiner dismissed the request for hearing, stating:

On June 29, 1970, appellant filed a timely request for review by the Appeals Council of the Social Security Administration. Then, on July 17, 1970, apparently too late for consideration by the Appeals Council before its decision, appellant submitted yet another physician's report. On July 27, the Appeals Council, without making reference to the supplemental medical report, affirmed the hearing officer's dismissal of the request for a hearing. On August 7, 1970, a member of the Appeals Council wrote a letter to appellant's attorney which stated, inter alia:

Appellant then filed this action in the District Court. While the case was pending in that court, appellant submitted written statements by two physicians (Buchner and Willingham) to the Secretary. A hearing examiner responded to appellant's attorney by a letter dated December 7, 1970, which acknowledged receipt of additional medical evidence from Doctors Buchner and Donaldson but made no reference to receipt of an October 4, 1970, letter from Dr. Willingham which is a part of the record certified to the District Court by the Social Security Administration. The hearing examiner's letter further stated:

On January 20, 1971, appellant filed a motion in the District Court requesting that the case be remanded to the Secretary for a determination whether the application should be reopened by him. On December 10, 1971, the District Court granted appellee's motion to dismiss the complaint but did not expressly rule upon appellant's motion for remand.

Because it appears that the Secretary has never determined whether a reopening of appellant's application would be justified in light of the most recent documents of record from Doctors Willingham and Buchner, the District Court's review of the Secretary's refusal to reopen was properly limited to consideration of the report of Dr. Donaldson. We, too, have examined the record in this case and the statement of Dr. Donaldson, and we agree that the Secretary did not abuse his discretion in refusing to reopen. Accordingly, the decision of the District Court is affirmed without prejudice to appellant if he should wish to request the Secretary to reopen to consider the statements by Doctors Willingham and Buchner under 20 C.F.R. §§ 404.957 and 404.958.

Affirmed.