UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHARLES E. COOPER,
Plaintiff-Appellant,

v.
                                                                      No. 95-2830
SHIRLEY S. CHATER, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of West Virginia, at Beckley.
Mary S. Feinberg, Magistrate Judge.
(CA-94-911-5)

Submitted: October 22, 1996

Decided: November 21, 1996

Before ERVIN, NIEMEYER, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Belinda S. Morton, Fayetteville, West Virginia, for Appellant.
Rebecca A. Betts, United States Attorney, Carol A. Casto, Assistant
United States Attorney, Arthur J. Fried, General Counsel, Randolph
W. Gaines, Acting Principal Deputy General Counsel, A. George
Lowe, Acting Associate General Counsel, George G. Davidson,
Office of the General Counsel, SOCIAL SECURITY ADMINISTRA-
TION, Baltimore, Maryland, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Charles S. Cooper challenges the magistrate judge's Fed. R. Civ.
P. 12(b)(6) dismissal of his action seeking judicial review of the Sec-
retary of Health and Human Services' (the Secretary) decision1 deny-
ing his implied request to reopen his prior claim for disability
insurance benefits under Title II of the Social Security Act. We agree
with the magistrate judge that the district court 2 lacked subject matter
jurisdiction to review the Secretary's decision. Accordingly, we
affirm.

Cooper filed his initial application for Social Security Disability
Insurance Benefits on December 23, 1987, alleging onset of disability
in April 1985. An administrative law judge (ALJ) determined that
Cooper was not disabled from his alleged onset through the date of
the decision. After the Appeals Council denied review, Cooper
appealed to the district court, which affirmed the decision on March
30, 1990.

Cooper filed a second application on January 31, 1992, alleging an
onset of disability on June 1, 1985. After a hearing before an ALJ,
Cooper's onset of disability was determined to begin on January 25,
_________________________________________________________________
1 On March 31, 1995, the Social Security Administration was separated
from the Department of Health and Human Services and became an
autonomous agency. Social Security Independence and Program Im-
provements Act of 1994, Pub. L. No. 103-296, § 106(d)(2), 108 Stat.
1464, 1477. As of that date, Shirley S. Chater, Commissioner of Social
Security, was substituted for Donna E. Shalala, Secretary of Health and
Human Services, as the Defendant in this action. Because all the events
relevant to this action occurred prior to this change, however, we will
refer to the Secretary throughout this opinion.
2 The parties consented to the magistrate judge's jurisdiction under 28
U.S.C. § 636(c)(1) (1994).

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1989. The application was partially dismissed, however, due to
administrative res judicata with respect to the issue of disability prior
to January 25, 1989, because a prior final administrative and judicial
determination had been rendered on the same facts and issues. See 20
C.F.R. § 404.957(c)(1) (1993). The partial dismissal order stated that
it would be improper to reopen the prior final administrative and judi-
cial determination because the ALJ did not find new and material evi-
dence constituting good cause to reopen with respect to the prior
period. See 20 C.F.R. § 404.988 (1993). The Appeals Council denied
review of this partial dismissal on October 5, 1994. On appeal, the
magistrate judge affirmed the dismissal, concluding that the Secre-
tary's application of res judicata was appropriate. Therefore, the dis-
trict court was without jurisdiction to review the Secretary's decision
not to reopen Cooper's prior claim. This appeal followed.

Cooper contends that the application of res judicata was inappro-
priate. The Secretary alleges that the district court properly found it
lacked subject matter jurisdiction to review the Secretary's refusal to
reopen Cooper's earlier disability application. We agree with the Sec-
retary.

Cooper alleges that because his first application alleges onset of
disability in April 1985 and his second application alleges onset of
disability in June 1985, res judicata bar of the second application is
inappropriate. Because the denial of Cooper's disability for the period
April 1985 to January 25, 1989, necessarily included the period from
June 1985 to January 25, 1989, the district court properly found that
the ALJ appropriately applied administrative res judicata to the sec-
ond application. See Meekins v. United Transp. Union, 946 F.2d
1054, 1057 (4th Cir. 1991) (holding that "[r]es judicata precludes the
assertion of a claim after a judgment on the merits in a prior suit by
parties or their privies based on the same cause of action"); Aliff v.
Joy Mfg. Co., 91 F.2d 39, 43-44 (4th Cir. 1990) (noting that claims
precluded by res judicata include those that existed at the time of the
first suit and might have been offered in the same cause of action).

A federal district court may review "any final decision of the Com-
missioner of Social Security [previously Secretary] made after a hear-
ing to which [the claimant] was a party." 42 U.S.C.A. § 405(g) (West
Supp. 1996). Judicial review is limited to the powers provided in

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§ 405(g). See 42 U.S.C.A. § 405(h) (West Supp. 1996). In Califano
v. Sanders, 430 U.S. 99, 105-08 (1977), the Supreme Court held that
neither the Administrative Procedure Act nor § 405(g) confers subject
matter jurisdiction on federal courts to review the Secretary's refusal
to reopen a prior determination. We have held that, under the Sanders
principle, jurisdiction to review exists when, even though the Secre-
tary has purported to rest denial of reopening on principles of admin-
istrative res judicata, a review of the record discloses that the merits
of the claim actually have been reconsidered. McGowen v. Harris,
666 F.2d 60, 65-66 (4th Cir. 1981). Under these limited circum-
stances, the claim is "properly treated as having been, to that extent,
reopened as a matter of administrative discretion under 20 C.F.R.
§ 404.989." Id. at 65.

The relevant question here, therefore, is whether the Secretary,
though purporting to deny reopening on grounds of administrative res
judicata, actually reopened the initial determination for reconsidera-
tion on the merits.

Looking at the decision of the ALJ, it is clear that the Secretary did
not either explicitly or implicitly reopen the case to reconsider the
merits of the first determination. "As we stated in McGowen, the Sec-
retary must be afforded some leeway in making a decision whether
to reopen, so that it may `in fairness look far enough into the prof-
fered factual and legal support to determine whether it is the same
claim.'" Hall v. Chater, 52 F.3d 518, 521 (4th Cir. 1995) (quoting
McGowen, 666 F.2d at 67). The ALJ, hence the Secretary here,
engaged in no more than this simple inquiry. Accordingly, the district
court did not have jurisdiction to review the Secretary's decision and
we affirm its dismissal of the action.

We dispense with oral argument because the facts and the legal
contentions are adequately presented in the materials before the court
and argument would not significantly aid the decisional process.

AFFIRMED

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