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TOLBERT v. SECRETARY OF HEALTH AND HUMAN SERVICES

April 7, 1982

JOSEPH TOLBERT, PLAINTIFF,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT.



The opinion of the court was delivered by: Shadur, District Judge.

MEMORANDUM OPINION AND ORDER

Joseph Tolbert ("Tolbert") seeks review of a decision by the Secretary of Health and Human Services ("Secretary") denying Tolbert disability benefits under Title II of the Social Security Act (the "Act"), 42 U.S.C. § 423. Secretary has moved under Fed.R.Civ.P. ("Rule") 12 (b)(1) to dismiss for lack of subject matter jurisdiction. For the reasons stated in this memorandum opinion and order, Secretary's motion is granted.*fn1

Administrative Proceedings

Tolbert has filed five applications for disability benefits, all of which have been denied:

    (1) Tolbert's February 10, 1971 application
  was denied by an administrative law
  judge ("ALJ"). His request for review
  was denied by the appeals council.
    (2) Tolbert's January 11, 1973 application
  was denied by an ALJ. Again his
  request for review was denied by the
  appeals council.
    (3) Tolbert's August 17, 1976 application
  was denied initially and upon reconsideration.
  Tolbert did not request a
  hearing before an ALJ.
    (4) Tolbert's July 1979 application was
  denied initially and upon reconsideration.
  Tolbert requested a hearing but an ALJ
  dismissed that request on res judicata
  grounds.
    (5) Tolbert's June 16, 1980 application
  was denied initially and upon reconsideration.
  Once again Tolbert's request for a
  hearing was dismissed by an ALJ on res
  judicata grounds. Tolbert's request for
  review was denied by the appeals council.

Tolbert now invokes 42 U.S.C. § 405 (g) to review the denial of his fifth application.*fn2 This is the first time Tolbert has sought judicial review of an administrative denial of his application for disability benefits.

Res Judicata

Under 42 U.S.C. § 405 (g) and (h) this Court can review only final decisions by the Secretary. When the Secretary has once denied an application for disability benefits and a second like application is presented, he has the following options:*fn3

  20 C.F.R. § 404.957: Dismissal of a Request
  for a Hearing — An administrative law
  judge may dismiss a request for a hearing
  under any of the following conditions:
  (c) the administrative law judge decides
    that there is cause to dismiss a hearing
    request entirely or to refuse to consider
    any one or more of the issues because —
    (1) the doctrine of res judicata applies
    in that we have made a previous determination
    or decision under this subpart
    about your rights on the same facts
    and on the same issue or issues, and
    this ...

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