Petition — Harapat v. Harris

If Sirens Coun U. 47

= FILED

ie

79-436 i AUG 13 1979

‘{MICHAm ROBAK, JR., OLER

~~

IN THE

Supreme Court of tiie Gnited States

OCTOBER TERM, 1979

STANLEY HARAPAT,

Petitioner

vs.

PATRICIA R. HARRIS,

Secretary of Health, Education

and Welfare

Respondent.

PETITION FOR WRIT OF CERTIORARI

To The United States Court of Appeals

For The Eighth Circuit

William A. Smoley

RINKE, NOONAN, GROTE &

SMOLEY, LTD.

Counsel for Petitioner

100 South Second Avenue

Sauk Rapids, Minnesota 56379

339-9518 — Bachman Printing, 609 2nd Ave. So., Mpis., MN 55402 — 339-9518

TABLE OF CONTENTS

Page

a el cna ca x wd b's abies a |

EE RIESE eh rr 2

Ns ce we Weck eee see eesees 2

Statutes and Regulations Involved...................... 2

AS 2

Reasons For Granting This Writ ....................... 3

RE AES SE 5

APPENDIX A

Opinion of the United States Court of Appeals,

Tene TTT nn een kee ee eseews A-1

Judgment of the United States Court of Appeals,

ES EI EA A-7

Order of the District Court for the District of

SE A-8

Judgment of the District Court for the District of

acd wcwsacccecce A-9

Order of the District Court for the District of

MI IE OP ne ecw cece cece A-10

Judgment of the District Court for the District of

ee A-11

Recommendation of the United States Magistrate,

er is ee ka cs kw ae00 000 A-12

Decision of Appeals Council, March 24, 1978.......... A-18

ii

Recommended Decision of Administrative Law J udge,

December 23, 1977

Order of the District Court for the District of

pee pirintiee ben oft j A PO TCT ee

Recommendation of the United States Magistrate,

June 20, 1977

ee eS Se Oe DOS SS OD SSS -S SES. 8 69 SOS hee

Statute:

42 U.S.C. § 405(g)

Regulations:

20 C.F. R. § 404.957

20 C. F. R. § 404.958

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1979

STANLEY HARAPAT,

Petitioner

vs.

PATRICIA R. HARRIS,

Secretary of Health, Education

and Welfare

Respondent.

PETITION FOR WRIT OF CERTIORARI

To The United States Court of Appeals

For The Eighth Circuit

To the Honorable, the Chief Justice and Associate Justices of

the Supreme Court of the United States.

Stanley Harapat, the Petitioner herein, prays that a Writ of

Certiorari issue to review the Judgment of the United States

Court of Appeals for the Eighth Circuit entered in the above-

entitled case on May 14, 1979.

Opinions Below

The Opinion of the United States Court of Appeals for the

Eighth Circuit is reported at 598 F.2d 474 (1979) and is printed

in Appendix A hereto, infra, page A-l. The Judgement of the

Eighth Circuit Court of Appeals is printed in Appendix A here-

to, infra, page A-8. The United States District Court for the

District Court of Minnesota did not issue an opinion. The

ce. a

Orders of the District Court are printed in Appendix A hereto,

infra, pages (-8, A-10, and A443. The Entry of Judgments of the

United States District Court for the District of Minnesota are

printed in Appendix A hereto, infra, pages A-9 and A-11.

Jurisdiction

The Judgment of the Eighth Circuit Court of Appeals (Ap-

pendix, infra, page A-8) was entered on May 14, 1979. The

jurisdiction of this Court is invoked under 28 U.S.C. § 1254(1).

Question Presented

Did the Court of Appeals err in ruling that District Court

jurisdiction was barred by administrative res judicata?

Statutes And Regulations Involved

Statute:

42 U.S.C. 405(g), page 515

Regulations:

20 C.F.R. 404.957, page 200

20 C.F.R. 404.958, page 201

Statement

This action was brought in the United States District Court

for the District of Minnesota. Respondent-Secretary of Health,

Education & Welfare sought review of the order of the district

court, Edward J. Devitt, Chief Judge, dated August 29, 1978,

awarding Social Security disability benefits to Petitioner Stan-

ley Harapat. Said appeal was taken pursuant to 28 U.S.C.

§ 1291.

Petitioner is now 58 years of age with limited mental capa-

city (an IQ of 71), with a seventh grade education. He has no

specialized or vocational skills. His work has always been that

of a laborer. His occupational history reveals that he has

worked as a painter, kitchen helper, assembler of aircondition-

ers, operator of a power saw and a farmer. Since World War II

ui

he has had no steady employment, earning only $7,500.00 in

his entire lifetime. Since the early 1950’s, he has not worked

at all. The period of time that is of concern is pre-1953. All

the medical facts that existed as of that date are uncontradic-

ted. They show Petitioner to be totally disabled because of

rheumatoid arthritis.

Petitioner filed his first application for disability benefits on

June 19, 1962 (Tr. 194-197). Said claim was denied initially

(Tr. 188-190), on reconsideration (Tr. 192-193), and finally,

after a hearing, by an administrative law judge on September

30, 1963 (Tr. 60-67). Petitioner was not represented by coun-

sel at any stage of the proceedings and did not request review

with the Appeals Council.

Petitioner filed a second application on August 16, 1965 (Tr.

269-272). Said application was denied (Tr. 273-274) and no

further action was taken. Petitioner was not represented by

counsel. '

Petitioner filed his third application on October 31, 1967

(Tr. 275-278). Petitioner’s application was denied (Tr. 279-

280). No further action was taken. Petitioner was not repre-

sented by counsel.

Petitioner filed his fourth application on July 22, 1968 (Tr.

281-284). Said application was denied initially and upon re-

consideration (Tr. 285-289), no further action was taken. Peti-

tioner was not represented by counsel.

Petitioner filed his fifth application for disability benefits on

April 1, 1970 (Tr. 290-293). Said application was denied (Tr.

294-295). No further action was taken. Petitioner was not

represented by counsel.

Petitioner made his sixth application for disability benefits

on September 22, 1972 (Tr. 296-299). Said application was

denied initially (Tr. 300-304). No further action was taken.

Petitioner was not represented by counsel.

Petitioner’s last application for disability benefits was filed

a a

a

on May 14, 1974 (Tr. 302-305). Said application was denied

both initially and on reconsideration on the grounds of res judi-

cata (Tr. 306-310). Petitioner’s request for a hearing was also

denied on the basis of res judicata (Tr. 50-53). Petitioner then

requested review with the Appeals Council and submitted four

additional medical reports (Tr. 48-49). The Appeals Council

affirmed the dismissal of Petitioner’s request for a hearing (Tr.

47). Petitioner was now represented by counsel.

Petitioner filed a civil action in the United States District

Court for the District of Minnesota on June 8, 1976, pursuant

to Section 205(g) of the Social Security Act as amended (41

U. S. C. § 405(g)). The District Court ordered the case re-

manded to the Secretary for a hearing on the merits. No appeal

to said order was taken by the Secretary. After the hearing on

the merits, the administrative law judge issued a recommended

denial decision on December 23, 1977 (Tr. 24-42). The

Appeals Council adopted the findings and conclusions of the

administrative law judge’s recommended decision and was of

the opinion that the Petitioner was not under a “disability” on

or before March 31, 1953 (said date being the last day Peti-

tioner met the earnings requirement of the Social Security Act.)

On August 29, 1978, the District Court, Edward J. Devitt,

Chief Judge, ordered that Judgment be entered in favor of the

Petitioner.

Reasons For Granting This Writ

This is an important question of federal law which has not

been, but should be, settled by the Supreme Court. The Court

of Appeals decided a federal question in a way in conflict with

applicable decisions of the Supreme Court. The original appeal

to the Court of Appeals was from an order of the District Court

overruling findings of the administrative law judge and the

Appeals Court - these were findings on the merits, not on res

judicata. Moreover, the defense of administrative res judicata

has no application where it is clear that a mistake has been

=

made or where it is clear that a decision is incorrect. The ques-

tion is whether an injustice has been done to Petitioner. Mr.

Harapat is a semi-literate man, with a seventh grade education

and an IQ of 71 with severe physical and mental problems who

was without representation of counsel at the time the Secretary

claims res judicata took effect. The claim of res judicata should

not prevent Mr. Haranat from having his day in Court.

Conclusion

For the foregoing reasons, this Petition for Writ of Certiorari

should be granted.

Respectfully submitted,

William A. Smoley

RINKE, NOONAN, GROTE

& SMOLEY, LTD.

Counsel for Petitioner

100 South Second Avenue

Sauk Rapids, Minnesota 56379

NE ee ee ee ae ee ee ae

APPENDIX

No. 78-1793

Submitted March 15, 1979.

Decided May 14, 1979

Stanley HARAPAT,

Appellee,

v.

Joseph A. CALIFANO, Jr.,

Secretary Health, Education

and Welfare,

Appellant.

Before GIBSON, Chief Judge, and ROSS and McMILLIAN,

Circuit Judges.

ROSS, Circuit Judge.

In this case we consider an appeal by the government in the

tortuous attempt by Stanley Harapat, a social security claim-

ant, to receive social security benefits.

Mr. Harapat first applied for social security benefits on June

29, 1962. This claim was denied initially, on reconsideration

and, eventually, after a hearing. The decision from that hearing,

which was held before an administrative iaw judge, was Septem-

ber 30, 1963. No appeal was taken to the Appeals Council.

Thereafter, Mr. Harapat filed a second application in August

1965, a third in October 1967, and a fourth in July 1968, a

fifth in April 1970, a sixth in September 1972, and a seventh,

and final application, in May 1974. All of the claimant’s appli-

cations were denied.

Mr. Harapat last met the special earnings requirement of the

social security statute on March 31, 1953, and must, therefore,

prove his entitlement to benefits on or before that date. John-

A-2

son v. Richardson, 486 F.2d 1023, 1024 (8th Cir. 1973). Mr.

Harapat alleges that he suffers from severe and debilitating

arthritis as well as other impairments.

Following his most recent rejection, Mr. Harapat filed suit in

the United States District Court in Minnesota on June 8, 1976.

In the complaint Mr. Harapat’s counsel alleged that the “final

decision of the [Social Security] Administration is erroneous

and without any substantial evidence in support thereof* * *.”

In answer to Harapat’s complaint the United States Attorney’s

office filed a motion to dismiss, alleging that the plaintiff had

failed to state a claim and that the court lacked subject matter

jurisdiction to review dismissals based on res judicata.

_ The district court rejected the government’s position and

adopted the recommendation of Magistrate McPartlin that res

judicata should not have been applied in this case. The district

court then ordered a new hearing before an administrative law

judge.

The rehearing was held in September 1977, but once again

Mr. Harapat did not prevail. He appealed that adverse decision

to the district court, and the district court, on the recommenda-

tion of Magistrate McPartlin, reversed the administrative law

judge, conicuding that the denial of benefits was not supported

by substantial evidence on the record as a whole. From this

judgment of the district court entered in favor of Harapat, the

government has appealed to this court.

The government’s primary contention is that the district

court was without jurisdiction to review the case, and secondly,

assuming jurisdiction existed, that the decision of the ALJ was

supported by substantial evidence. We agree that the district

court was without jurisdiction and reverse.

Judicial review of decisions of the Secretary is provided for in

42 U.S. C. § 405(g), (h) in pertinent part as follows:

Judicial review

(g) Any individual, after any final decision of the Secre-

A-3

tary made after a hearing to which he was a party, irrespec-

tive 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. * * *

Finality of Secretary’s decision

(h) The findings and decisions of the Secretary after a

hearing shall be binding upon all individuals who were parties

to such hearing. No findings of fact or decision of the Secre-

tary shall be reviewed by any person, tribunal, or govern-

mental agency except as herein provided. * * *

(Emphasis added.)

The 1963 decision in Mr. Harapat’s case, the decision which

followed the first evidentiary hearing, became final when no

appeal was taken from there to the Appeals Council and to the

courts. Numerous reapplications by Mr. Harapat followed over

the years, however.

In an order dated February 9, 1976, the Secretary denied a

request by Mr. Harapat for a hearing and the denial was af-

firmed by the Appeals Council on April 12, 1976."

In an order accompanying the denial of this hearing request,

the administrative law judge concluded that Mr. Harapat’s

seventh application had been properly denied on the basis of res

judicata pursuant to 20 C. F. R. § 404.937, and also that there

was no basis for reopening the case under the regulations.

Dismissal on res judicata grounds, as well as reopening a

prior decision is provided for in the regulations. Section

404.937 permits a presiding officer to dismiss a hearing request

on grounds of res judicata where there has been a previous

determination by the Secretary with respect to the rights of the

same party on the same facts, relevant to the same issues, where

1 The hearing request had followed an adverse “Reconsideration Deter-

mination” on September 9, 1975, which had in turn follow | the denial

= Mr. Harapat’s seventh, and final, application for benefits in December

74.

A4

that decision has become final either by judicial affirmance, or

without judicial consideration, upon the claimant’s failure to

timely request review.”

Section 404.957 of the regulations also permits, however,

administrative reconsideration of a prior claim. ‘“‘This is in the

form of regulations for reopening of the agency determination

within specified time limits after the date of initial determina-

tion: 12 months as a matter of right and four years ‘upon a

finding of good cause,’ which exists if new material evidence is

provided or specific error are discovered. 20 CFR § § 404.957

(a), (b), 404.958 (1976). Moreover, the regulations permit

reopening ‘[a]t any time’ for the purpose of correcting clerical

errors or errors on the face of relevant evidence. § 404.957(c)

(8).” Califano v. Sanders , 430 U.S. 99, 102, 97 S.Ct. 980, 982,

51 L.Ed.2d 192 (1977).

Contrary to the conclusions of the magistrate and district

court, and contrary to the arguments of the claimant on appeal,

we believe it was error for the district court to have assumed

jurisdiction in this case. Though we reluctantly reach this con-

clusion, Sheehan v. Secretary of Health, Education & Welfare,

593 F2d 323 (8th Cir. 1979), that conclusion is mandated by

Our prior cases.

In Califano v. Sanders, supra, 430 U. S. 99, 97 S.Ct. 980, 51

L.Ed2d 192 the Supreme Court held that the courts are with-

out jurisdiction to review a decision of the Secretary not to

reopen a Claim of benefits. Citing statutory section 42 U. S. C.

§ 405(g), the Court states: “This provision clearly limits judi-

cial review to a particular type agency action, a ‘final decision

2 § 404.937 Dismissal for cause.

presiding office may, on his own motion, dismiss a hearing request,

either entirely or as to any stated issue, under any of the following circum-

stances:

(a) Res judicata. 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 consideration, upon

the claimant's failure timely to request reconsideretion, hearing, or review,

or to commence a civil action with respect to such determination or deci-

sion (see 8 8 404.911, 404.918, 404.946, and 404.951).

A-5

of the Secretary made after a hearing.’ But a petition to reopen

a prior final decision may be denied without a hearing as pro-

vided in § 205.(b), 42 U.S.C. §405(b) (1970 ed., Supp. V); see

Cappadora v. Celebrezze, 356 F.2d 1, 4 (CA2 1966): Ortego v.

Weinberger, 516 F.2d 1005, 1007 (CAS 1075).” Califano v.

Sanders, supra, 430 U.S. at 108 97 S.Ct. at 985.

In the Sanders opinion, the Supreme Court cited with ap-

proval Neighbors v. Secretary of Health, Education & Welfare,

S11 F.2d 80 (10th Cir. 1974), a decision of the Tenth Circuit

Court of Appeals denying that it had jurisdiction to review the

agency’s findings of res judicata under regulation § 404.937.

The issue raised in the present appeal, that is whether the dis-

trict court lacked jurisdiction to entertain a suit under the Act

challenging the dismissal of an application for benefits on the

ground that such application had been denied previously, was

before us in Hobby v. Hodges, 215 F.2d 754 (10th Cir. 1954).

In Hobby we held that, where an applicant under the Act has

filed a second application raising a claim for relief previously

passed upon in an earlier application and where subsequent

application was dismissed without hearing on the ground of res

judicata, there is no “final decision of the Secretary made after

hearing” and hence the court lacks jurisdiction to entertain a

suit challenging such earlier decision. This result has been

reached in other cases, and we think from the record such result

is manifestly required here: It is clear that under the Act and

regulations promulgated thereunder, appellant had sixty (60)

days from the October 2, 1970 decision of the Secretary to seek

judicial review of such decision. Appellant failed to do so, and

the filing of a second and substantially identical application for

disability benefits will not allow him to circumvent this require-

ment of the Act.

Id. at 81 (footnotes omitted). See also Janka v. Secretary of

Health, Education and Welfare, 589 F.2d 365 (8th Cir. 1978);

Sheehan v. Secretary of Health, Education & Welfare, supra,

A-6

593. F.2d 323. (No jurisdiction to review agency’s denial of

extension of time to appeal for lack of “‘good cause.”’)

These precedents are controlling and do not permit the

courts to order new evidentiary hearings when a claim is in this

posture. We share the district court’s empathy for claims like

the present one, but the Supreme Court has said: ‘Congress’

determination so to limit judicial review to the original decision

denying benefits is a policy choice obviously designed to fore-

stall repetitive or belated litigation of stale eligibility claims.

Our duty, of course, is to respect that choice.” Calfano v.

Sanders, supra, 430 U. S. at 108, 97 S.Ct. 986.°

We reject as well the claimants assertion that this court may

not properly address the jurisdictional issue because the govern-

ment waited to appeal that issue to this court until the comple-

tion of the new evidentiary hearing on the merits which was

ordered by the district court. It is clear that the issue of

subject matter jurisdiction may appropriately be raised at any -

time. Baker Oil Tools, Inc. v. Delta Steamship Lines, Inc. , 562

F2d 938, 940 n. 2 (Sth Cir. 1977).

Because we conclude that the district court lacked subject

matter jurisdiction, we need not address that court’s finding

that the administrative law judge’s determinations were

unsupported by substantial evidence, or its decision to award

benefits to Mr. Harapat.

The judgment is reversed and remanded with directions to

dismiss appellee’s complaint.

3 Claimants are free, of course, to challenge decisions of the Secretary on

constitutional grounds: ‘[W] hen constitutional questions are in issue, the

availability of judicial review is presumed, and we will not read a statutory

scheme to take the ‘extraordinary’ stop of foreclosing jurisdiction unless

Congress’ intent to do so is manifested by ‘clear and convincing’ evidence.”

ror v. Sanders, 430 U. S. 99, 109, 97 S. Ct. 980, 986, 51 L. Ed. 2d

4 Although it does not affect the outcome of the case, it should be noted

that the recommendation of the magistrate to remand the case to the

Secretary for a hearing was approved and an order entered the same date

the report was filed. The ten-day period for filing objections to the report,

as required by 28 U.S. C. § 636(b) (1), was not given.

as required by 28 U.S. C. § 636(b) (1), was not given.

A-7

JUDGMENT

UNITED STATES COURT OF APPEALS

For The Eighth Circuit

No. 78-1793

September Term 1978

Stanley Harapat,

Appellee,

VS.

Joseph A. Califano, Jr., Secretary,

Health, Education and Welfare,

Appellant.

APPEAL FROM the United States District Court for the

District of Minnesota.

THIS CAUSE came on to be heard on the original designated

record of the United States District Court for the District of

Minnesota and briefs of the respective parties and was argued by

counsel.

ON CONSIDERATION WHEREOPF, it is now here ordered

and adjudged by this Court, that the judgment of the said Dis-

tict Court, in this cause, be, and the same is hereby, reversed.

And it is further ordered by this Court that this cause be and

is hereby remanded to the said District Court with directions to

dismiss appellee’s complaint in accordance with the opinion of

this Court.

May 14, 1979

/s/ Robert C. Tucker

Clerk

A3

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

THIRD DIVISION

STANLEY HARAPAT

Plaintiff,

vs. ORDER

Civil No. 6-76-199

CASPER WEINBERGER,

Secretary of Health,

Education and Welfare

Defendant.

In accordance with the ruling by the Eighth Circuit Court of

Appeals in this action docket June 11, 1979,

IT IS ORDERED that Plaintiff's complaint be dismissed.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: June 14, 1979

/s/ Edward J. Devitt, Chief Judge

United States District Court

A-9

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

THIRD DIVISION

STANLEY HARAPAT,

Plaintiff,

v. Civil No. 6-76-199

CASPER WEINBERGER,

Secretary of Health,

Education and Welfare,

Defendant.

You are hereby notifited that in the above-entitled case on

the 14th day of June, 1979, filed and entered ORDER (Devitt-J

6-14-79) that Plaintiff's complaint be dismissed. Let Judgment

be entered accordingly.

JUDGMENT FILED AND ENTERED

Harry A. Sieben, Clerk

/s/ Bernadine L. Brown

Deputy Clerk

A-10

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

THIRD DIVISION

Stanley Harapat, Civil 6-76-199

Plaintiff,

vs. ORDER

Casper Weinberger, Secretary

of Health, Education & Welfare,

Defendant.

I accept the recommendation of the United States Magistrate

and direct that judgment be.entered in favor of the plaintiff.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: August 19, 1978.

/s/ Edward J. Devitt, Chief Judge

United States District Court

Filed August 29, 1978

Harry A. Sieben, Clerk

/s/ Bernadine L. Brown

Deputy

A-11

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

THIRD DIVISION

Stanley Harapat, Civil 6-76-199

Plaintiff,

v.

Casper Weinberger, Secretary of

Health, Education & Welfare,

Defendant.

You are hereby notified that in the above-entitled case on

the 29th day of August, 1978, filed and entered Order (Devitt-J

8-29-78) accepting the recommendation of the U. S. Magistrate

and directing that judgment be entered in favor of the plaintff.

Let Judgment be entered accordingly.

JUDGMENT entered

HARRY A. SIEBEN, Clerk

By /s/ Bernadine L. Brown

Deputy Clerk

0 renege

A-12

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

THIRD DIVISION

Stanley Harapat, Civil 6-76-199

Plaintiff,

vs. RECOMMENDATION

Casper Weinberger, Secretary of

Health, Education & Welfare,

Defendant.

RINKE, NOONAN, GROTE & SMOLEY by WILLIAM A.

SMOLEY, 100 South Second Avenue, Sauk Rapids, Minnesota,

attorneys for plaintiff.

ANDREW W. DANIELSON, United States Attorney, and

DOUGLAS A. KELLEY, Assistant United States Attorney, -

Minneapolis, Minnesota, attorneys for defendant.

This is an appeal by the applicant for social security disability

insurance benefits which this court reviewed in June of 1977

and returned for a new hearing in that the transcript furnished

to the court was obviously incomplete and illegible. In Septem-

ber of 1977, the Administrative Law Judge presided at a rehear-

ing in St. Cloud, Minnesota, which was decided adversely to the

petitioner, and again appealed to the District Court. The Secre-

tary has furnished the court with a 452 page record together

with an 85 page transcript of the September 1977 hearing.

The petitioner is 58 years of age and has a seventh grade

education. His work has always been that of a laborer. Since

his discharge from World War II, his only work has been odd

jobs here and there, but none of his employment has been

steady.

At the previous hearing in 1976, from which the petitioner

A-13

appealed, there were a few medical reports presented according

to the record, but the reports were so illegible that they were

meaningless. At the hearing in September of 1977, medical

reports of petitioner’s attending physician, Dr. Robert T. Peter-

son, were presented and entered as exhibits. There are reports

from Dr. Petersen dating back to 1951 indicating previous treat-

ment and subsequent reports of Dr. Petersen to the date of the

hearing. In all of these reports, he has stated that in his opin-

ion, as the attending physician and from his many examina-

tions, Mr. Harapat is totally disabled.

A vocational expert was called by the Administrative Law

Judge to attend the hearing and listen to the testimony. He was

also requested to, prior to the hearing, read the medical reports

that had been submitted. The Administrative Law J udge asked

the vocational expert a number of hypothetical questions.

However, on other hypothetical questions, he intentionally

omitted testimony of the petitioner but gave no reason for so

doing. In part, the vocational expert’s testimony was as follows

(tr. pages 174, 175 & 1976):

Q “~as testifed here. Now, would you assume for the pur-

poses of this question that Mr. Harapat’s testimony, as

given here today, and also the testimony, as given by Mrs.

Harapat, that he’s had pain during this period; the pain

was unrelenting; it prevented him from working; he

stated at that time physically he was not able to mow

lawn; he — climbing stairs, he had to rest going up stairs;

he was unable to work in the garden at that time. He

Stated that back during the pertinent period he was

able he could sit possibly an hour. He reads and writes

very infrequently. And he stated he can’t lift.

“Assume for the purposes of this question that the claim-

ant’s testimony is true. Do you have an opinion as to

whether or not this claimant, Mr. Harapat, during that

OR

> © > © >

A-14

pertinent period possessed any residual transferable skills

based on that particular question?”

“Did you mean based upon the entire testimony or the—”

““No, just based on what I gave you here.”

“———.

“In that question.”

“The only possible thing would be if the headaches were

that severe. But, of course, I believe that he—-

“I didn’t mention headaches, but I mentioned — I meant

to include it.”

“o>.”

“So, thank you.”

“Okay. But he did mention that he has worked with that

type of headaches before. So, providing that they weren’t

any worse, I couldn’t quite be sure from his testimony,

there is nothing in that outline that would preclude his

doing sedentary type work.”

“IT see. And you understand now — just to repeat this

now — he can walk a block, has to rest, can sit possibly an

hour. He can’t mow lawn, can’t climb stairs. The pain is

unrelenting and he’s had to stop all work that he did, and

he has headaches, low back pain, such that it required

medication, as testified here.

“‘Now, based on that question are there any jobs within

the economy you feel this man could do?”

A. “Well, if that istting were literally that he could not sit-

Q. “Just take it all literally.”

inet es Ap Ee nol EA 08 2

————

A-15

“Okay. Then he could not do any jobs at all.”

“*And that would—”

““He would be precluded from doing any type of work.”

, Fe,

“All right. And that’s based on his testimony here. And

you are assuming his testimony is absolutely correct.”

The Administrative Law Judge concluded that the claimant

was not entitled to receive disability insurance benefits because

claimant’s credibility was clearly lacking, and as well, his wife’s

credibility was clearly lacking in their testimony pertaining to

his daily activities and impairments. The Administrative Law

Judge apparently discredited the testimony regarding pain and

disability because the doctor and the witnesses were unable to

present objective medical evidence indicating that the claimant

suffered such impairment as to be disabled from working.

The fundamental issue before us is whether there exists sub-

stantial evidence on the record as a whole to support the finding

that Mr. Harapat can engage in substantial gainful activity.

More specifically, on the present record the issue is whether the

Administrative Law Judge properly discounted the claimant’s

evidence of disabling pain in reaching his decision.

Although evidence of pain suffered by a claimant may be of

necessity subjective in nature, and therefore difficult to eval-

uate, the administrative factfinder must give serious considera-

tion to such evidence even though it is not fully corroborated

by objective examinations and tests performed on the claimant.

See Thorne v. Weinberger, 530 F. 2d 580, 583 (4th Cir. 1976);

Baerga v. Richardson, 500 F. 2d 309, 312 (3d Cir. 1974), cert.

denied, 420 U. S. 931 (1975). While the claimant has the bur-

den of proving that the disability asserted results from a medi-

cally determinable physical or mental impairment, direct med-

ical evidence of the cause and effect relationship between a

physical impairment and the claimant’s subjective pain need not

pene ees

A-16

be produced. Klug v. Weinberger, 514 F. 2d 423, 427 (8th Cir.

1975). There is no question that pain can cause disability

within the meaning of the Social Security Act. Yawitz v. Wein-

berger, 498 F. 2d 956, 960-61 (8th Cir. 1974); Murphy v.

Gardner, 379 F. 2d 1, 7 n. 8 (8th Cir. 1967); Northcutt v. Calt-

fano, slip opinion 77-1977 filed July 20, 1978.

Once proper medical evidence, buttressed by subjective evi-

dence from claimant has shown a sufficiently severe impair-

ment, it must be determined if such impairment, plus claimant’s

educational and work status, preclude any substantial, gainful

activity. Blankenship v. Ribicoff, 206 F. Supp. 165 (S. D. W.

Va. 1962). In cases of this kind, where the claimant alleges

inability to engage in substantial gainful activity, and his person-

al physician, the man in whose charge claimant has entrusted his

health, claims likewise, if examining physicians are to dispute

this contention, they must give the medical basis for their opin-

ions. It is not sufficient to say that a man suffers some form of

physical impairment yet can do “light work”. It must be shown

medically that he can perform the physical activities certain

jobs require without serious aggravation to present physical im-

pairment or to general health. Otherwise, the Hearing Exam-

iner’s findings would amount to pure speculation. Clemochef-

sky v. Celebrezze, 222 F. Supp. 73, 78 (D. C. Pa. 1963); Floyd

v. Finch, 441 F. 2d 73, 83 (6th Cir. 1971). See Massey v. Cele-

brezze, 345 F. 2d 146, 157 (6th Cir. 1965).

The only medical evidence of record of Mr. Harapat’s ability

to do work is favorable to him; his own doctor stated that he

was totally and completely disabled. An Administrative Law

Judge may not draw upon his own inferences from medical re-

ports. Landess v. Weinberger, 490 F. 2d 1187, 1189 (8th Cir.

1974); Willem v. Richardson, 490 F. 2d 1247, 124849 n. 3

(8th Cir. 1974). Nor is a vocational expert qualified to inter-

pret diagnosis or to pass on the truth of subjective complaints.

Hamlet v. Celebrezze, 238 F. Supp. 676 681 (E. D. S.C. 1965;

A-17

Lund v. Weinberger, 520 F. 2d 782 (8th Cir. 1975).

Since there is no factual basis in the record upon which the

Administrative Law Judge could reject testimony, Johnson v.

Richardson, 486 F. 2d 1023 (8th Cir. 1973), his testimony,

which may serve as the basis of a disability award, Timmerman

v. Weinberger, S10 F. 2d 239, 443 (8th Cir. 1975); Yawittz v.

Weinberger, supra; annot. 23 A. L. R. 3d 1034 (1969); Lund v.

Weinberger, supra, stands unrebutted. None of the medical

reports are inconsistent.

I believe the rejection of the Administrative Law J udge of

the testimony of Mr. Harapat and his wife is arbitrary and con-

trary to substantial evidence in the record. While credibility

determinations are for the Secretary, there should be found in

the record some basis for disbelieving such critical testimony. I

find none. Lund v. Weinberger, supra; Richardson v. Perales ,

402 U.S. 389, 401 (1971).

The Secretary’s denial of Mr. Harapat’s claim is not sup-

ported by substantial evidence in the record as a whole. ‘

therefore, recommend reversal of the judgment of the Admini-

strative Law Judge and direct that judgment be entered in favor

of the plaintiff herein.

DATED: August 17, 1978.

/s/ GEORGE G. McPARTLIN

United States Magistrate

All objections must be filed with the Clerk of Court, St. Paul,

Minnesota, within 10 days of the filing of this Recommendation.

A-18

DEPARTMENT OF

HEALTH, EDUCATION, AND WELFARE

SOCIAL SECURITY ADMINISTRATION

BUREAU OF HEARINGS AND APPEALS

DECISION OF APPEALS COUNSIL

In the case of Claim for

Stanley Harapat Period of Disability and

Disability Insurance Benefits

720-18-0909

By order dated June 20, 1977, the United States District

Court for the District of Minnesota remanded this case (Civil

Action No. 6-76-199) to the Secretary of Health, Education,

and Welfare. Thereafter, the Appeals Council remanded the

case to an administrative law judge and a supplemental hearing

was held on September 27, 1977.

On December 23, 1977, a recommended hearing decision was

issued to which exceptions have been received.

Counsel contends that the medical reports submitted by the

claimant’s treating physician, Robert Peterson, M.D., when con-

sidered with the other evidence of record, establishes that the

claimant was disabled prior to March 31, 1953, when special

insured status requirements were last met. He contends that Dr.

Peterson’s conclusion that the claimant by his impairments, in-

cluding arthritis, should have more weight that that of J. S.

Abbott, M. D., who examined the claimant on only one occa-

sion in 1952 and found no joint disturbance.

The decision of the administrative law judge shows that he

considered the reports of both Dr. Peterson and Dr. Abbott and

the other evidence of record in reaching the conclusion that the

claimant was not disabled prior to March 31, 1953. The Coun-

cil is persuaded that the evidence of record supports that con-

clusiun.

A-19

Counsel states that the vocational expert testified that the

claimant may be able to perform a sedentary type job but that

he felt the claimant could not perform any work in the econ-

omy. He further notes that the possibility of obtaining employ-

ment must be rezsonable, not merely conceivable.

A review of the transcript of the hearing reveals that the

vocational expert’s statement that the claimant would be pre-

cluded from doing any type of work was based on the testi-

mony of the claimant and his wife about the limitations im-

posed by his impairments. When the vocational expert was

asked other questions by the administrative law judge, he testi-

fied that the claimant would be able to perform sedentary work

such as cementer or bench worker in the optical goods industry

or wire worker in the electronics industry. The statements of

the vocational expert were based on different assumptions and

therefore do not conflict.

Counsel notes the testimony of the claimant and his wife

about the claimant’s headaches and pain. He mentions that

the administrative law judge made several comments regarding

their testimony and states that the administrative law judge is

required to accept the testimony as a part of the claimant’s

evidence.

It is the duty of the administrative law judge to evaluate and

weigh the credibility of the witnesses. The administrative law

judge evaluated the testimony in this case and found that the

claimant’s credibility was lacking with respect to his testimony

about his daily activities and impairments and his wife’s credi-

bility was lacking with respect to her testimony about the

claimant’s impairments.

The Council has also received a letter from the claimant’s

daughter, Ms. Kathy Harapat, in which she notes that the claim-

ant is a disabled veteran and that Dr. Peterson stated as far back

as 1949 that the claimant was totally disabled. She also

comments on his impairments and daily activities.

A-20

The Apeals Council has considered all the evidence in light

of the comments from counsel and Ms. Harapat and is of the

opinion that the record supports the conclusions in the recom-

mended decision issued on December 23, 1977. It is the deci-

sion of the Appeals Council that the claimant is not entitled to

a period of disability or to disability insurance benefits under

the provisions of sections 216(i) and 223, respectively, of the

Social Security Act, as amended.

APPEALS COUNCIL

/s/ Joseph E. Doneghy, Member

/s/ Marshall C. Gardner, Member

Date: March 24, 1978

A-2]

DEPARTMENT OF

HEALTH, EDUCATION, AND WELFARE

SOCIAL SECURITY ADMINISTRATION

BUREAU OF HEARINGS AND APPEALS

RECOMMENDED DECISION UPON

ORDER OF THE APPEALS COUNCIL

In the case of Claim for

Stanley Harapat Period of Disability and

Disability Insurance Benefits

72-18-0909

This case is before the undersigned Administrative Law Judge

pursuant to a remand Order issued by the Honorable Edward J.

Devitt on June 20, 1977, pursuant to a recommendation by

United States Magistrate George C. McPartlin. Judge Devitt

stated in his Order that the case was to be returned immediately

to the Secretary for a hearing on the merits.

After due notice a hearing was held on September 27, 1977, in

St. Cloud, Minnesota. Howard S. Feldman, Ed.D., vocational

expert, Dorothy Harapat, claimant’s wife, and the claimant

were present and participated in the hearing. Mr. Harapat was

represented by Orrin V. Rinke, attorney at law.

PROCEDURAL HISTORY

Stanley Harapat, the claimant, initially filed an application

for disability insurance benefits on June 29, 1962, alleging

inability to work since July or August 1950 because of a ner-

vous condition, back condition and rheumatoid arthritis. He

was denied benefits initially and upon reconsideration. There-

upon he requested a hearing before an Administrative Law

Judge. Although advised of his right to counsel claimant was

not represented at the hearing. On September 20, 1963, Hear-

ing Examiner, Thomas E. Wiley, issued a decision finding that

A-22

the claimant was not entitled to a period of disability or to an

award of disability insurance benefits. The claimant did not

seek Appeals Council review of the Hearing Examiner’s decision.

Mr. Harapat then filed his second, third and fourth applica-

tions for disability insurance benefits on August 16, 1965, Oct-

ober 31, 1967, and July 22, 1968, respectively, alleging that he

first became unable to work because of his impairments in

March 1945, He filed a fifth application for disability insurance

benefits on April 1, 1970, alleging an onset date of spring 1952.

On September 22, 1972, he filed a sixth application for disabi!-

ity insurance benefits alleging an onset date of 1955. All of

these claims were denied by the Bureau of Disability Insurance

(BDI).

Mr. Harapat filed the pending application, his seventh, on

May 14, 1974, alleging an inability to work since September 2,

1950, because of back trouble, arthritis, diabetes and heart

trouble. The claimant was denied initially and upon reconsider-

ation on the basis that the matter had already been decided in a

prior decision which became final and binding. Thereupon he

requested a hearing before an Administrative Law Judge. On

February 9, 1976, Morton J. Goustin, Federal Administrative

Law Judge dismissed claimant’s request for hearing on the

grounds of res judicata. The claimant requested review of the

dismissal on February 16., 1976. On April 12, 1976, the

Appeals Council denied claimant’s request for review on the

basis that the dismissal was correct under the law and regula-

tions. Thereafter, the claimant filed a civil action in the Federal

District Court in the District of Minnesota for review of the said

dismissal. On June 20, 1977, Judge Devitt entered an Order

remanding the case for a hearing on the merits, as herein above

set forth.

APPLICABLE LAW AND ISSUES

§ 223(d) (1) of the Social Security Act, as amended, defines

|

A-23

“disability” (except for certain cases of blindness) as the

“inability to engage in any substantial gainful activity by reason

of any medically determinable physical or mental impairment

which can be expected to result in death or which has lasted or

can be expected to last for a continuous period of not less than

12 months.” § 223(d) (2) (A) further provides that ‘‘an individ-

ual (except a widow, surviving divorced wife, or widower for

purposes of § 202(e) or (f) shall be determined to be under a

disability only if his physical or mental impairment or impair-

ments are of such severity that he is not only unable to do his

previous work but cannot, considering his age, education, and

work experience, engage in any other kind off substantial gain-

ful work which exists in the national economy, regardless of

whether such work exists in the immediate area in which he

lives, or whether a specific job vacancy exists for him, or

whether he would be hired if he applied for work. For purposes

of the preceding sentence (with respect to any individual),

‘work which exists in the national economy’ means work which

exists in significant numbers whether in the region where such

individual lives or in several regions of the country.”

The Eighth Circuit Court of Appeals originally established

legal standards to be used in social security disability cases in

Celebrezze v. Bolas, 316 F. 2d 498 (8th Cir. 1963) and recently

reiterated those standards in Klug v. Weinberger, 514 F. 2d 423

(8th Cir. 1975). Those standards are:

(a) the claimant has the burden of establishing his claim;

(b) the Act is remedial and is to be construed liberally;

(c) the Secretary’s findings and the reasonable inferences

drawn from them are conclusive if they are supported by

substantial evidence; (d) substantial evidence is such rele-

vant evidence as a reasonable mind might accept as ade-

quate to support a conclusion; (e) it must be based on the

record as a whole; (f) the determination of the presence of

substantial evidence is to be made on a case-to-case basis;

A-24

(g) where the evidence is conflicting it is for the Appeals

Council, on behalf of the Secretary, to resolve those con-

flicts; (h) the statutory definition of disability imposes a

three-fold requirement (1) that there be a medically deter-

minable physical or mental impairment which can be

expected to (result in death or which has lasted or can be

expected to last for a continuous period of not less than

12 months, (2) that there be an inability to engage in any

substantial gainful activity, and (3) that the inability be by

reason of the impairment; (i) such substantial gainful activ-

ity is that which is both substantial and gainful and within

the claimant’s capabilities, realistically judged by his educa-

tion, training and experience; (j) the emphasis is on the

particular claimant’s capabilities and on what is reasonably

possible, not on what is conceivable; and (k) it is not the

duty or the burden of the Secretary to find a specific

employer and job for the claimant but, instead, some

effort and some ingenuity within the range of the claim-

ant’s capacity remains for him to exercise.

§ 205(g) of the Act (42 USC 405(g)) states in pertinent part:

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 60 days after

the mailing to him of notice of such decision or within

such further time as the Secretary may allow... The find-

ings of the Secretary as to any fact, if supported by sub-

stantial evidence, shall be conclusive, and where a claim

has been denied by the Secretary or a decision is rendered

under subsection (b) hereof which is adverse to an individ-

ual who was a party to the hearing before the Secretary,

because of failure of the claimant or such individual to

submit proof in conformity with any Regulation pre-

A-25

scribed under subsection (a) hereof, the court shall review

only the question of conformity with such regulation and

the validity of such regulations.

§ 205(h) of the Act (42 USC 405(h)) states:

The findings and decision of the Secretary after a hearing

shall be binding upon all individuals who were parties to

such hearing. No findings of fact or decision of the

Secretary shall be reviewed by any person, tribunal, or

governmental agency except as herein provided. No action

against the United States, the Secretary, or any officer or

employee thereof shall be brought under section 24 of the

Judicial Code of the United States to recover any claim

arising under this title.

Regulations § 404.937 (20 CFR %& 404.937) provides in perti-

nent part:

The presiding officer 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 previous deter-

mination or decision by the Secretary with respect to

the rights of the same party on the same facts perti-

nent to same issue or issues which has become final

either by judical affirmance or, without judicial con-

sideration, upon the claimant’s failure timely to

request reconsideration, hearing or review to such

determination or decision. (See § § 404.911, 404.918,

404.946 and 404.951).

The general issue before the Administrative Law Judge is

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

ability insurance benefits under § § 216(i) and 223, respec-

tively, of the Social Security Act, as amended. The specific

A-26

issues are whether the claimant was under a “disability” as

defined in the Act, as amended, and if so, when such disability

commenced, the duration thereof, and whether the special

earnings requirements of the Act are met for the purpose of

entitlement.

The issues are dependent as to whether at any time prior to

March 31, 1953, which is the date the claimant last met the

special earnings requirements, he was under a disability as

defined in the Social Security Act, as amended.

EVIDENCE CONSIDERED

The Administrative Law Judge has carefully considered all

the testimony given at the hearing, the arguments made, and the

documents described in the List of Exhibits attached to this

decision.

ANALYSIS OF THE CASE

I

As heretofore set forth, the Honorable Edward J. Devitt,

United States District Judge vacated an Administrative Law

Judge’s dismissal and remanded the matter for a hearing on the

merits. The previous Administrative Law Judge dismissed the

said matter on the basis of administrative res judicata.

The legal basis for the previous Administrative Law Judge’s

dismissal is found in Regulations No. 4 § 404.937 (20 CFT

404.937)), a Regulation properly promulgated pursuan! to

§ 205(a) of the Act (42 USC § 405(a)). § 404.937 provides

that a matter can be dismissed when 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 of issues which has become final either by judicial affir-

mance or, without judicial consideration, upon the claimant’s

failure timely to request reconsideration, hearing, or review,

or to commence a civil action.

A-27

It is well-established as a matter of principal that the doctine

of administrative res judicata is applicable to some administra-

tive proceedings. Such scholars as Kenneth Culp Davis have

stated that the doctrine is at its best as applied in adjudication

of past facts; he feels that it should be realized as applied to

issues Of law and policy involving continuing practices such as

licensure. K. Davis, Administrative Law Treatise, § 1803

(1953). The doctrine of administrative res judicata is designed

to prevent the relitigation by the same parties of the same facts

and the same issues. In essence, it is in the interest of the

parties, government and public in general to end relitigation of

facts and issues previously adjudicated. The doctrine is especi-

ially important in Social Security matters in light of the multi-

tudinous claims filed annually ; the Supreme Court reported that

more than 7,600,000 claims were filed in 1975. Califano v.

Sanders, 97 S. Ct. 980 (1977). In the instant case, Mr. Harapat

has filed seven applications for disability insurance benefits;

he has had the benefit of a hearing in 1963, and numerous

initial and reconsideration determinations subsequent to that

hearing. Mr. Harapat’s case is precisely the type of action which

Professor Davis feels should be handled under the res judicata

doctrine.

Notwithstanding the above, the crux of the matter, is

whether a district court has subject matter jurisdiction to review

res judicata dismissals. As previously set forth in the applicable

law, § 205(g) and (h) provide that any individual, after any final

decision of the Secretary made after a hearing to which he was

a party, may obtain a review of such decision by a civil action

filed in the District Court of the United States. It is well-estab-

lished in the law that an application dismissed without a hearing

on the ground of res judicata is not a final decision of the Secre-

tary made after a hearing and cannot be reviewed in the courts.

Neighbors v. Secretary of Health, Education, and Welfare, 511

F. 2d 80 (10th Cir. 1974); and Easley v. Finch, 431 F. 2d 1351

-

A-28

(4th Cir. 1970).

In a recent case, Califano v. Sanders, 97 S. Ct. 980 (1977),

the Supreme Court had before it a fact pattern very similar to

the one at bar. In that case, the plaintiff initially filed an appli-

cation for disability insurance benefits on January 30, 1964,

alleging inability to work because of epilepsy and blackout

spells. His claim proceeded through the several steps of the

administrative procedure. An Administrative Law J udge found

that claimant was ineligible for benefits on the gound that he

had not demonstrated a relevant disability of sufficient severity.

The Appeals Council sustained this decision and the respondent

did not pursue judicial review of the Secretary’s final decision

under § 205(g). Approximately seven years later, on March 5,

1973, respondent filed a second claim alleging the same bases

for eligibility. His claim was again processed through admini-

Strative channels under the Secretary’s Regulations. An Admin-

istrative Law Judge viewed the new application as barred by

res judicata and denied reopening of the previous claim. The

dismissal was affirmed by the Appeals Council. The plaintiff

then filed for review in the United States District Court and

alleged jurisdiction under § 205(g). The District Court dis-

missed the complaint in an unpublished memorandum opinion

Stating that it lacked jurisdiction to review the Administrative

Law Judge’s dismissal. The respondent then appealed to the

United States Court of Appeals for the Seventh Circuit. Ina

split decision the Seventh Circuit acknowledged that there is no

provision in the Social Security Act which would grant jurisdic-

tion to review a dismissal of an Administrative Law Judge and

refusal to reopen a prior denial for abuse of discretion. The

court, however, held that the Administrative Procedure Act, §

10 contains an independent grant of subject matter jurisdiction.

Thus, the Seventh Circuit concluded that the District Court has

jurisdiction to review res judicata dismissals and refusals to

reopen prior claims under § 10 of the APA.

Se

A-29

From this decision, the United States Supreme Court re-

versed the Seventh Circuit and held that § 10 does not afford an

implied grant of subject matter jurisdiction and that §205(g)

only provides jurisdiction for review of “‘any final decision of

the Secretary made after a hearing.” Of further importance in

this matter is that the Supreme Court cited Neighbors v. Secre-

tary of Health, Education, and Welfare, 511 F. 2d 80 (10th Cir.

1974) in footnote 8. In Netghbors the Tenth Circuit dismissed

a claimant’s appeal on the ground that the Federal Courts

lacked jurisdiction to review res judicata dismissals. The Tenth

Circuit stated:

The issues raised in the present appeal, that whether the

District Court lacked jurisdiction to entertain a suit under

the Act challenging the dismissal of an application for

benefits on the ground that such application had been

denied previously was before us in Hobby v. Hoggis, 215

F. 2d 54 (10th Cir. 1954). In Hobby we held that, where

an applicant under the Act has filed a second application

raising a claim for relief previously passed upon in an

earlier application and where such subsequent application

was dismissed without hearing on the ground of res jud-

tcata, there is no ‘final decision of the Secretary made after

hearing’ and hence the court lacks jurisdiction to enter-

tain a suit challenging such earlier decision. This result has

been reached in other cases, and we think from the records

such result is manifestly required here. it is clear that

under the Act and Regulations promulgated thereunder,

appellant had sixty (60) days from the . . . decision of the

Secretary to seek judicial review of such decision. Appel-

lant failed to do so, and the filing of a second and substan-

tially identical application for disability benefits will not

allow him to circumvent this requirement of the Act. (511

F. 2d at 81).

Notwithstanding the above the Administrative Law Judge has

A-30

abided by the remand Order of June 20, 1977, and held a hear-

ing on the merits in St. Cloud, Minnesota, on September 27,

1977.

II

The claimant last met the special earnings requirements of

the Act for disability purposes through March 31, 1953; there-

fore, any “disability” must have had its onset prior to that date.

Any deterioration in the claimant’s physical condition so as to

reduce his potential to carry on substantial gainful employment

after date date may not be substituted for his condition and

working capacity prior thereto, even through his condition after

the date on which the earnings requirements were last met may

have reached that degree of severity as to constitute a ‘‘disabil-

ity” under the Act. If this condition deteriorated after the date

when the earnings requirements were last met, this fact cannot

be considered of importance here.

Mr. Harapat testified at the hearing that he was born on Jan-

uary 19, 1919, and was 34 years of age when he last met the

special earnings requirements of the Act. At the present time

Mr. Harapat stands five feet seven inches and weighs approxi-

mately 168 pounds. He testified that he has weighed 168

pounds since the early 1950’s. He was married in 1944 and has

fathered eight children. At the present time only one child lives

at home.

Mr. Harapat testified that he presently lives in Osakis, Minne-

sota, and drove to the hearing in St. Cloud, Minnestoa, a dis-

tance of approximately 54 miles.

The claimant related that he finished approximately seven

grades in school and has no specialized or vocational skills. His

occupational history reveals that he has worked as a painter,

kitchen helper, assembler of air conditioners, operator of a

power saw for a wood plant, and farmer.

Mr. Harapat testified that he has not worked at all since the

A-31

early 1950’s. He alleged that he has been unable to mow the

lawn and perform chores around the house since the early

1950’s.

He complained of severe intractable pain in multiple joints,

headaches, and nervousness. He related that subsequent to

1953 he began taking medication for diabetes and heart pro-

blems.

The claimant testified that he usually arises around 6:00 a.m.

and goes to bed around 10:00 p.m. He drives his car up to 300

miles a month, has never gone fishing or hunting and has no

hobbies. He does not go to any ball games, attend movies or

attend church. He does, however, assist his wife with such

housework as washing dishes, sweeping the floor and shopping.

Claimant’s attorney, Orrin V. Rinki, posed numerous leading

questions to his client which would establish that Mr. Harapat

is indeed a rather inadequate individual who has complained of

multiple pains and nervousness since the early 1950’s.

Dorothy Harapat, the claimant’s wife, testified that her hus-

band’s testimony was substantially correct. She did, however,

relate that Mr. Harapat regularly attends high school basketball

games in Osakis, Minnesota. She further stated that in the early

1950s his condition was much worse than at the present time.

In fact, she stated that his hands were deformed in the 1950s

by reason of severe arthritis. She further stated that at the

present time he frequently gets up at night and drives his car

around Lake Osakis for a couple of hours. She also testified

that she and her husband socialize with friends approximately

once a week.

Mrs. Harapat testified that her husband has been taking

Indocin and blood pressure medication for 17 years (since

approximately 1960 or 1961). Aside from those medications,

her husband has only taken aspirin.

The administrative Law Judge arranged for a neutral voca-

tionai expert to be present and participate at the hearing.

is

—_—

A-32

Howard S. Feldman, Ed.D., from the Department of Vocational

Rehabilitation at the University of Wisconsin-Stout in Menom-

onie, Wisconsin, testified as a neutral impartial vocational

expert. Attorney Rinke stipulated to Dr. Feldman’s qualifica-

tions.

The Administrative Law Judge posed two hypothetical ques-

tions to the vocational expert relating to the period of time

from April 1, 1949 to March 31, 1953, which incorporated

claimant’s age, education, work experience and selected findings

from the medical evidence of record. In response thereto, the

neutral vocational expert opined that claimant possessed the

residual functional capacity to perform such jobs as cementer

or bench worker in the optical goods industry, wire worker in

the electronics industry, heating element winder in the electric

equipment industry, and ticketer in any industry. Dr. Feldman

stated that the above-mentioned jobs were sedentary in nature;

they would not require lifting over ten pounds maximum. Such

jobs would involve mainly sitting but would allow for occa-

sional walking and/or standing. He noted that the above fields

of work are “typical of the 156 different job types classified

under the sedentary category.” He further noted that they

require Only a low level of general educational development and

would require only 30 days of training for full production.

The undersigned Administrative Law Judge posed a third

hypothetical question on behalf of attorney Mr. Rinke which

included claimant’s subjective complaints. In response to that

hypothetical question Dr. Feldman concluded that claimant

could not perform any work of a substantial gainful nature.

As previously mentioned, for claimant to be found entitled

to disability insurance benefits, a “disability” sufficient to sat-

isfy the Act, must be established either on or prior to March 31,

1953, and continue without interruption to at least May 14,

1973, 12 months prior to the date of the pending application.

(See in this regard § 216(i) (2) (e)).

A-33

Attorney Rinke submitted to the Administrative Law Judge a

report from Robert Peterson, M. D., a general practitioner,

dating from January 31, 1949, to December 11, 1951. On Jan-

uary 31, 1949, Dr. Peterson reported that claimant was suf-

fering from rheumatoid arthritis with pain in his joints and

back. He estimated that claimant’s disability was total and

would preve.:t him from performing any occupation. On Feb-

ruary 28, 1950, Dr. Peterson stated that claimant was unable to

do any laboring work but could perform “any light work.” On

August 8, 1950, the physician stated “should try sedentary type

work.” He suggested that claimant undergo gold therapy

because of stiff joints and spine. On March 7, 1951, Dr. Peter-

son advised claimant to avoid heavy laboring work. ©n Decem-

ber li, 1951, Dr. Peterson recommended that claimant seek

employment in another occupation. Again he felt that claimant

was unable to do any laboring work.

On May 6, 1952, Mr. Harapat was examined at the Veterans

Administration Hospital because of multiple pain. J. S. Abbott,

M. D., a Medial Officer reported that motion in all joints of the

upper extremeties was free and complete and without pain. On

flexation of the dorsal lumbar spine claimant could reach to

within four inches of the floor.

Claimant had a good lumbar curve and exhibited no muscle

spasm. Claimant’s straight leg raising and Patrick’s test were

normal. Claimant’s leg reflexes likewise were normal. His

motion in all joints in the lower extremities was free and com-

plete without any pain. Dr. Abbott commented that the phys-

ical examination “shows practically nothing in the way of joint

disturbance. There is no crepitus; no swelling; no abnormality

of contour; no atrophy. The diagnosis is made on history

alone.”

In April 1959 claimant was again examined at the Veterans

Administration Hospital. S. Zimberg, M. D. reported a normal

lumbar curve, no paravertebral spasm and no _ tenderness.

A-34

Claimant’s spinal motion was likewise normal. Straight leg

raising and sciatic stretching tests were negative. Claimant’s

knee and ankle jerks were also normal. Dr. Zimberg reported

no sensory deficit in either leg. The physician found no tender-

ness, swelling, atrophy, deformity or limitation of motion in

any of claimant’s joints. He rendered a diagnosis of arthritis

by history alone. Claimant also underwent a psychiatric exam-

ination at the Veterans Administration Hospital. Charles A.

Haberle, M. D. diagnosed anxiety reaction with psychophysio-

physiological musculoskeletal reaction in a basically passive-

dependent person. He felt that claimant was competent.

Claimant was examined at the Veterans Administration Hos-

pital in 1964 and diagnosed as having a psychoneurotic reation,

conversion reaction. For the first time, claimant was diagnosed

as being a diabetic.

In May 1964 x-ray examination of claimant’s lumbosacral

spine was normal. A psychiatric examination by J. J. Lawton,

M. D. revealed a conversion reaction, psychoneurosis, character-

ized by arthritic difficulties in a schizoid personality.

Claimant’s personal physician Robert Peterson, M. D. re-

ported in letters dated August 5, 1965, August 29, 1968, June

18, 1974, and January 14, 1975, the claimant ijnas been totally

disabled because of rheumatoid arthritis, low mentality, and

general inadequacy. Dr. Peterson further stated:

He’s become so dependent on other people supporting him

that there is never a possibility that he would get off the

‘gravy train.” This, I do not believe is Mr. Harapat’s fault,

but I believe it is the fault of the Social Security and Wel-

fare System that we abide by in this country.

Numerous other reports have been submitted to the Admini-

strative Law Judge which clearly relate to claimant’s condition

after March 31, 1953. The Administrative Law Judge has con-

sidered these reports but feels that it is unnecessary to thor-

i

A-35

oughly summarize all such reports.

Il

Of special significance to the instant case is the test regarding

the three-fold requirement for a determination of disability:

(1) a medically determinable physical or mental impairment

which has or will last 12 months; (2) inability to engage in any

substantial gainful activity; and, (3) the inability must be by

reason of the impairment. Yawitz v. Weinberger, 498 F. 2d 956

(8th Cir. 1974). The Eighth Circuit added a fourth element of

proof in Timmerman v. Weinberger, 510 F. 2d 439 (8th Cir.

1975). In that case the Court established that subjective evi-

dence of pain testified to by the claimant and corroborated by

family and neighbors must be considered.

As previously mentioned in this decision, claimant last met

the special earnings requirements of the Act on March 31, 1953.

Therefore, any “disability” must have had its onset either on

or prior to that date. Hence, the Administrative Law Judge

must examine claimant’s condition as it existed 24 and one-half

years ago.

The record before the Administrative Law Judge is anything

but convincing. A report from the Veterans Administration

Hospital dated May 1952 reveals no objective evidence of any

physical impairment. In fact, Dr. Abbott reported no crepitus,

no swelling, no abnormality of contour, and no atrophy. He

further reported no muscle spasm, normal range of motion, nor-

mal straight leg raising and normal Patrick’s test. Claiment’s

treating physician, a general practitioner reported on several

occasions in 1950 and 1951 that claimant was unable to per-

form his usual occupation but could perform some other type

of work. In 1965, 1968 and 1974 the general practitioner

revised his conclusions from 1950 and 1951.

In essence, the medical evidence of record is not supportive

of any significant pathology, dysfunction or anomaly at any

Moe at a, bln A nk ST Ti Hein an

EASES tle ra Malte cd A AN RE int in atti one Rica

eae ee DS Lirias His oeceatn Dale icnle e n e S oa

et i

A-36

time in which the claimant was insured for disability purposes.

In fact, in 1959, approximately six years after his insured status

expired, a physicial examination at the Veterans Administration

again failed to reveal any significant pathology.

The Administrative Law Judge recognizes that at the present

time Mr. Harapat may be unable to engage in any work of sub-

stantial gainful nature by reason of his emotional and physical

condition. However, his condition some 24 and one-half years

after the date in which he last met the special earnings require-

ments of the Act cannot be substituted for his condition as it

existed when he last met the earnings requirements.

Mr. Rinke, claimant’s attorney contended at the hearing that

claimant was psychiatrically disabled in 1953. The only medi-

cal report issued prior to March 31, 1953, which relates to

claimant’s psychiatric condition during the pertinent period is

from Dr. Peterson, a general practitioner. On December 11,

1951, Dr. Peterson reported that claimant was not in need of

any medical, surgical, psychiatric and/or nursing care. Again,

the fact that in 1959 a diagnosis of psychophysiological reac-

tion was rendered cannot be substituted for his condition and

working capacity prior to March 31, 1953.

The trier of fact, in this instance, the Administrative Law

Judge is charged with the duty and responsibility of developing

a full and fair record and assigning probative weight to the

evidence presented. It is for the undersigned to evaluate and

weigh the witnesses’ credibility.

The Administrative Law Judge is constraincd to conclude

that claimant’s credibility is lacking. At the hearing, he testified

that he does not socialize, attend ball games, or drive his auto-

mobile over 300 miles in one month. Mrs. Harapat testified

under oath that she and her husband socialize with friends at

least once a week, attend basketball games on a regular basis,

and that Mr. Harapat regularly drives his automobile around

Lake Osakis to relax and unwind.

A-37

Mrs. Harapat testified that her husband’s hands and other

joints were disfigured in the early 1950s by reason of arthritis.

Her testimony is directly in contradiction with the medical

reports from the Veterans Administration Hospital which relate

that claimant did not experience any swelling, crepitus, deform-

ity or atrophy in any ,vint.

Mr. Harapat seemed to have a solid recollection on points

that would clearly benefit his case. When testifying on his daily

activities work experience and et cetera, he was notably hesitant,

sketchy and seemingly less truthful. Accordingly, the Admini-

strative Law Judge must question Mr. and Mrs. Harapat’s credi-

bility.

The Administrative Law Judge is cognizant of Dr. Peterson’s

conclusions in 1965, 1968 and 1974 that claimant is totally

“disabled.” While Dr. Peterson’s opinion is of evidentiary value,

the function of deciding whether or not an individual is under a

statutory “disability” is the responsibility of the Secretary. A

statement by a physician that Mr. Harapat is or is not disabled

is not determinative of the qeustion of whether or not Mr.

Harapat is under a statutory “disability.” As recognized by the

medical profession, Dr. Peterson is competent to ascertain on

the basis of ohjective medically determinable clinical and labor-

atory evidence, the nature, the limiting effect, and probable

duration of claimant’s impairments. It is not his function to

decide the question of disability, since he is not expected to

have knowledge of all the pertinent social security regulations

and court cases. It cannot be assumed at least in the absence of

evidence to the contrary that Dr. Peterson was familiar with the

statutory meaning of the term “disability” or with the fact that

it is a term of art which is to be distinguished from the term

“impairment.”

A claimant will not be found “disabled” and entitled to bene-

fits merely because he is unable to perform his previous work.

Viewing the evidence of record in a light most favorable to the

Re Sie Stn i aie i an

2 an ee

a I I a i a aa a

A-38

claimant, the undersigned concedes that claimant did not

possess the residual functional capacity to work as a painter,

kitchen helper, air conditioner assembler, and general laborer

from the date of his alleged onset to March 31, 1953, the date

in which he last met the earnings requirements of the Act.

Accordingly, the burden shifts to the Secretary to prove that

there is some other kind of substantial gainful employment

which the claimant can perform. Timmerman v. Weinberger,

510 F. 2d 439 (8th Cir. 1975). The undersigned arranged for a

neutral vocational expert to testify at the hearing. In response

to two hypothetical questions based upon claimant’s age, edu-

cation, work experience and selected findings from the medical

evidence, the vocational expert stated that claimant could per-

form a variety of sedentary type jobs during the pertinent

period when claimant last met the earnings requirements for

disability purposes. In response to a third hypothetical ques-

tion based upon claimant’s subjective complaints as well as his

age, education and work experience, the vocational expert test-

ified that claimant could not perform any work in the economy.

The Administrative Law Judge concurs with the vocational

expert in his appraisal of claimant’s vocational capacity based

upon the two hypothetical questions which incorporated

selected findings from the medical evidence of record. The

undersigned is not unmindful of claimant’s allegations of severe

and intractable pain and headaches. However, the mere asser-

tion of pain does not foreclose the trier of fact’s conclusion

based upon more persuasive evidence, that either the asserted

pain does not exist or is of such a degree that it does not fore-

close employment. Pantekoek v. Weinberger, No. 4-72-286 (D.

Minn., filed July 2, 1975). The Administrative Law Judge is

not obligated ‘to accept claimant’s assertions of pain at face

value or to evaluate his assertions wholly apart from the medical

and other evidence in the record. In light of the credible evi-

dence of record the Administrative Law Judge cannot accept

EL ee ee

A-39

the severity of claimant’s allegations of pain. Claimant’s testi-

mony was clearly not credible and not persuasive. The medical

evidence in this case is overwhelming that claimant was aflicted

with only slight or insignificant impairments prior to March 31,

1953. Hence, the credible and persuasive evidence in the record

does not provide a basis for severe and intractible pain which

would prevent the claimant from performing the sedentary

work as suggested by the neutral vocational expert.

Of significance in this case is the fact that Mr. Harapat chose

to “retire” while in his early 30’s. He has earned in his lifetime

only $7,541.54. His lack of motivation and desire to be depen-

dent upon others for support seems to be apparent. It is well-

established in the work world that even the most healthy of

individuals will remain unemployed without proper motivation.

As stated in Celebrezze v. Bolas, supra:

It is not the duty or burden of the Secretary to find a

specific employer and job for the claimant but, instead,

some effort and some ingenuity within the range of the

claimant’s capacity remains for him to exercise.

This claimant, who has not worked for over 25 years and

who in fact decided to stop working at an extremely young age

cannot be found entitled to disability insurance benefits. His

condition as it existed prior to March 31, 1953, was not severe.

Perhaps Dr. Peterson and vocational counselors who examined

claimant in the 1960s are correct in their appraisal of the situa-

tion; that is, that claimant may be a product of our welfare sys-

tem and as such cannot be blamed for his nonproductivity. In

some instances, “getting something for nothing” can reduce a

person’s desire to work and make him totally dependent upon

others. However, entitlement to disability insurance benefits

cannot be hinged upon a condemnation of our welfare system

or because an individual lacks proper motivation. The Act

clearly establishes that Social Security disability is the “inability

at ht eo ment

SN rT en a eee Hel Rl hil i Lea @

eee ee ee ee

A-40

to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which

can be expected to result in death or which has lasted or can be

expected to last for a continuous period of not less than twelve

months.” (Underlining for emphasis only). There is no doubt

in the undersigned Administrative Law Judge’s mind that claim-

ant is not entitled to any period of disability or to an award of

disability insurance benefits under the Act, as amended.

FINDINGS

After careful consideration of the entire record, the following

findings are made:

(1) That the claimant’s stated date of birth is January 19,

1919, and he was 34 years of age when he last met the

special earnings requirements of the Act;

(2) That the claimant has a seventh-grade education;

(3) That the claimant last met the special earnings require-

ments of the Act reiative to disability on March 31,

1953;

(4) That the claimant alleged that he has been unable to

work since April 1, 1949, because of nervousness, arth-

ritis, and numerous somatic complaints;

(5) That the claimant’s occupational history reveals that

he has worked as a painter, kitchen helper, air condi-

tioner assembler, and general laborer; that claimant in

his lifetime earned only $7,541.54 in wages;

(6) That the claimant’s credibility is clearly lacking in

regard to his testimony pertaining to his daily activities

and impairments;

(7) That Mrs. Harapat’s credibility is clearly lacking in

regard to her statements pertaining to her husband’s

ee

(8)

(9)

(10)

(11)

(12)

(13)

(14)

A441

impairments;

That the record does not establish severe and intract-

able pain which, in itself, would have precluded claim-

ant from engaging in work activity prior to or on

March 31, 1953;

That the medical evidence establishes no severe or

othopedic dysfunction, no neurological deficit and no

related physical or mental impairment on or prior to

March 31, 1953, which would preclude claimant from

engaging in the type of work activity suggested by the

neutral vocational expert;

That despite claimant’s alleged dysfunctions, he

retained a number of residual transferrable skills from

previous work experience as mentioned by the neutral

expert;

That the claimant’s possessed the overall physical and

mental capacity to perform a variety of occupations

within the national and local economy at all times per-

tinent to this case and as representative thereof are

occupations suggested by the neutral vocational expert

who testified in this case;

That the jobs and fields of work mentioned by the

neutral vocational expert are merely illustrative of the

many types of work of which claimant was capable of

performing and they are not all inclusive;

The claimant was not prevented from engaging in sub-

stantial gainful activity, on or before March 31, 1953,

the date the special earnings requirements were last

met, for any continuous period of at least 12 months;

The claimant was not under a “disability,” as defined

in the Social Security Act, as amended, at any time on

A-42

or before March 31, 1953. .

In arriving at the above conclusions, the undersigned has

given due consideration to the claimant’s age, education, train-

ing, work experience and adaptability and to all the evidence of

record in addition to the pertinent regulations. See Social

Security Administration Regulations No. 4, 20 C. F. R., §

404.1502.

RECOMMENDED DECISION

It is the recommended decision of the undersigned Admini-

strative Law Judge that the claimant based on his application

filed on May 14, 1974, is not entitled to the disability insurance

benefits for which he has applied.

Specific notice is hereby given to claimant that this decision

is preliminary only, subject to final action by the Appeals Coun-

cil, adopting, confirming, modifying or rejecting it. The claim-

ant has the opportunity to file with the Appeals Council within

ten days of the date of this recommended decision, briefs or

other written statements of exception and comment, as to the

applicable facts and law. After the ten day period has expired,

the Appeals Council reviews the record and issues its decision.

/s/ Everett J. Hammarstrom

Administrative Law Judge

Suite 830, Plymouth Building

12 South Sixth Street

Minneapolis, Minnesota 55402

Date: Dec. 23, 1977

A-43

(Title of Cause)

ww ORDER

I approve the recommendation of the United States Magis-

trate and direct that the case be returned to the Secretary of

Health, Education and Welfare for a hearing to be held on the

petitioner’s petition within ninety (90) days from the date

hereof.

DATED: June 20, 1977.

/s/ Edward J. Devitt, Chief Judge

United States District Court

A-44

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Sixth Division

Stanley Harapat, Civil 6-76-199

Plaintiff,

VS.

Caspar Weinberger, Secretary of

Health, Education & Welfare,

Defendant.

Rinke, Noonan, Grote & Smoley by William A. Smoley, 100

South Second Avenue, Sauk Rapids, Minnesota attorneys for

plaintiff.

Thorwald H. Anderson, United States Attorney, and Elizabeth

A. Egan, Assistant United States Attorney, 596 United States

Courthouse, Minneapolis, Minnesota attorneys for defendant.

Plaintiff seeks judicial review under 42 U. S. C. 405(g) of an

order by the Hearing Examiner for the Department of Health,

Education and Welfare which denied Social Security disability

insurance benefits requested under 42 U. S. C. 416(i) and 423.

The scope of judicial review is limited by 42 U.S. C. 405(g)

(h) to whether substantial evidence exists in the record to sup-

port the Secretary’s findings. Easttam v. Secretary of Health,

Education & Welfare, 364 F. 2d 509 (8th Cir. 1966); Gendreau

v. Finch, 298 F. Supp. 546 (D. Minn. 1968).

The Appellate Court of the Eighth Circuit has sct out legal

standards to be used in this type of case. Celebrezze v. Bolas,

316 F. 2d 498, 500-501 (8th Cir. 1963); Garrett v. Richardson,

471 F. 2d 598, 599-600 (8th Cir. 1972); Yawitz v. Weinberger,

498 F. 2d 956 (8th Cir. 1974); Klug v. Weinberger, 514 F. 2d

423 (8th Cir. 1975). Those standards are:

A-45

(a) the claimant has the burden of establishing his claim;

(b) THE ACT IS REMEDIAL AND IS TO BE CON-

STRUED LIBERALLY (emphasis supplied); (c) The Sec-

retary’s findings and the reasonable inferences drawn from

them are conclusive if they aze supported by substantial

evidence; (d) substantial evidence is such relevant evidence

as a reasonable mind might accept as adequate to support a

conslusion; (e) it must be based on the record as a whole;

(f) the determination of the presence of substantial evi-

dence is to be made on a case-to-case basis; (2) where the

evidence is conflicting it is for the Appeals Council on

behalf of the Secretary to resolve those conflicts; (h) the

statutory definition of disability imposes a three-fold re-

quirement (1) that there be a medically determinable

physical or mental impairment which can be expected to

result in death or which has lasted or can be expected to

last for a continuous period of not less than 12 months.

(2) that there be an inability to engage in any substantial

gainful activity, and (3) that the inability be by reason of

the impairment (i) such substantial gainful activity is that

which is both substantial and gainful and within che claim-

ant’s capability, realistically judged by his education,

training, and experience; (j) THE EMPHASIS IS ON THE

PARTICULAR CLAIMANT’S CAPABILITIES AND ON

WHAT IS REASONABLY POSSIBLE, NOT ON WHAT IS

CONCEIVABLE, (emphasis supplied); and (k) it is not the

duty or the burden of the Secretary to find a specific em-

ployer and job for the claimant but, instead, some effort

and some ingenuity within the range of the claimant’s

capacity remains for him to exercise.

This appeal is from a hearing in which there was an adverse

ruling on September 9, 1975, by the Bureau of Disability Insur-

ance, Social Security Administration, United States Department

of Health, Education and Welfare, denying this petitioner’s

A46

seventh application filed herein on May 14, 1974, to establish

a period of disability and for an award of disability insurance

benefits. The ruling of the Administrative Law Judge, and sup-

ported by the Appeals Council of the Department of Health,

Education and Welfare, was that the petition of Stanley Harapat

had previously been determined and that determination was

binding on the parties, and the defense of res judicata prevailed.

The petitioner has asked for a review by the United States

District Court to which he is entitled as is stated in paragraphs

one, two, and three of this opinion. It is the duty of the Secre-

tary to provide the court with a transcript of the proceedings

which are pertinent to the appeal. The transcript furnished the

court in the first instance herein was illegible in most instances

and obviously incomplete. The court informed the United

States Attorney of this defect and some months later a more

legible but still incomplete record was furnished to the court.

By incomplete record I refer to index of the exhibits of the

original hearing which was concluded by a decision of Thomas

E. Wiley, Hearing Examiner, for the Department of Health,

Education and Welfare on September 30, 1963. The index

indicates that exhibits 10, 11A, 11B and 11C were medical

reports from a doctor who had attended the petitioner and the

medical report are not in the record. In review, it is impossible

for the court to determine what the doctor had to say con-

cerning the disability of the petitioner. Since that petition, this

petitioner has filed six more petitions, and there is no indication

of any outcome of the previous petitions other than a conclu-

sion that res judicata disposed of them.

In this matter the only thing the court has to go on is the

testimony of the petitioner himself together with the testi-

mony, and I mean testimony, of the Hearing Examiner. The

sum and substance of the petitioner’s complaint if that he had

not worked since 1950. He has been on various welfare and

assistance plans since then. He was discharged from the military

A-47

service honorably with a notation of CDD which petitioner test-

ified “‘can’t do duty.” The petitioner claims that he was

disabled then and was disabled in 1963 and is to and including

the date of the application for benefits by way of this petition.

In reviewing the report of proceedings held before Thomas E.

Wiley, Hearing Examiner, on the 25th of June 1963 at St.

Cloud, Minnesota, it can hardly be said that the petitioner had a

hearing at that time as the law implies. The general tenor and

attitude of the Hearing Examiner was that he was the defense

attorney and that he was the medical authority for the Depart-

ment. On page 12 of the 1963 hearing an example is as follows:

Q “Now, this question pertains to limitation of motion,

which is very important in arthritic people. Sometimes he

can’t raise his arms, sometimes he can’t straighten a leg,

sometimes he can’t straighten up, sometimes the wrist will

be all swollen up and you can’t move your wrist, that is

limitation of motion. Do you have limitation of motion

in the joints?

A “I would say yes.”

Q “Which joints?”

A “Well, its the legs sometimes, sometimes the back, some-

times the neck.”

Q “You have it, and then it goes away.”

A “That’s right.”

Q “Did you ever, for any period of time, have a joint you

couldn’t move, say for as much as a month?”

A “No, not as much as a month, maybe a day or two, or

something like that?”

On page 16 of the transcript is the following testimony.

A-48

Q “Has your memory been affected by your nervous condi-

tion?”

A “Well, I can’t remember anything too well, things.”

Q “Could you tell us something that you didn’t remember

that you know you should have remembered, do you for-

get where you put things?”

A “Could be no, yes.” * * *

Q “Did you ever have any trouble with fears, do you fear this

or do you fear that?”

A “Yes.” (testimony continuing on page 17 of tr.)

Q “Do you think much more so than any one else?”

A “I wouldn’t say any more.”

Q “There haven’t been any of those fears that have ever been

important (unintelligible) do you feel that they are impor-

tant?”

A “No.”

Q “You have seen people who have had polic and had a bum

leg that they can’t use, that is parapysis, you have had no

paralysis?”

A “No.”

Continuing the testimony on page 18 of the transcript

Q “ * * * what is there about your condition that you think

we should know? What is there about your nervous con-

dition that keeps you so you can’t work?”

A “My memory.”

Q “It is not enough to say I’m nervous. You have to Say

<<

A-49

what the main specifications of the nervousness are, how it

affects you, how it affects other people. Do you get

cranky, short tempered?”

A “Yes.”

Q “Everybody does, don’t they?”

A “I suppose, I imagine.” (testimony continued page 19)

Q “Do you get more that way than you used to?”

A “Yes, a lot of times I guess.”

Q “Well, if Uncle Sam were to ask you today, and he does

ask you, why you can’t work, how would you answer?”

A “I can’t work because of, on account of my arthritis in the

back and the nervous condition.”

Q “We understand about the arthritis, we are not quite sure

about this nervous condition. Now, you say that it affects

your memory, it affects you so you are a little short

tempered, what else did you say?”

A “Get headaches.”

Q “You never been treated for it?”

A “For what.”

Q “For nervousness?”

A “For headaches.”

Q “I mean you have never been hospitalized for nervous-

ness?”

A “No, I never been.”

~Q “You have no paralysis, you have no blackouts, you did

have blackouts, that doesn’t add up very much about the

ee

A-50

nervous condition. What else is there you have about the

nervous condition that keeps you, perhaps keep you from

working. Can you mention anything further for the record,

well?”

A “I don’t know what to put down there.”

Continuing the testimony on page 23 of ihe transcript.

Q “You have no tenderness, swelling, atrophy, deformity of

of limitation of motion, but you have arthritis. Well, is

there anything else that you think we should know about

your case that we haven’t touched on?”

A “Not that I know of, we just about went through it now.”

Q “There is some question in my mind about your nervous

condition?”

MRS. HARAPAT: “Can I answer that?”

EXAMINER: “Just a second. This veteran says that he has

been nervous in the last couple of years, he’s developed head-

aches, besides aches in the joints, the trouble with his

stomach which is described, as pains, gas pains. He does not

seem particularly anxious as he talks about. this, however, he

is not too verbal, that means he don’t say too much or

describe his feelings, he’s only able to sleep about four hours

a day, is that right, he has a good appetite, shows no fear, but

the old stuff like that gets you down?”

Q “Did you say that there is something you could tell us that

would be helpful, Mrs. Harapat?”’

MRS. HARAPAT: “You were talking about his nervous con-

dition, I don’t know anyone who sweats like Stanley do.”

Q “Do you sweat quite a bit?”

CLAIMANT: “Yes.”

A-51

MRS. HARAPAT: “He can’t work any length of time, he

gets all worn out, he just wants to sit down.”

Q “Now he sweats a great deal and he gets tired easily, is

there anything else that you feel the record ought to

show?”

A “ * * * He would work a few days, then he would be sick a

few days, then pretty soon that got around and he wasn’t

able to get any work.”

The question now is whether the doctrine of res judicata bars

consideration of Harapat’s application for disability insurance

benefits. Harapat filed an initial application for benefits that

brought about the meeting on July 25, 1963, just reviewed. He

did not file appeals as the law provides although undoubtedly

he was advised of that right or obligation.

Regulation 20 C. F. R. 404.937(a) reads:

“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 previous deter-

mination 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 judi-

cial affirmance or, without judicial consideration, upon the

claimant’s failure timely to request reconsideration,

hearing, or to commence a civil action with respect to such

determination or decision. * * *

The Administrative Law Judge has denied the rehearing claim-

ing that the applicant has not made a showing of “good cause.”

Regulation 20 C. F. R. 404.957 provides:

“An initial, revised, or reconsidered determination of the

Administration or a decision or revised decision of a hear-

nenltninctaeliat

eer

A-52

ing examiner or of the Appeals Council which is otherwise

final * * * may be reopened * * * to the party to such

determination * * *”

Although application of the doctrine of res judicata to

administrative decision serves a useful purpose in preventing

relitigation, it is not applied with the same rigidity as its judi-

cial counterpart. United States v. Smith, 482 F. 2d 1120, 1123

(8th Cir. 1973). Grose v. Cohen, 406 F. 2d 823, 825 (4th Cir.

1969), recognized that “practical reasons may exist for refusing

to apply it.” The existence of the reopening regulation indi-

cates that it is undesirable to attribute finality to every admini-

strative decision. 20 C. F. R. 404.957.

Furthermore, it is immaterial that Harapat’s second applica-

tion was framed as a new application rather than a petition to

reopen. In Leviner v. Richardson, 443 F. 2d at 1342: Brinker v.

Weinberger, 75-1130 (8th Cir., September 3, 1975), the court

emphasized that the reopening regulation

also serves to identify decisions that should not be in-

terposed to deny subsequent applications. A decision

that is subject to being reopened provides an inappro-

priate bar.

The dictates of equity and fundamental fairness that allow a

a decision to be reopened preclude use of the same decision as a

foundation for res judicata. See Grose v. Cohen, 406 F. 2d at

825 (4th Cir. 1969).

As noted above there is a question whether this claimant ever

had a hearing. The record does not disclose an impartial, fair

hearing. The record does not disclose the medical evidence

presented by this petitioner with an eighth grade education.

This case should be returned to the Administrative Law

Judge for a hearing on its merits. The petitioner now has an

attorney who will help him present his case. The file indicates

the petitioner has tried to inform the court that he has addi-

tional medical evidence.

A-53

I recommend to the court that this case be returned imme-

diately to the Secretary for a hearing. It is further recom-

mended, because this matter has been strung on for some four-

teen years, that the Secretary be directed to conduct this hear-

ing within ninety (90) days of the date of this order and that

the Administrative Law Judge hear the same, decide the case

promptly as well as fairly.

DATED: June 20th, 1977.

/s/ George G. McPartlin

United States Magistrate

Te it Sinn a cicnttes Yo ant in ile Ney isan Pn nite 5s iG Sd Bla

ne a

A-54

42 U.S. C. § 405(g)

(g) Judicial review

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. Such action shall be brought in the

district court of the United States for the judicial district in

which the plaintiff resides, or has his principal place of business,

or, if he does not reside or have his principal place of business

within any such judicial district, in the United States District

Court for the District of Columbia. As part of his answer the

Secretary shall file a certified copy of the transcript of the

record including the evidence upon which the findings and

decision complained of are based. The court shall have power

to enter, upon the pleadings and transcript of the re.ord, a judg-

ment affirming, modifying, or reversing the decision of the

Secretary, with or without remanding the cause for a rehearing.

The findings of the Secretary as to any fact, if supported by

substantial evidence, shall be conclusive, and where a claim has

been denied by the Secretary or a decision is rendered under

subsection (b) of this section which is adverse to an individual

who was a party to the hearing before the Secretary, because of

failure of the claimant or such individual to submit proof in

conformity with any regulation prescribed under subsection (a)

of this section, the court shall review only the question of con-

formity with such regulations. The court shall, on motion of

the Secretary made before he files his answer, remand the case

to the Secretary for further action by the Secretary, and may,

at any time, on good cause shown, order additional evidence to

be taken before the Secretary, and the Secretary shal!, after the

case is remanded, and after hearing such additional evidence if

so ordered, modify or affirm his findings of fact or its decision,

A-55

or both, and shall file with the court any such additional and

modified findings of fact and decision, and a transcript of the

additional record and testimony upon which his action in

modifying or affirming was based. Such additional or modified

findings of fact and decision shall be reviewable only zo the

extent provided for review of the original findings of fact and

decision. The judgment of the court shall be final except that it

shall be subject to review in the same manner as a judgment in

other civil actions. Any action instituted in accordance with

this subsection shall survive notwithstanding any change in the

person occupying the office of Secretary or any vacancy in such

office.

A-56

20 C. F. R. § 404.957

§ 404.957 Reopening initial, revised, or reconsidered determina-

tions of the Administration and decisions or revised deci-

sions of an Adminstrative Law Judge or the Appeals Coun-

cil; finality or determination and decisions.

An initial, revised, or reconsidered determination of the

Administration or a decision or revised decision of an Admini-

strative Law Judge or of the Appeals Council which is otherwise

final under § 404.908, § 404.916, § 404.940, or § 404.951 may

be reopened:

(a) Within 12 months from the date of the notice of the

initial determination (see § 404.907), to the party to such

determination, or

(b) After such 12-month period, but within 4 years after the

date of the notice of the intital determination (see § 404.907)

to the party to such determination, upon a finding of good

cause for reopening such determination or decision, or

(c) At any time when:

(1) Such initial, revised, or reconsidered determination or

decision or revised decision was procured by fraud or similar

fault of the claimant or some other person; or

(2) An adverse claim has been filed against the same earnings

account; or

(3) An individual previously determined to be dead, and on

whose account entitlement of a party was established, is later

found to be alive; or

(4) The death of the individual on whose account a party’s

claim was denied for lack of proof of death is established by

reason of his unexplained absence from his residence for a

period of 7 years (see § 404.705); or

(5) The initial, revised, or reconsidered determination or

decision or revised decision (for purposes of entitlement under

title II or Part A and Part B of title XVIII, or for purposes of

A-57

the amount of benefits under title II) either;

(i) Denies the individual on whose earnings account such

benefit claim is based gratuitous wage credits for World War II

or post-World Warr II military or naval service because saother

Federal Government agency (other than the Veterans’ Admini-

stration) has erroneously certified that it has awarded benefits

based on such service; or

(ii) Credits the earnings account of the individual on which

such benefit claim is based with such gratuitous wage credits

and another agency of the Federal Government (other than the

Veterans’ Administration) thereafter certifies that it has

awarded a benefit based on the period of service for which such

wage credits were granted.

(7) Such initial, revised, or reconsidered determination or

decision or revised decision was that the claimant did not have

the necessary quarters of coverage for an insured status but

thereafter earnings were credited to his account pursuant to sec-

tion 205(c)(5) (C), (D), or (G) of the Act, which would have

given him an insured status at the time of such determination or

decision if such earnings had been credited to his account then.

(8) Such initial, revised, or reconsidered determination or

decision or revised decision is unfavorable, in whole or in part,

to the party thereto but only for the purpose of correcting

clerical error or error on the face of the evidence on which such

determination or decision was based.

(9) Such initial, revised, or reconsidered determination or

decision or revised decision is that a claimant is entitled to

monthly benefits or to a lumpsum death payment based on the

earnings of a deceased individual and thereafter it is established

that such claimant was finally convicted by a court of compe-

tent jurisdiction of the felonious and intentional homicide of

such deceased individual.

ee iw:

I ts te os

A-58

20 C. F. R. 404.958

§ 404.958 Good cause for reopening a determination or

decision.

“Good cause” shall be deemed to exist where:

(a) New and material evidence is furnished after notice to

the party to the initial determination:

(b) A clerical error has been made in the computation or

recomputation of benefits;

(c) There is an error as to such determination or decision on

the face of the evidence on which such determination or

decision is based.