                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-29-1999

Tobak v Apfel
Precedential or Non-Precedential:

Docket 99-3066




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Recommended Citation
"Tobak v Apfel" (1999). 1999 Decisions. Paper 294.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/294


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Filed October 29, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-3066

MICHAEL J. TOBAK, JR.,
       Appellant

v.

KENNETH APFEL, COMMISSIONER
SOCIAL SECURITY ADMINISTRATION

On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 98-cv-00996)
District Judge: Hon. Donald E. Ziegler

Submitted Under Third Circuit LAR 34.1(a)
October 18, 1999

Before: SLOVITER, MANSMANN, and ROTH,
Circuit Judges

(Filed: October 29, 1999)

       Steven H. Seel
       Tucker Arensberg, P.C.
       Pittsburgh, PA 15222

        Attorney for Appellant

       Sharon M. Fugett
       Social Security Administration
       Baltimore, MD 21235

        Attorney for Appellee
OPINION OF THE COURT

SLOVITER, Circuit Judge.

Michael J. Tobak Jr. appeals from an order of the District
Court dismissing his complaint against Kenneth S. Apfel,
the Commissioner of Social Security ("the Commissioner"),
for lack of subject matter jurisdiction. We have appellate
jurisdiction over the District Court's final order pursuant to
28 U.S.C. S 1291. Upon plenary review, we will affirm.

I.

As the District Court correctly explained, a claimant
seeking disability benefits under Title II of the Social
Security Act, 42 U.S.C. SS 401-433, begins the
administrative process by filing a claim with the Social
Security Administration. See 20 C.F.R. S 404.900; see
generally Califano v. Sanders, 430 U.S. 99, 101 (1977)
(articulating general procedures). If the claim is denied, the
claimant may petition for reconsideration within six months
of the adverse determination. See 20 C.F.R.SS 404.907-
404.908. If that petition is unsuccessful, the claimant may
ask for an evidentiary hearing before an Administrative Law
Judge ("ALJ"), 42 U.S.C. S 405(b), and may seek
discretionary review of an adverse decision of the ALJ from
the Appeals Council, 20 C.F.R. SS 404.967-404.968.
Further, S 205 of the Act authorizes federal judicial review
of "any final decision of the Commissioner of Social Security
made after a hearing to which [the claimant] was a party
. . . ." 42 U.S.C. S 405(g) (1999).1

Res judicata principles apply to administrative as well as
judicial adjudications. United States v. Utah Constr. &
_________________________________________________________________

1. The role of the Secretary of Health and Human Services in social
security cases was transferred to the Commissioner of Social Security
pursuant to the Social Security Independence and Program
Improvements Act of 1994, Pub. L. No. 103-296, 108 Stat. 1464,
effective March 31, 1995. All references to the Secretary are equally
applicable to the Commissioner.

                               2
Mining Co., 384 U.S. 394, 421-22 (1966). However, res
judicata may only be properly applied to preclude a
subsequent claim for disability benefits where the "same"
claimant has filed a previous application based on the
"same" issues and where such prior determination has
become final by virtue of administrative or judicial action.
20 C.F.R. S 404.957(c)(1); Purter v. Heckler, 771 F.2d 682,
691 (3d Cir. 1985). Further, even if res judicata may
properly be applied, the Commissioner has discretion
whether to reopen a prior disability benefits application for
"good cause" within four years of the date of notice of the
initial determination. 20 C.F.R. SS 404.988(b), 404.989. We
have held that a reopening will be found when there is an
administrative review of the entire record and a decision is
reached on the merits of the claim. See Coup v. Heckler,
834 F.2d 313, 317 (3d Cir. 1987).

II.

Tobak first applied for social security benefits on
November 30, 1992. He alleged disability due to back injury
and hypertension beginning April 4, 1986. His application
was denied on March 3, 1993, and Tobak did not appeal.
On October 23, 1995, Tobak filed a second application for
disability benefits, again alleging disability due to back
injury and hypertension beginning April 4, 1986. That
application too was denied, both initially and on
reconsideration. Tobak then filed a request for a hearing
before the ALJ, which was granted. After considering the
evidence presented at the hearing, on May 14, 1997, the
ALJ issued an order in which he found that Tobak was not
disabled within the meaning of the Act. Tobak filed for
review by the Appeals Council. On January 21, 1998, the
Appeals Council notified Tobak of its grant of his request
for review and of its intent to dismiss the request for a
hearing before the ALJ based on the doctrine of res
judicata. The Appeals Council provided Tobak with 30 days
to respond to the notice. Tobak did not respond, and on
April 9, 1998, the Appeals Council vacated the ALJ's
decision and dismissed the request for a hearing. In its
order, the Appeals Council explained that the doctrine of
res judicata applied to the second application and that the

                               3
ALJ should have dismissed Tobak's request for a hearing
on that ground.

On June 8, 1998, Tobak filed this civil action against the
Commissioner in the District Court for the Western District
of Pennsylvania, seeking review of the Appeals Council's
decision to dismiss his second claim based on the doctrine
of res judicata. The Commissioner moved to dismiss the
complaint for lack of jurisdiction. By order dated December
29, 1998, the District Court granted the motion, holding
that it lacked jurisdiction pursuant to 42 U.S.C.S 405(g) to
review the Appeals Council's discretionary dismissal of
Tobak's application. See Tobak v. Apfel, No. 98-996 (W.D.
Pa. Dec. 29, 1998).

III.

Federal court jurisdiction is expressly limited byS 205 of
the Social Security Act. See 42 U.S.C. S 405(g), (h). Section
205(h) precludes judicial review of the "findings of fact or
decision of the Commissioner of Social Security . . . except
as herein provided." 42 U.S.C. S 405(h). Section 205(g)
provides for federal jurisdiction over "any final decision of
the Commissioner of Social Security made after a hearing
to which [the claimant] was a party, irrespective of the
amount in controversy." 42 U.S.C. S 405(g).

It is well settled that federal courts lack jurisdiction
under S 205 to review the Commissioner's discretionary
decision to decline to reopen a prior application or to deny
a subsequent application on res judicata grounds. See
Sanders, 430 U.S. at 107-09; Stauffer v. Califano, 693 F.2d
306, 307 (3d Cir. 1982). As the Supreme Court explained in
Sanders, because an administrative decision declining to
reopen a prior claim or denying a subsequent claim on res
judicata grounds does not require a hearing, it is not a
"final decision . . . made after a hearing" as required for
jurisdiction under S 205(g) of the Act. See Sanders, 430
U.S. at 107-08. The Court has also held that federal courts
do have jurisdiction to entertain constitutional questions,
which are "unsuited to resolution in the administrative
hearing procedures." Id. at 109. Although Tobak's
complaint alleged violation of due process, he apparently

                               4
did not argue that claim before the District Court and does
not argue it on appeal.

Instead, Tobak relies on the undisputed proposition that
federal courts also have jurisdiction to determine whether
res judicata has been properly applied to bar the pending
claim or whether, even though res judicata might properly
have been applied, the prior claim has nevertheless been
reopened. See McGowen v. Harris, 666 F.2d 60, 66 (4th Cir.
1981). Tobak's principal argument is that the ALJ
constructively reopened Tobak's prior application, and that
the Appeals Council could not thereafter dismiss his claim
on res judicata grounds. In other words, Tobak argues the
Appeals Council improperly applied res judicata to Tobak's
second application. We disagree. Even if the ALJ had
reopened Tobak's prior claim,2 the Appeals Council had the
authority to reverse the ALJ's decision. See 20 C.F.R.
S 404.979 (empowering the Appeals Council to "adopt,
modify or reject" the decision of the ALJ). The Appeals
Council's unambiguous rejection of the ALJ's decision and
the Council's dismissal of Tobak's second claim on res
judicata grounds nullified the action of the ALJ. As the
District Court correctly stated, "The ALJ's decision has
been vacated, and, therefore, even if it had constituted a
reopening of the application, it is no longer a decision
which can be evaluated." Tobak v. Apfel, No. 98-996, at 8
(W.D. Pa. Dec. 29, 1998).

This holding is in line with the decisions of the Courts of
Appeals for the Fifth, Sixth, and Seventh Circuits, which
have found in similar cases that the Appeals Council can
dismiss a subsequent application on res judicata grounds
even if an earlier decision of the ALJ expressly or
constructively reopened the prior application. See Ellis v.
Schweiker, 662 F.2d 419, 419-20 (5th Cir. 1981); Harper v.
Secretary of Health and Human Services, 978 F.2d 260,
261-62 (6th Cir. 1992); Johnson v. Sullivan, 936 F.2d 974,
975-76 (7th Cir. 1991). Moreover, contrary to Tobak's
assertions, our decision in Purter v. Heckler, 771 F.2d 682
(3d Cir. 1985), is consistent with this result. It is true that
_________________________________________________________________

2. Given our resolution of this case, we do not decide whether the ALJ
constructively reopened the prior claim.

                               5
in Purter this court reversed the district court's application
of res judicata to a disability claimant whose initial claim
had been denied by the ALJ. We held that the ALJ had
effectively reopened the case when it held a full hearing.
However, as the District Court noted in its comprehensive
opinion, in Purter neither the ALJ nor the Appeals Council
had discussed res judicata. Thus, the district court there
had applied res judicata where the Secretary had not. In
contrast, here the Appeals Council specifically found that
Tobak's claim was barred by res judicata. We agree,
therefore, that Purter is of limited application to the case
before us.

Tobak also argues that the District Court should have
determined "whether the necessary elements of res judicata
were present [and] whether the application of res judicata
would be fair under the circumstances and in line with the
beneficent purposes of the Social Security Act." Appellant
Br. at 19. Tobak is correct that, as we noted above, the
District Court had jurisdiction to determine whether res
judicata was applicable in this case. He is mistaken,
however, in his assertion that the District Court had
jurisdiction to apply equitable administrative res judicata
considerations. Those considerations are committed to the
Commissioner's discretion in deciding whether to reopen a
claim for "good cause," see 20 C.F.R.SS 404.988(b),
404.989, and therefore are not reviewable by the federal
courts, see Sanders, 430 U.S. at 107-08.

We agree with the District Court's decision that res
judicata applies in Tobak's case. Tobak's second application
undisputedly involved the same injuries, the same dates,
and the same issues as his first application. His prior
application became final when he failed to pursue his
administrative appeals from the denial of his application.
Although Tobak did not have a hearing, that was because
he waived his opportunity to request a hearing at that
stage. Therefore, the absence of a hearing on his prior
application does not affect the finality of that proceeding,
nor does it affect our determination that res judicata was
properly applied in this case. See Domozik v. Cohen, 413
F.2d 5, 8 (3d Cir. 1969). The District Court properly held
that it was without jurisdiction to review the

                               6
Commissioner's discretionary decision not to reopen
Tobak's prior claim. For these reasons, we will affirm.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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