Leonard P. Stuckey v. Caspar W. Weinberger, Secretary of Health, Education, and Welfare

488 F.2d 904 Leonard P. STUCKEY, Appellant, v. Caspar W. WEINBERGER, * Secretary of Health, Education, and Welfare, Appellee. No. 25487. United States Court of Appeals, Ninth Circuit. Nov. 21, 1973. Leonard P. Stuckey in pro. per. Sidney I. Lezak, U. S. Atty., Portland, Or., Alan S. Rosenthal, Atty. (argued), William D. Ruckelshaus, Asst. Atty. Gen., Civil Div., Dept. of Justice, Washington, D.C., for appellee. Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE, and SNEED, Circuit Judges. OPINION 1 ELY, Circuit Judge (with whom CHAMBERS, KOELSCH, WRIGHT, TRASK, CHOY, GOODWIN and SNEED, JJ., concur): 2 Stuckey appeals from the District Court's dismissal, for lack of jurisdiction, of his complaint seeking review of an administrative determination denying reopening, in part, of his claims for disability insurance benefits. We affirm. 3 In 1954, Stuckey suffered a severe back injury. Shortly thereafter, in 1955, he filed a claim with the Social Security Administration ("SSA") for disability benefits. That claim was denied, both initially and upon reconsideration, 1 because Stuckey failed sufficiently to demonstrate that he was…

ELY, Circuit Judge (with whom CHAMBERS, KOELSCH, WRIGHT, TRASK, CHOY, GOODWIN and SNEED, JJ., concur):

Stuckey appeals from the District Court’s dismissal, for lack of jurisdiction, of his complaint seeking review of an administrative determination denying reopening, in part, of his claims for disability insurance benefits. We affirm.

In 1954, Stuckey suffered a severe back injury. Shortly thereafter, in 1955, he filed a claim with the Social Security Administration (“SSA”) for disability benefits. That claim was denied, both initially and upon reconsideration, 1 *907 because Stuckey failed sufficiently to demonstrate that he was disabled within the meaning of the Social Security Act. 2 The denial of benefits was reaffirmed after a hearing conducted at Stuckey’s request. The SSA Appeals Council declined to review the decision of the hearing officer. Having exhausted his administrative remedies, Stuckey filed an action in the District Court. That court remanded to the SSA, upon the agency’s request, for further consideration because Stuckey, after filing, entered a hospital for further treatment of his back. Upon remand, the SSA conducted a supplemental hearing at which…

(with whom BROWNING, DUNIWAY, HUFSTED-LER and WALLACE, JJ., concur) concurring :

I concur in the result. The reasons advanced by Judge Ely for according respect to earlier administrative determinations on the basis of administrative res judicata provide ample grounds for affirming on the merits the decision of the Secretary to deny reopening.

However, I agree with the Second Circuit, for th.e reasons set forth in Cappadora v. Celebrezze, 356 F.2d 1 (2d Cir. 1966), that a limited area of judicial review has been afforded by the Administrative Procedure Act, and that the second sentence of 42 U.S.C. § 405 (h) should not be construed to preclude judicial review; that that sentence “simply forbids attempts to review final decisions on the merits by any route other than that provided in § 405(g).” 356 F.2d at 5 . (Emphasis supplied.) Proceeding to limited review of the Secretary’s decision here, I would affirm that decision on the merits.