Appendix — Califano v. Sanders

APPENDIX SEP 3 1976

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

No. 75-1443

F. DAVID M. HEWS, PETITIONER

—

MISTER SANDERS

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

PETITION FOR CERTIORARI FILED APRIL 9, 1976

CERTIORARI GRANTED JUNE 1, 1976

IN THE

Supreme Court of the united States

OCTOBER TERM, 1976

No. 75-1443

F. DAVID MATHEWS, PETITIONER

—

MISTER SANDERS

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SEVENTH CIRCUIT

TABLE OF CONTENTS

Page

Relevant Docket Entries —........200...0000..00.0.00....... iesinbaisieibhiehhdatant 1

SnITTTTTITTITLsssschcasrssesenippelanenitianinetnghteaccinanaapacetenendaiceamniniansindie 2

Motion To Dismiss Plaintiff's Complaint —.............................. 11

Affidavit of H. Dale Cook with 4 attached exhibits ................ 12

Motion to Lodge Administrative Record ...00.000.00.00.000......... 39

Order of the Court filed May 1, 1975 —..0 nn. 41

Order Allowing Certiorari filed June 1, 1975 —.... a... 42

RELEVANT DOCKET ENTRIES

DATE PROCEEDINGS

5/22/74 Complaint filed... .

9/26/74 Govt. files Motion to Dismiss Pitf’s. Complaint,

with Brief in Support and cer. of ser. thereon.

11/13/74 Pitf. files Reply Brief to Defendant’s Brief in Sup-

port of Motion to dismiss Plaintiff’s Complaint with proof

of service thereon.

11/15/74 Order Entered: The deft’s. Motion to Dismiss is

Granted. This cause is ordered dismissed as this court

is without jurisdiciton over the subject matter of this

suit. (SE) Sharp, Judge. Copies to counsel.

12/13/74 Deft. Mister Sanders files Notice of Appeal of

order of court to dismiss this cause for the reason that

the court is without jurisdiction over the subject matter

of this suit.

12/13/74 Clerk’s Certificate prepared. Copies to counsel and

Ct. of Appeals.

12/13/74 Pitf. files Bond for Costs.

2

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

Cause No. H-74-146

MISTER SANDERS, PLAINTIFF

v8.

CASPER WEINBERGER, United States Secretary of

Health, Education and Welfare, DEFENDANT

COMPLIANT FOR REVIEW OF DECISION OF

SECRETARY OF HEALTH, EDUCATION

AND WELFARE

Plaintiff complains of defendant and says:

1. That plaintiff is and has been a resident of East

Chicago, Lake County, Indiana, within the District and

Division of this Court continuously since a time prior to

June 30, 1962. Plaintiff presently resides at 609 East

150th Street, East Chicago, Indiana.

2. This Court has jurisdiction to hear and determine

this complaint pursuant to the laws of the United States

as set forth in 42 U.S.C. Section 405(g).

3. This action is an appeal from the decision of the

Appeals Council, Department of Health, Education and

Welfare. Social Security Administration.

4. This action is commenced within sixty days of the

decision of said Appeals Council, said decision being dated

April 5, 1974.

5. That said decision of the Appeals Council consti-

tutes the final decision of the Social Security Administra-

tion and the Secretary of Health, Education and Welfare

and all administrative remedies have been exhausted.

6. That the findings of the Appeals Council are not

based upon substantial evidence and are contrary to fact

and law.

7. That the record of the administrative law judge will

disclose error on the face of the evidence upon which his

decision was based.

8. That a copy of the decision of the administrative

law judge is attached hereto, made a part hereof and

marked Exhibit “A”; that a copy of the decision of the

Appeals Council is attached hereto, made a part hereof

and marked Exhibit “B”.

9. That the undersigned has been the attorney for

plaintiff since the date of the decision of the administra-

tive law judge on January 15, 1974, and the undersigned

is entitled to reasonable fees for his services herein.

10. That the date of Exhibit “A”, January 15, 1973,

is in error, the correct date being January 15, 1974.

WHEREFORE, plaintiff prays the Court to review the

decision of defendant, to enter an order consistent with

the Court’s findings, to award appropriate attorney fees

and for all other proper relief.

KOWALSKI, KANZ AND O’DROBINAK

By /s/ William A. Kowalski

WILLIAM A. KOWALSKI

Attorneys for the Plaintiff

723 W. Chicago Avenue

East Chicago, Indiana 46312

(219) 397-7233

4

EXHIBIT A

DEPARTMENT OF

HEALTH, EDUCATION AND WELFARE

SOCIAL SECURITY ADMINISTRATION

BUREAU OF HEARINGS AND APPEALS

ORDER OF DISMISSAL

In the case of

Mister Sanders

(Claimant)

(Wage Earner) (Leave blank if same as above)

Claim for

Period of Disability and

Disability Insurance Benefits

260-36-4656

(Social Security Number)

JURISDICTION AND PROCEDURAL HISTORY

This case is before the undersigned Administrative Law

Judge upon a request for hearing filed on October 3,

1973 by the claimant, Mister Sanders, who disagrees

with the determination of the Bureau of Disability In-

surance, Social Security Administration, that he is not

entitled to a period of disability and disability insurance

benefits under the Social Security Act.

The claimant filed a prior application for a period of

disability and disability insurance benefits on January

30, 1964. The claimant complained of various impair-

ments in that first application that included epilepsy and

“blackout spells” which he alleges caused him to be un-

able te work for about 414, years prior to his application

of January 30, 1964. On June 2, 1965, the claimant was

notified by the Burcau of Disability Insurance Benefits,

Social Security Administration that his application was

denied. He requested reconsideration of this denial and

was subsequently notified by a letter dated October 29,

1965 that the original denial had been affirmed. There-

after, the claimant still being dissatisfied filed a re-

quest for hearing and a hearing was held on December

21, 1965. The Hearing Examiner (now called Admin-

istrative Law Judge) affirmed the Administration on

February 24, 1966 and determined that the claimant

was not entitled to disability insurance benefits or to a

period of disability. The Appeals Council by a letter

dated June 13, 1966 notified the claimant that the deci-

sion of the Administrative Law Judge was the final de-

cision of the Secretary of Health, Education and Wel-

fare and advised the claimant that he had the right to

commence a civil action in the United States District

Court within sixty days to review the decision of the

Administrative Law Judge. The claimant did not file a

civil action for review in the United States District Court.

The claimant filed a second application to establish a

period of disability and for disability insurance benefits

on March 5, 1973, wherein he again alleged epilepsy

and “blackout spells.” On May 25, 1973, the claimant

was notified by the Bureau of Disability Insurance, So-

cial Security Administration, that his application was

denied. He requested reconsideration of this denial and

w2s subsequently notified by letter dated September 28,

1973, that the original denial had been affirmed. There-

after the claimant still being dissatisfied, filed a request

foci hearing on October 3, 1973. Since the decision of

the Administrative Law Judge on February 24, 1966, the

claimant submitted additional medical evidence that in-

dicates th.at the claimant has complained of epilepsy and

“blackout spells” since 1964.

ISSUES AND APPLICABLE LAW

The general issue before the Administrative Law Judge

is whether the claimant is entitled to a period of dis-

6

ability and to disability insurance benefits under the

Act. The specific issue is whether the claimant is en-

titled to have his prior application reopened since more

than four years have elapsed since the decision of the

Administrative Law Judge on February 24, 1966 and

the claimant last met the earnings requirements of the

Social Security Act on June 30, 1962.

20 CFR 404.937 provides:

“The Administrative Law Judge may, on his own

motion, dismiss a hearing request, either entirely

or as to any stated issue, under any of the following

circumstances:

(a) Res judicata. Where there has been a pre-

vious determination or decision by the Secre-

tary with respect to the rights of the same

party on the same facts pertinent to the same

issue or issues which has become final either

by judicial affirmance or, without judicial con-

sideration, upon the claimant’s failure timely

to request reconsideration, hearing, or review,

or to commence a civil action with respect to

such determination or decision . . .”

20 CFR 404.951 provides:

The Appeals Council may deny a party’s request for

review or it may grant review and either affirm or

reverse the Administrative Law Judge’s decision. The

decision of the Appeals Council, or the decision of the

Administrative Law Judge where the request for review

is denied (see 404.947), shall be final and binding upon

all parties to the hearing unless a civil action is filed

in the district court of the United States under the pro-

visions of section 205(g) or section 1869(b) of the Act,

or unless the decision is revised under the provisions

described in § 404.956.

20 CFR 404.957 provides in pertinent part:

CC OE

T

. . . @ decision of a hearing examiner (Administra-

tive Law Judge) which is otherwise final . . . § 404.951

may be reopened:

(c) at any time when

(8) such ... decision . . . is unfavorable, in whole

or in part, to the party thereto but only for the

purpose of correcting . . . error on the face of the

evidence on which such . . . decision was based.

RATIONALE

The Appeals Council on June 13, 1966 specifically ad-

vised the claimant that the decision of the Administra-

tive Law Judge was the final decision of the Secretary

of Health, Education and Welfare and that the claimant

had the right to request a review in the United States

District Court within sixty days of that final decision

pursuant to section 205(g) of the Social Security Act

(42 U.S.C. § 405(g)). The claimant did not file for a

review in the United States District Court and the

decision of the Administrative Law Judge became final

and binding upon the claimant. Since more than four

years have elapsed since the decision became final it can

only be reopened under the provisions of 20 CFR 404.957

(c) (1) through (9). The only possible applicable section

is 20 CFR 404.957(c) (8). I find that there is no error

on the face of the evidence on which the decision of Feb-

ruary 24, 1966 was made.

In order for the claimant to be entitled to a period of

disability or to disability insurance benefits, it was nec-

essary for him to establish that he was under a “dis-

ability” commencing on or prior to June 30, 1962 when

he last met the earnings requirements of the Act. Since

the claimant’s special earnings requirement expired on

June 30, 1962, there is no unadjudicated period subse-

quent to the final decision of the Secretary on February

24, 1966. The parties and the issues are the same

in the both applications and the additional medical evi-

dence is merely repititions and cumulative. The allega-

tions of the claimant and the additional evidence sub-

mitted do not warrant a change in the conclusion reached

in the prior decision. Any further adjudication of these

identical matters is barred under the doctrine of res

judicata.

It is well settled that a claimant may not, by filing re-

peated applications obtain repeated determinations or

decisions with respect to the same issues or renew rights

which he allowed to lapse by his failure to seek adminis-

trative or judicial review within the statutory period for

EXHIBIT B

[SEAL]

DEPARTMENT OF

HEALTH, EDUCATION AND WELFARE

SOCIAL SECURITY ADMINISTRATION

P.O. Box 2518, Washington, D.C. 20018

5 APR 1974

REFER TO IRA-2 BUREAU OF

260-36-4656 HEARINGS AND APPEALS

ACTION OF APPEALS COUNCIL ON REQUEST

FOR REVIEW OF

ADMINISTRATIVE LAW JUDGE’S DISMISSAL

Mr. Mister Sanders

609 East 150th Street

East Chicago, Indiana 46312

Dear Mr. Sanders:

Your request for review of the administrative law

judge’s dismissal has been carefully considered by the

Appeals Council. The Council’s consideration of your

case included the law and regulations applicable to your

claim, the action taken by the administrative law judge

and your reasons for believing that your request for

hearing should not have been dismissed.

The Appeals Council has concluded that the dismissal

action of the administrative law judge is correct. Ac-

10

cordingly, the determination dated February 24, 1966,

stands as the final determination of this Department.

Sincerely yours,

/s/ (Illegible]

Acting Member,

Appeals Council

ce:

Mr. William A. Kowalski

Attorney at Law

East Chicago, Indiana 46312

11

UNITED STATES DISTRICT COURT

FOR THE

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

Hammond Civil No. H 74-146

MISTER SANDERS, PLAINTIFF,

v8.

CASPAR WEINBERGER, Secretary of the United States

Department of Health, Education and Welfare,

DEFENDANT.

MOTION TO DISMISS PLAINTIFF’S COMPLAINT

Comes now the Defendant, Caspar Weinberger, Secre-

tary of the Department of Health, Education and Wel-

fare by his attorney, John R. Wilks, United States At-

torney for the Northern District of Indiana, and moves

the Court to dismiss the Complaint herein on the grounds

that it fails to state a cause of action upon which relief

may be granted and that this Court is without jurisdic-

tion over the subject matter herein, as further appears

from the exhibits and memorandum of law filed here

with.

Respectfully submitted,

JOHN R. WILKS

United States Attorney

By: /s/ Richard A. Hanning

RICHARD A. HANNING

Assistant United States

Attorney

Office of the United States Attorney

Federal Building, Room 312

507 State Street

Hammond, Indiana 46320

12

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

Civil Action No. H 74-146

MISTER SANDERS, PLAINTIFF

vs.

CASPER WEINBERGER, SECRETARY OF HEALTH, EDUCATION,

AND WELFARE, DEFENDANT

AFFIDAVIT OF H. DALE COOK

COUNTY OF ARLINGTON)

) ss

STATE OF VIRGINIA )

I, H. DALE COOK, being first duly sworn, depose and

say as follows:

(1) I am Chairman of the Appeals Council and Direc-

tor of the Bureau of Hearings and Appeals, Social Secur-

ity Administration, Department of Health, Education, and

Welfare. The Bureau of Hearings and Appeals includes,

besides the Appeals Council itself, administrative law

judges, formerly called “hearing examiners,” who hold

hearings on claims arising under title II of the Social

Security Act, as amended, when such hearing is duly re-

quested by a claimant who is dissatisfied with the admin-

istrative determination of his claim.

(2) One of the functions of the Appeals Council is to

pass upon requests for review of hearing decisions ren-

dered by the administrative law judges and to either

grant, deny or dismiss any such request. Under the regu-

lations and practice of the Social Security Administration,

if the Appeals Council denies a timely request for review

of a hearing decision, that decision thereupon becomes the

“final decision” within the meaning of, and subject to, the

provisions for judicial review in section 205(g) of the

Social Security Act, as amended, 42 U.S.C.A. section

405(g), the first sentence of which reads as follows:

13

“Any individual, after any final decision of the

Secretary made after a hearing to which he was a

party, irrespective of the amount in controversy, may

obtain a review of such decision by a civil action

commenced within sixty days after the mailing to

him of notice of such decision or within such further

time as the Secretary may allow. * * *”

(3) It is provided in Social Security Administration

Regulations No. 4, section 404.937 (20 CFR 404.937)

that a request for a hearing may be dismissed, either en-

tirely or as to any stated issue, on the basis of res judi-

cata. Res judicata is defined in the same regulations, sec-

tion 404.937(a) (20 CFR 404.937(a)) as follows:

“Where there has been a previous determination or

decision by the Secretary with respect to the rights of

the same party on the same facts pertinent to the

same issue or issues which has become final either

by judicial affirmance or, without judicial considera-

tion, upon the claimant’s failure timely to request

reconsideration, hearing, or review, or to commence

a civil action with respect to such determination or

decision * * *.” |

Sections 404.937a and 404.937b of Regulations No. 4

(20 CFR 404.937a and 404.937b) direct that notice of any

such dismissal and the right to request review thereof by

the Appeals Council shall be given to a party, and that

such dismissal shall be final and binding on the parties

unless vacated.

(4) It is provided in Regulations No. 4, section 404.

945 (20 CFR 404.945) that where a hearing decision has

been made or a request for hearing dismissed, any party

thereto may request the Appeals Council to review such

decision or dismissal.

(5) I am responsible for the maintenance of Depart-

mental files relating to functions performed by adminis-

trative law judges and the Appeals Council on claims

arising under title II of the Social Security Act, as

amended, including decisions and orders therein and cor-

respondence in reference thereto. The official file main-

14

tained by the Bureau of Hearings and Appeals relating

to the claim of the plaintiff, MISTER SANDERS, under

title II of the Social Security Act, was examined under

my supervision, and to the best of my knowledge and be-

lief said file shows that:

(a) The plaintiff last met the special earnings require-

ments of the Act for disability purposes on June 30, 1962.

(b) On January 30, 1964, the plaintiff filed his first

application for a period of disability and disability in-

surance benefits. This claim was denied initially and on

reconsideration. On February 24, 1966 an administrative

law judge issued a decision holding that the plaintiff was

not entitled to disability insurance benefits or to a period

of disability (Exhibit 1). The plaintiff thereafter re-

quested the Appeals Council to review the decision of the

administrative law judge, and on June 13, 1966 he was

notified that his request for review was denied and that

he had a right to commence a civil action in the United

States District Court within sixty days to review the de-

cision of the administrative law judge (Exhibit 2). The

plaintiff did not file a civil action for review in the United

States District Court.

(ec) On March 15, 1973, the plaintiff filed a second

application for a period of disability and disability bene-

fits. This claim was denied initially and on reconsidera-

tion. Thereafter, on October 3, 1973, the plaintiff filed a

request for hearing. On January 15, 1974, an administra-

tive law judge issued an order dismissing the request

for hearing on the grounds of res judicata (Exhibit 3).

In his complaint, the plaintiff has made reference to the

incorrect dates on the Notice of Dismissal and Order of

Dismissal, which were dated January 15, 1973 instead of

January 15, 1974. On March 5, 1974, the plaintiff re-

quested the Appeals Council to review the action of the

administrative law judge. By letter dated April 5, 1974,

the plaintiff was advised of the Appeals Council’s conclu-

sion that the “dismissal action of the administrative law

judge is correct” and that “the determination dated Feb-

ruary 24, 1966, stands as the final determination of this

Department” (Exhibit 4).

15

(6) On May 22, 1974, the plaintiff filed a civil action

in the United States District Court for the Northern

District of Indiana, Hammond Division.

/s/ H. Dale Cook

H. DALE Cook

Subscribed and sworn to before me this 5th day of Sep-

tember, 1974.

/s/ Marilynn H. Garrison

NOTARY PUBLIC, County of Arlington, State of

Virginia. My Commission Expires November 28,

1976

16

DEPARTMENT OF

HEALTH, EDUCATION, AND WELFARE

SOCIAL SECURITY ADMINISTRATION

BUREAU OF HEARINGS AND APPEALS

NOTICE OF DECISION

PLEASE READ CAREFULLY

If you disagree, in whole or in part, with the enclosed

decision of the hearing examiner, you may request the

Appeals Council to review it. However, your request for

review must be filed within 60 days following the date

shown below.

You, or your representative, may file the request for re-

view at the nearest district office of the Social Security

Administration, with the hearing examiner, or with the

Appeals Council.

Unless you file a timely request for review by the Appeals

Council, you may not obtain a court review of your case

under section 205(g) of the Social Security Act.

This notice and enclosed copy of Hearing Examiner’s

Decision mailed to the claimant on February 24, 1966.

17

DEPARTMENT OF

HEALTH, EDUCATION, AND WELFARE

SOCIAL SECURITY ADMINISTRATION

BUREAU OF HEARINGS AND APPEALS

HEARING EXAMINER’S DECISION

In the case of

Mister Sanders

(Claimant)

Mister Sanders

(Wage Earner)

Claim for

Disability Insurance Benefits

260-36-4656

(Social Security Account Number)

This case is before the Hearing Examiner upon the re-

quest for hearing filed on November 16, 1965, by Mister

Sanders, the claimant, who disagrees with the reconsid-

eration determination of the Social Security Administra-

ton, Department of Health, Education and Welfare, of

which he was notified by letter dated October 29, 1965.

After due notice a hearing was held before the under-

signed Hearing Examiner on December 21, 1965, at Chi-

cago, Illinois. The claimant was present and participated

in the hearing.

The record shows that the earnings requirements for dis-

ability purposes were not in the alleged quarter of dis-

ability and continued to be met through the calendar quar-

ter ending June 30, 1962.

STATEMENT OF CLAIMANT’S ALLEGATIONS

AND TESTIMONY

The determination from which the claimant appeals is

that denying his application for a period of disability

and/or disability insurance benefits filed on January 30,

18

1964, under sections 216(i) and 223 of the Social Secur-

ity Act, as amended (42 USC 416(i) and 423). It was

determined that the claimant’s impairments were not of

sufficient severity as to preclude him from engaging in

any substantial gainful activity from about 41% years

ago, the alleged date of onset of disability, and during

the life of his application filed on January 30, 1964, or at

any time prior to the expiration of the earnings require-

ments, whichever first occurred. In the request for hear-

ing filed by the claimant he states: “I feel I am disabled.

The doctor has not released me to return to work.”

In his application the claimant stated that he was born

on March 18, 1929; that he completed three grades in

school; that he worked in the steel mill as a bricklayer’s

helper; and that he last was able to work in 1960. He

described his impairment as mental condition, trouble

with left abdomen.

In his testimony at the hearing the claimant stated that

his correct date of birth is March 18, 1929. His formal

schooling extended to the fifth grade.

His first employment was field work, including chopping

and hoeing cotton, picking peas. He worked about five

years at a service station pumping gas, fixing flat tires

and washing cars. For a number of years he was a helper

in construction work and then in a foundry. He was a

mobile operator at a steel company. When the furnace

was tapped, he pushed out the slag from underneath the

oven hearth. The vehicle he drove had one pedal and two

levers, one for the left and one for the right. His next

employment until about eight years ago was as a mason

helper, carrying mud and bricks in a wheelbarrow to the

bricklayers. He was terminated because they said he was

not doing his work.

In 1964 he felt pretty good and looked for a job. He

worked three or four weeks breaking steel with a 12

pound hammer. He got weak and had to quit.

With respect to his health, claimant said he probably

has been ill about eight years. He had headaches and saw

Dr. Fleischer who gave him some medicine to take two

19

or three times a day. In 1960 or 1961 he was hospitalized

for removal of hemorrhoids.

He changed to Dr. Broomes who gives him electric treat-

ments for his neck and head. Claimant stated pains go

down from his head to his neck and shoulders.

Claimant’s stomach started giving him trouble about a

year ago. He has a weak place on the left side; when he

eats heavy food it gets full quicker than the other side.

He receives liquid medicine for it from the Clinic Pre-

scription Pharmacy.

Claimant also said that he used to have blackout spells

but does not have them regularly as he used to. He has

not hau any in two or three months.

Lizzie Sanders, wife, testified that claimant used to have

spells once a month when he would black out for a minute

and a half. She would place a cloth on his head and he

would come to. The spells don’t come often now.

SUMMARY OF MEDICAL EVIDENCE

Medical evidence in the record was submitted by St.

Catherine Hospital, Dr. Jacob C. Fleischer, Dr. Edward

L.C. Broomes, Dr. Byron Kilgore and Dr. Peter V.

Westhaysen.

St. Catherine Hospital noted claimant’s admission from

January 14, 1960, to January 20, 1960 for surgical treat-

ment of internal and external hemorrhoids.

Dr. J. C. Fleischer reported whip lash injury to claim-

ant’s cervical spine in September 1961. On January 13,

1965, the diagnosis was neurasthenia and treatment con-

sisted of librium. It was his opinion claimant was able to

work.

Dr. E. L. C. Broomes submitted reports with the most

recent, on June 8, 1965, diagnosing epilepsy, duodenal

ulcer, neurosis, myocarditis; and it is remarked claimant

cannot be gainfully employed.

20

On July 28, 1965, Dr. Byron Kilgore reported psychia-

tric examination indicated claimant was fully oriented as

to time, place, person and situation. There is no past or

current evidence of a psychotic process. There was a

tendency to somatization, denial and occasional resort to

dissociative black-out spells when angry. Most of his com-

plaints are of a functional or psychogenic nature. If

definitive neurological evaluation reveals no organic basis

for any of his symptoms, he could be expected to respond

to therapy and appropriate medication. Musculature that

is probably weakened by relative disuse could be built up

in 3 to 6 months so he could move into full socio-economic

activities.

On September 25, 1965, Dr. P. V. Westhaysen reported

neurological examination revealed no evidence of organic

disease or other disorder of the central nervous system.

He is normally oriented in time and place and his memory

is intact although not completely accurate. He has no

obvious behavior disturbance but his mood suggests mel-

ancholy and some depression. The claimant has no general

physical handicap and is capable of all normal and exer-

tional physical activities. His symptoms suggest illness is

on a psychiatric basis.

The Clinic Pharmacy reported on December 18, 1965, that

claimant has been having prescriptions filled since Octo-

ber of 1964.

STATEMENT OF THE LAW AND ISSUES

The provisions of the Social Security Act prior to. the

1965 amendments allow a person to file for disability in-

surance benefits at any time within nine months before

the first month for which he can be entitled to benefits,

where a waiting period is required, and to file for the es-

tablishment of a period of disability at any time within

three months before the first day that a period of disabil-

ity can begin for him; and benefits cannot be paid, nor a

period of disability established, on an application filed

before the time limits listed above.

21

The 1965 amendments eliminate the requirement that an

individual be under a disability at the time his disability

insurance benefits application is filed and permit entitle-

ment to benefits and/or freeze claims to be determined

(although no benefits are allowable prior to September,

1965) on the basis of an application filed within twelve

months after the period of disability ended. The prospec-

tive life of an application is extended until the final de-

cision by the Secretary, or a decision upon judicial re-

view thereof, if the claimant is found to meet all the

requirements for entitlement to such benefits.

The 1965 amendments continue in effect the special earn-

ings requirements for entitlement to disability insurance

benefits or establishment of a period of disability for an

individual, namely, that the individual must have not

less than 20 quarters of coverage during the 40-quarter

period in which the disability began.

The term “disability” was described in sections 223(c)

(2) and 216(i)(1) of the Act, prior to amendment in

1965, as an inability to engage in any substantial gain-

ful activity by reason of any medically determinable

physical or mental impairment which can be expected to

result in death or to be of long-continued and indefinite

duration. Under the revised definition the impairment, or

impairments, must be of the same degree of severity as

previously, but the 1965 amendments delete from the

definition of disability the requirement that the individ-

ual’s impairment must be one which can be expected to

be of long-continued and indefinite duration or result in

death and substitute the requirement that the impair-

ment has lasted, or can be expected to last, a continuous

period of twelve months, or to result in death.

The term “period of disability” is described as a con-

tinuous period of not less than six full calendar months

in which an individual was under a disability. A period of

disability ends with the close of the second month follow-

ing the month in which the disability ceases.

On the basis of the foregoing evidence the question before

the Hearing Examiner is whether or not the claimant is

22

entitled to disability insurance benefits and to the estab-

lishment of a period of disability under sections 223 (a)

and 216(i) of the Social Security Act, as amended. The

issue is specifically dependent on whether the claimant

was under a disability of the required severity and dura-

tion beginning at a time when the earnings requirement

was met and continuing through the date of the hearing

examiner’s decision and, if the claimant had been under

a disability which has ceased, whether the period of dis-

ability ended no more than twelve months earlier than

the claimant’s application therefor was filed.

EVALUATION OF MEDICAL EVIDENCE AND

VOCATIONAL FACTORS

Whether the claimant satisfied the requirements of the

statute so that he can obtain disability insurance benefits

as well as a disability “freeze” depends upon application

of the facts to the definition of the term “disability” in

the statute. It is the legal obligation of the claimant to

satisfy each test enumerated in the law. It has been held

in Carquerville v. Flemming, 268 Fed. 2d 875, and Dowell

v. Folsom, 157 Fed. Supp. 46, that the burden of proof

rests upon one filing a claim with an administrative

agency to establish that the conditions of eligibility have

been met. Accordingly, the claimant must not only estab-

lish the existence of a medically determinable physical or

mental impairment of the severity ard duration set forth

in the statute, within the period in which the special

earnings requirements are met, but also prove inability to

engage in any substantial gainful activity by reason of

such impairment. Satisfaction of one of these two tests

is insufficient.

The Socia! Security Regulations specify that: “In order

to establish that a medically determinable physical or

mental impairment * * * is present there should be evi-

dence that medically discernible anatomical, physiological,

biochemical or psychological aberrations exist. Allegations

of inability to work as a result of impairment such as

dyspnea (shortness of breath), pain, lack of musculo-

23

skeletal function, decreased vision or hearing, decreased

memory, etc., should be shown to result from structural,

physiological or psychological changes which can be identi-

fied by the use of clinical and laboratory diagnostic tech-

niques. An alleged impairment is medically determinable

only if it can be verified by the use of clinical and labora-

tory diagnostic techniques.” (20 CFR 404.1510(a) ).

Consideration of the submitted medical reports and evi-

dence of record takes into account the diagnoses and opin-

ions offered by doctors. Emphasis must be placed, how-

ever, upon the results of the physical, clinical and labora-

tory findings supporting the diagnosed impairments and

revealing the extent of dysfunction imposed by such diag-

nosed conditions.

In this case the claimant’s earnings record, as pointed out

above, qualifies him for insurance coverage through but

not beyond June 30, 1962. Disability as defined in the

Act must have existed prior to that date in order for the

claimant to be eligible for benefits now. Accordingly, only

the evidence relating to the period before that date may

be considered material.

The medical reports prior to 1965 do not indicate the

existence of epilepsy. Although the June 8, 1965, report

of Dr. Broomes listed subjective symptoms described as

epileptic seizures, no clinical or objective findings were

noted. It is observed that Dr. Westhaysen took note of

claimant’s history of headaches, dizzy spells and “black-

outs” and considering diagnostic procedures including

skull x-rays indicating no pathological intracranial calci-

fication and electroenesphalogram indicating no focal ab-

normality and no seizure discharges, found no disorder of

the central nervous system. The hearing examiner finds

more persuasive the report of Dr. Westhaysen, a special-

ist in neurological surgery. Furthermore, the testimony

of claimant and his wife was that seizures are less fre-

quent and do not occur often now. The evidence indicates

very infrequent spells and that claimant is not prevented

thereby from the reasonably regular performance of

services.

24

It is important, moreover, to note that medical authorities

feel epileptics should be encouraged to perform some

gainful occupation. A Veterans Administration study in-

cludes a detailed review and analysis of actual occupa-

tions, with specific job descriptions of positions success-

fully filled on a full-time basis in a large variety of occu-

pations and crafts, by persons with medically established

epilepsy. (“Occupations of Epileptic Veterans of World

War II and Korean Conflict.” VA Pamphlet 22-6, Depart-

ment of Veterans Benefits, Veterans Administration, Jan-

uary 1960). The job distribution shown by this recent,

comprehensive official survey established that persons with

unquestionable epilepsy are actually continuously employed

and functioning efficiently in substantial gainful activities

including but not limited to numerous named jobs. The list

includes a number of jobs within claimant’s capabilities,

and specifically mentions manual work of various sorts

including service station attendant and laborer which are

within claimant’s work experience.

The claimant has alleged inability to work because of a

number of conditions mentioned in his application and in

the oral testimony. The mere presence of a physical im-

perfection or other ailments does not establish a statutory

disability. As mentioned above, in accordance with the

terms of the statute, he must establish not only the exist-

ence of a medically determinable physical or mental im-

pairment within the period of insured coverage but also

inability to be gainfully employed as a result thereof. The

evidence shows that after removal of hemorrhoids in

January of 1960, and until 1965, the medical attention

received by claimant was from Dr. Fleischer who noted

the injury to claimant’s cervical spine in 1961, his treat-

ment of claimant for neuroasthenia, and his opinion in

1965 that claimant was able to work. The record does not

indicate complaints or treatment of other ailments such

as heart or stomach condition, epilepsy or black out spells

and does not include reports of any other intervening hos-

pitalization or medica! attention. In September of 1965

more than three years after claimant’s “insured status”

under the Act had expired, an examinaiton by Dr. West-

haysen indicated claimant has no general physical handi-

cap and is capable of all normal and exertional physical

activities. Attention was directed to the allegations, oral

testimony and the documentary evidence with respect to

all of the ailments affecting the claimant but those have

not been shown to exist in such severity as to prevent the

reasonably regular performance of services at any time

when he met the special earnings requirement of the Act.

The medical evidence reflects no psychosis or mental im-

pairment to a degree that would prevent claimant from

working. The present era is one in which psychoneurosis

afflicts many people but they work with it. Claimant’s

nervous condition relates to an impairment but does not

meet the standards of the law and regulations with re-

spect to disability in this area. Thus, the regulations de-

scribe conditions as disabling within the meaning of the

Act where there is “Damage to the brain, or brain ab-

normality which has resulted in severe loss of judgment,

intellect, orientation or memory” or “Mental disease (e.g.,

psychosis or severe psychoneurosis) requiring institution-

alization or constant supervision of the affected individ-

ual.” (20 CFR 401.1502(a)). Such intensive care is not

required in the case of claimant but he could benefit from

medication and visits to a psychiatrist and working. A

need for psychotherapy is not incompatible with occupa-

tional activity. Claimant does not have a psychosis and

the medical evidence does not indicate a psychotic process

in the past; Dr. Kilgore noted that he was fully oriented

which was corroborated by Dr. Westhaysen who addi-

tionally remarked that claimant’s memory is intact, he

has no obvious behavior disturbance and there is no evi-

dence of organic disease or other disorder of the central

nervous system. The evidence does not establish that the

claimant was affected sufficiently by reason of a nervous

condition to significantly reduce his ability to perform

remunerative work.

FINDINGS

In the light of the entire evidence and of the foregoing

considerations, the Hearing Examiner finds that the

claimant last met the special earnings requirements of

26

the law on June 30, 1962, and that the claimant has not

established, under the pre-1965 and 1965 definitions of

disability, that he has impairments, either singularly or

in combination, of such severity as to preclude him from

engaging in any substantial gainful activity at any time

when he met the special earnings requirement of the Act.

DECISION

It is the decision of the Hearing Examiner that the claim-

ant is not entitled to disability insurance benefits or to a

period of disability under the pre-1965 law or the 1965

Amendments of the Social Security Act.

/s/ Maxon N. Rapport

MAXON N. RAPPORT,

Hearing Examiner

Date: February 24, 1966

27

Mister Sanders, C1 & W/E

A/N 260-36-4656

EXHIBITS

Exhibit No.

1.

2.

3.

17.

18.

Claimant’s Application for Disability Insurance Ben-

efits filed 1-30-64

Copy of disallowance letter dated 6-2-65

Claimant’s Request for Reconsideration filed 6-7-65

Disability Determination by State Agency dated

10-1-65, affirmed by Social Security Administration

10-26-65

Copy of Notice of Reconsideration Determination

dated 10-29-65

Application for Social Security Account Number

filed 11-14-44

Earnings Record certified 2-5-64

Report of Contact with claimant dated 1-30-64

Report of Contact with claimant dated 10-19-64

Report of Work Activity dated 11-9-64

. Report of Contact with claimant dated 12-18-64

Report of contact regarding date of birth dated

1-15-65

Report of Contact with claimant dated 6-7-65

. Report of Contact with claimant dated 11-16-65

Medical report from St. Catherine Hospital dated

2-10-64 covering treatment from 1-14-60 through

1-20-60

Medical report signed by Dr. J. C. Fleischer dated

2-16-65 covering treatment in September 1961

Report of Contact with Dr. Fleischer dated 1-13-65

Medical report signed by Dr. J. C. Fleischer dated

1-13-65

28

EXHIBI1S (Continued)

Exhibit No.

19. Professional Qualifications of Dr. Jacob C. Fleischer

20. Medical report signed by Dr. H. L. C. Broomes (un-

dated) received 12-23-64 covering treatment

21. Report of Contact with Dr. Broomes dated 1-15-65

regarding treatment from December 1964 through

1-14-65

22. Medical report signed by Dr. E. L. C. Broomes dated

6-8-65 covering treatment from 11-5-65 (sic) through

6-8-65

23. Professional Qualifications of Dr. Edward L. C.

Broomes

24. Case Development Sheet signed by Dr. Luis F. Gon-

zalez dated 5-22-65

25. Professional Qualifications of Dr. Luis F. Gonzalez

26. Medical report signed by Dr. Byron Kilgore dated

7-28-65 covering consultative psychiatric examination

27. Professional Qualifications of Dr. Byron Kilgore

28. Medical report signed by Dr. Peter V. Westhaysen

dated 9-25-65 covering consultative neurological ex-

amination on 8-24-65

29. Professional Qualifications of Dr. Peter V. Westhay-

sen

30. Case Development Sheet signed by Dr. Ira A. Lieb-

son dated 5-22-65

31. Case Development Sheet signed by Dr. Ira A. Lieb-

son dated 10-26-65

32. Professional Qualifications of Dr. Ira A. Liebson

SUBMITTED DURING ORAL HEARING

33. Note from Clinic Pharmacy, Inc. covering prescrip-

tions filled from October 1964 through December

16, 1965

ES SES

29

EXHIBIT #2

DEPARTMENT OF

HEALTH, EDUCATION, AND WELFARE

June 13, 1966

HA:C

Account Number

260-36-4656

ACTION OF APPEALS COUNCIL ON

REQUEST FOR REVIEW

Mr. Mister Sanders

4905 Alexander

East Chicago, Indiana 46312

Dear Mr. Sanders:

Your request for review of the hearing examiner’s deci-

sion has been carefully considered by the Appeals Coun-

cil. The Council’s consideration of your request has in-

cluded all the evidence in your case, the law and regula-

tions applicable to your claim, the hearing examiner’s

evaluation of the facts and the reasoning in his deci-

sion, and your reasons for believing your claim should be

allowed.

The Appeals Council has decided that the decision of the

hearing examiner is correct. Further action by the

Council would not, therefore, result in any change which

would benefit you. Accordingly, the hearing examiner’s

decision stands gs the final decision of the Secretary in

your case.

If you desire a review of the hearing examiner’s deci-

sion by a court, you may commence a civil action in

the district court of the United States in the judicial

district in which you reside within sixty (60) days from

this date. For your information as to the action in the

district court, your attention is directed to section 205

(g) of the Social Security Act, as amended, (section 405

30

(g), Title 42, United States Code). If such action is

commenced, the Secretary of Health, Education, and

Welfare is the proper defendant.

Sincerely yours,

/s/ (Illegible]

[Illegible]

Chairman, Appeals Council

cc: BSB, DDO, Baltimore

D/O, Hammond, Indiana

H/E Rapport, Chicago, Illinois (South)

ITRager :er

fw te ee 5 ere ee

31

EXHIBIT [Illegible]

DEPARTMENT OF

HEALTH, EDUCATION, AND WELFARE

SOCIAL SECURITY ADMINISTRATION

BUREAU OF HEARINGS AND APPEALS

Name and Address of Claimant:

TO: Mister Sanders

609 E. 150th St.

East Chicago, IN

NOTICE OF DISMISSAL

Please Read Carefully

If you disagree, in whole or in part, with the enclosed

order of dismissal, you may request the Appeals Coun-

cil to review it. However, your request for review must

be filed within 60 days following the date shown below.

You, or your representative, may file the request for

review with your local social security office, with the

hearing office, or with the Appeals Council.

This notice and enclosed copy of

order of dismissal mailed

January 15, 1973

cc:

Name and Address of Representative:

32

DEPARTMENT OF

HEALTH, EDUCATION, AND WELFARE

SOCIAL SECURITY ADMINISTRATION

BUREAU OF HEARINGS AND APPEALS

ORDER OF DISMISSAL

In the case of

Mister Sanders

(Claimant)

(Wage Earner) (Leave blank if same as above)

Claim for

Period of Disability and

Disability Insurance Benefits

260-36-4656

(Social Security Number)

JURISDICTION AND PROCEDURAL HISTORY

This case is before the undersigned Administrative Law

Judge upon a request for hearing filed on October 3,

1973 by the claimant, Mister Sanders, who disagrees

with the determination of the Bureau of Disability In-

surance, Social Security Administration, that he is not en-

titled to a period of disability and disability insurance

benefits under the Social Security Act.

The claimant filed a prior application for a period of

disability and disability insurance benefits on January

30, 1964. The claimant complained of various impair-

ments in that first application that included epilepsy and

“blackout spells” which he alleged caused him to be un-

able to work for about 41, years prior to his applica-

tion of January 30, 1964. On June 2, 1965, the claimant

was notified by the Bureau of Disability Insurance Bene-

fits, Social Security Administration that his application

a

33

was denied. He requested reconsideration of this denial

and was subsequently notified by a letter dated October

29, 1965 that the original denial had been affirmed.

Thereafter, the claimant still being dissatisfied filed a

request for hearing and a hearing was held on Decem-

ber 21, 1965. The Hearing Examiner (now called Ad-

ministrative Law Judge) affirmed the Administration on

February 24, 1966 and determined that the claimant was

not entitled to disability insurance benefits or te a period

of disability. The Appeals Council by a letter dated June

13, 1966 notified the claimant that the decision of the

Administrative Law Judge was the final decision of the

Secretary of Health, Education and Welfare and advised

the claimant that he had the right to commence a civil

action in the United States District Court within sixty

days to review the decision of the Administrative Law

Judge. The claimant did not file a civil action for re

view in the United States District Court.

The claimant filed a second application to establish a

period of disability and for disability insurance bene-

fits on March 5, 1973, wherein he again alleged epilepsy

and “blackout spells.” On May 25, 1973, the claimant

was notified by the Bureau of Disability Insurance, So-

cial Security Administration, that his application was

denied. He requested reconsideration of this denial and

was subsequently notified by letter dated September 28,

1973, that the original denial had been affirmed. There-

after the claimant still being dissatisfied, filed a request

for hearing on October 3, 1973. Since the decision of

the Administrative Law Judge on February 24, 1966, the

claimant submitted additional medical evidence that in-

dicates that the claimant has complained of epilepsy and

“blackout spells” since 1964.

ISSUES AND APPLICABLE LAW

The general issues before the Administrative Law Judge

is whether the claimant is entitled to a period of dis-

ability and to disability insurance benefits under the Act.

The specific issue is whether the claimant is entitled to

34

have his prior application reopened since more than four

years have elapsed since the decision of the Administra-

tive Law Judge on February 24, 1966 and the claimant

last met the earnings requirements of the Social Security

Act on June 30, 1962.

20 CFR 404.937 provides:

“The Administrative Law Judge may, on his own

motion, dismiss a hearing request, either entirely or

as to any stated issue, under any of the following

circumstances:

(a) Res judicata. Where there has been a pre-

vious determination or decision by the Secretary

with respect to the rights of the same party on

the same facts pertinent to the same issue or is-

sues which has become final either by judicial

affirmance or, without judicial consideration,

upon the claimant’s failure timely to request

reconsideration, hearing, or review, or to com-

mence a civil action with respect to such de-

termination or decision. . .”

20 CFR 404.951 provides:

The Appeals Council may deny a party’s request for

review or it may grant review and either affirm or

reverse the Administrative Law Judge’s decision. The

decision of the Appeals Council, or the decision of the

Administrative Law Judge where the request for review

is denied (see 404.947), shall be final and binding upon

all parties to the hearing unless a civil action is filed

in the district court of the United States under the

provisions of section 205(g) or section 1869(b) of the

Act, or unless the decision is revised under the provi-

sions described in § 404.956.

20 CFR 404.957 provides in pertinent part:

... a decision of a hearing examiner (Administrative

Law Judge) which is otherwise final . . . § 404.951

may be reopened:

« o e *

ene mene Ae ee

a ee en err em

35

(c) at any time when

(8) such ... decision . . . is unfavorable, in whole

or in part, to the party thereto but only for the

purpose of correcting . . . error on the face of the

evidence on which such . . . decision was based.

RATIONALE

The Appeals Council on June 13, 1966 specifically ad-

vised the claimant that the decision of the Administra-

tive Law Judge was the final decision of the Secretary of

Health, Education and Welfare and that the claimant

had the right to request a review in the United States

District Court within sixty days of that final decision

pursuant to section 205(g) of the Social Security Act

(42 U.S.C. § 405(g)). The claimant did not file for a

review in the United States District Court and the deci-

sion of the Administrative Law Judge became final and

binding upon the claimant. Since more than four years

have elapsed since the decision became final it can only

be reopened under the provisions of 20 CFR 404.957

(ec) (1) through (9). The only possible applicable sec-

tion is 20 CFR 404.957(c) (8). I find that there is no

error on the face of the evidence on which the decision

of February 24, 1966 was made.

In order for the claimant to be entitled to a period of

disability or to disability insurance benefits, it was

necessary for him to establish that he was under a

“disability” commencing on or prior to June 30, 1962

when he last met the earnings requirements of the Act.

Since the claimant’s special earnings requirement ex-

pired on June 30, 1962, there is no unadjudicated pe-

riod subsequent to the final decision of the Secretary on

February 24, 1966. The parties and the issues are the

same in the both applications and the additional medical

evidence is merely repititions and cumulative. The al-

legations of the claimant and the additional evidence

submitted do not warrant a change in the conclusion

reached in the prior decision. Any further adjudica-

36

tion of these identical matters is barred under the doc-

trine of res judicata.

It is well settled that a claimant may not, by filing re-

peated applications obtain repeated determinations or

decisions with respect to the same issues or renew rights

which he allowed to lapse by his failure to seek admin-

istrative or judicial review within the statutory period

for such review. See: Sangster v. Gardner, 374 F 2d

498 (6th Cir. 1967). Domizik v. Cohen, 413 F 2d 5

(8rd ‘Cir. 1969); and Leviner v. Richardson, 443 F 2d

1338 (4th Cir. 1971), and cases cited therein.

FINDINGS

1. That there is no basis for reopening the prior

decision of February 24, 1966.

2. That the prior decision of February 24, 1966 is

final and binding as to the claimant’s application filed on

January 30, 1964.

3. That the prior decision of February 24, 1966 as

to the claimant’s first application filed on January 30,

1964 is res judicata as to his current application filed on

March 5, 1973 since both applications involved the same

parties, issues and facts.

4. That the issue of disability during the previously

adjudicated period is dismissed under 20 CFR 404.937

(a).

DECISION

Now therefore, in view of the foregoing, it is the decision

of the Administrative Law Judge, that the decision of

the Administrative Law Judge on February 24, 1966 on

claimant’s application of January 30, 1964 is final and

will not be reopened, further, pursuant to the provisions

of 20 CFR 404.937(a), the request for hearing filed

herein on October 3, 1973 by the claimant, Mister San-

ders, is hereby dismissed.

/s/ James H. Alesia

JAMES H. ALESIA

Administrative Law Judge

Date: January 15, 1973

37

EXHIBIT 4

DEPARTMENT OF

HEALTH, EDUCATION, AND WELFARE

5 APR 1974

IRA-2

260-36-4656

AIRMAIL

ACTION OF APPEALS COUNCIL ON REQUEST

FOR REVIEW OF

ADMINISTRATIVE LAW JUDGE’S DISMISSAL

Mr. Mister Sanders

609 East 150th Street

East Chicago, Indiana 46312

Dear Mr. Sanders:

Your request for review of the administrative law judge’s

dismissal has been carefully considered by the Appeals

Council. The Council’s consideration of your case in-

cluded the law and regulations applicable to your claim,

the action taken by the administrative law judge and

your reasons for believing that your request for hearing

should not have been dismissed.

The Appeals Council has concluded that the dismissal

action of the administrative law judge is correct. Ac-

cordingly, the determination dated February 24, 1966,

stands as the final determination of this Department.

Sincerely yours,

LINDSAY E. MARRIN

Acting Member,

Appeals Council

cc:

Mr. William A. Kowalski

Attorney at Law

East Chicago, Indiana 46312

Division of Benefit Services, Balt.

BO, East Chicago, In

HO. Chicago, Il (ALJ Alesia)

38

DISTRICT COURT ORDER AND MEMORANDUM

{The District Court Order and Memorandum of Novem-

ber 15, 1974, is printed at pages 13a-14a of the Appendix

to the Petition for Certiorari. ]

COURT OF APPEALS DECISION AND ORDER

[The Court of Appeals Decision and Order of September

12, 1975, are printed at pages la-12a of the Appendix

to the Petition for Certiorari. }

DENIALS OF REHEARING

(The Court of Appeals Orders of December 12, 1974,

denying petition for rehearing and suggestion of re-

hearing en banc, are printed at pages 15a-18a of the Ap-

pendix to the Petition for Certiorari. ]

IN THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 75-1069

MISTER SANDERS, PLAINTIFF-APPELLANT

Vv.

CASPAR WEINBERGER, Secretary of Health, Education

and Welfare, DEFENDANT-APPELLEE

MOTION TO LODGE ADMINISTRATIVE RECORD

Caspar Weinberger, by his undersigned counsel, here-

by requests leave of this Court to lodge the Social Se-

curity Administration administrative record with the

Court in the above-captioned case. In support of this

motion counsel states:

1. Claimant instituted this suit to review a decision

of the Secretary of Health, Education and Welfare deny-

ing his latest application for social security disability

benefits on the ground of res judicata. The district court,

finding that it lacked subject matter jurisdiction, granted

the Secretary’s motion to dismiss. The instant appeal

raises two issues: (1) Whether the Secretary’s decision

declining to reopen claimant’s prior application may be

judicially reviewed; (2) in the event the decision is

subject to judicial review, whether that decision was

arbitrary, capricious, or an abuse of discretion.

2. Should this Court find itself empowered to review

the Secretary’s decision on reopening, the Court may

wish to consider the entire administrative record. Al-

though this record was not filed with the district court,

this Court may, of course, take judicial notice of the

administrative record. Shuttleworth v. City of Birming-

ham, Ala., 394 U.S. 147 (1969); Butler v. Eaton, 141

U.S. 240 (1890); Wilson v. Sigler, 285 F.2d 372 (C.A.

8, 1961).

WHEREFORE, defendant-appellee respectfully re-

quests that this Court grant his motion and allow the

40

Social Security Administration’s administrative file in

the above-captioned case to be lodged with this Court.’

Respectfully submitted,

ROBERT E. Kopp

(202) 739-3389

RICHARD A. OLDERMAN

(202) 739-5325

Attorneys

Appellate Section,

Civil Division

Department of Justice

Washington, D.C. 20530

CERTIFICATE OF SERVICE

I hereby certify that on this 28th day of April, 1975, I

served the foregoing Motion to Lodge Administrative

Record upon counsel for the appellant by causing a

copy to be mailed, postage prepaid, to:

William A. Kowalski, Esquire

Kowalski, Kanz & O’Drobinsk

4732 Indianapolis Boulevard

East Chicago, Indiana 46312

RICHARD A. OLDERMAN,

Attorney

1 The administrative record is presently in the possession of the

Social Security Administration, and we are advised that it will be

available within two weeks from today.

41

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

Chicago, Illinois 60604

May 1, 1975

Before Hon. Thomas E. Fairchild, Chief Judge

No. 75-1069

MISTER SANDERS, PLAINTIFF-APPELLANT,

vs.

CASPAR WEINBERGER, Secretary of Health, Education

and Welfare, DEFENDANT-APPELLEE

Appeal from the United States District Court for the

Northern District of Indiana, Hammond Division

(H 74 C 146)

This matter comes before the Court on the “MOTION

TO LODGE ADMINISTRATIVE RECORD” filed here-

in on April 30, 1975 by counsel for the defendant-appellee.

On consideration whereof,

IT IS ORDERED that said motion be and the same

is hereby GRANTED. The Social Security Administra-

tion’s administrative file in this matter may be lodged,

but not filed, in this Court.

42

SUPREME COURT OF THE UNITED STATES

No. 75-1443

F. DAVID MATHEWS, Secretary of Health,

Education and Welfare, PETITIONER

Vv.

MISTER SANDERS

ORDER ALLOWING CERTIORARI—Filed June 1, 1976

The petition herein for a writ of certiorari to the

United States Court of Appeals for the Seventh Circuit

is granted.

Mr. Justice Stevens took no part in the consideration

or decision of this petition.

W ov. &. Government prixtive orrice; 1976 217752 294