3 F.

3d 75

42 Soc.Sec.Rep.Ser. 138, Unempl.Ins.Rep. CCH 17432A

Thomas Earl KASEY, Plaintiff-Appellant,
v.
Louis W. SULLIVAN, Secretary of Health and Human
Services,
Defendant-Appellee.
No. 92-1917.

United States Court of Appeals,

Fourth Circuit.
Argued Feb. 5, 1993.
Decided July 30, 1993.

Charles Dodson Bennett, Jr., Fredericksburg, VA, argued, for plaintiffappellant.

Robert S. Drum, Asst. Regional Counsel, Office of the General Counsel,
Dept. of Health and Human Services, Philadelphia, PA, argued (Charlotte
Hardnett, Acting Chief Counsel, Region III, Office of the General
Counsel, Dept. of Health and Human Services, Philadelphia, PA, Richard
Cullen, U.S. Atty., Dennis E. Szybala, Asst. U.S. Atty., Alexandria, VA,
on the brief), for defendant-appellee.
Appeal from the United States District Court for the Eastern District of
Virginia, at Alexandria.
Before MURNAGHAN and WILKINS, Circuit Judges, and CHAPMAN,
Senior Circuit Judge.
OPINION
MURNAGHAN, Circuit Judge:

Appellant Thomas Kasey challenges the order of the United States District
Court for the Eastern District of Virginia granting summary judgment in favor
of the Secretary of Health and Human Services ("the Secretary"). The district

court affirmed the Secretary's final decision denying Kasey's request for a
period of disability and disability insurance benefits commencing May 1, 1982.
I.
2

A review of the record, including testimony and medical evaluations, reflects

that Kasey has suffered in the past from several physical and mental ailments.
Severe abdominal pain and bleeding--stemming largely from heavy alcohol
consumption and abuse--required hospitalization in 1978 and in the early
1980s. Kasey also experienced at that time severe back pain. On February 5,
1982, Kasey filed his first application for disability insurance benefits and
Supplemental Security Income under Titles II and XVI of the Social Security
Act. Kasey alleged a disability, specifically internal bleeding from ulcers, as of
February 1, 1982. Both applications were denied initially and upon
reconsideration. Kasey then requested and received a hearing before an
Administrative Law Judge ("ALJ"). In December 1982, the ALJ issued an
opinion in which he concluded that Kasey was not under a disability, as defined
by the Social Security Act, 42 U.S.C. Secs. 423(d), 1382(c), at any time
through the date of the decision. Considering Kasey's exertional limitations, the
ALJ found that Kasey retained the ability to perform "sedentary work."1 He
further found that Kasey's nonexertional limitations did not significantly affect
his capacity to perform sedentary work.

Kasey's request for review of the ALJ's decision was denied by the Appeals
Council. In denying the review, the Appeals Council noted that it had carefully
considered an additional medical report submitted by Kasey but had concluded
that there was no basis for altering the decision of the ALJ. The report to which
the Appeals Council referred had been prepared by a Dr. Manuel M. Belandres
and indicated that Kasey suffered from cervical radiculopathy and moderately
severe bilateral carpal tunnel syndrome. Kasey thereafter sought judicial review
of his claim pursuant to 42 U.S.C. Sec. 405(g) in the United States District
Court for the Eastern District of Virginia. In June 1984, the district court
affirmed the Secretary's final decision denying Kasey benefits.

Kasey filed no appeal of that decision. However, one day after the district
court's decision, on June 20, 1984, he filed a second application for disability
insurance benefits. Kasey again alleged that he was under a disability
commencing February 1, 1982. Kasey's application alleged that he suffered
from numerous disabling conditions, including cervical and lumbar disc
disease, carpal tunnel syndrome, chronic pancreatitis, hypertension,
hypotension, and anxiety. Kasey supplemented his evidence with further
medical reports from Dr. Belandres which continued to focus on the effects of

carpal tunnel syndrome. The application was again denied initially and upon
reconsideration, and a hearing before a second ALJ followed.
5

In November 1984, the second ALJ denied Kasey's request for disability
benefits. The ALJ first concluded that the request for a hearing concerning any
time period prior to the Secretary's May 16, 1983, final decision would be
dismissed under the doctrine of res judicata.2 The ALJ further noted that no
new material evidence or evidence of fraud or mistake permitted him to alter or
modify the May 16, 1983, final decision. Second, the ALJ denied benefits for
the period of May 16, 1983, through June 30, 1983, the date when Kasey was
last insured,3 after determining that the record contained no specific evidence
pertaining to the additional six weeks and concluding therefore that no
evidence supported a finding of a disability for that time frame.

The Appeals Council again denied Kasey's request to review the decision;
however, Kasey did not then seek judicial review. Instead, he filed a second
application for Supplemental Security Income in August 1985. As Kasey had
complained of being nervous or anxious, his claim was evaluated under the
Secretary's new criteria for claims of mental impairment. The new regulations
were promulgated on August 28, 1985, in response to the enactment of the
Social Security Disability Benefits Reform Act of 1984, Public Law 98-460, 98
Stat. 1794. After being examined by several doctors, Kasey was diagnosed as
suffering from generalized anxiety disorder. He was found to have met the new
listing requirements for anxiety disorders and was awarded supplemental
security income beginning in August 1986. See 20 C.F.R. Pt. 404, Subpt. P,
App. 1 (1992).

In March 1990, Kasey filed his most recent application for a period of disability
and disability insurance benefits. Kasey alleged mental impairment dating back
to 1982 and requested that the determinations on his 1982 and 1984
applications be reopened. The application was again denied initially and upon
reconsideration, and shortly thereafter a third ALJ held a hearing on Kasey's
claims. In light of the promulgation of the new regulations pertaining to mental
impairments, the ALJ concluded that the doctrine of res judicata did not
preclude consideration of Kasey's current application alleging mental
impairments since 1982. Kasey's 1982 and 1984 applications for benefits could
not be technically reopened, however, because Kasey failed to demonstrate any
exceptions to the rules of administrative finality. See 20 C.F.R. Sec. 404.988
(1992) (permitting reopening of applications under certain circumstances). The
ALJ specifically considered and rejected Kasey's argument that "manifest
injustice" permitted the reopening of his 1982 and 1984 applications. The ALJ
further stated that even if the applications could be reopened, the evidence did

not establish a disability prior to June 30, 1983, the date Kasey was last insured.
8

The Appeals Council denied review of the ALJ's decision, and Kasey appealed
the Secretary's final decision to the district court. A United States Magistrate
Judge recommended that Kasey's motion for summary judgment be granted.
The Magistrate Judge found that the Secretary had "constructively" reopened
Kasey's 1982 and 1984 applications.4 After reviewing the evidence, the
Magistrate Judge also concluded that the Secretary's determination that Kasey
was not disabled at the time of his alleged onset date was not supported by
substantial evidence.

The Secretary objected to the findings of the Magistrate Judge. Conducting a de

novo review, the district court concluded that the Secretary did not
constructively reopen Kasey's prior applications and therefore the refusal to
reopen was not reviewable. The district court further found that the Secretary's
decision as to the merits of Kasey's 1990 application for disability benefits was
supported by substantial evidence.

II.
10

On appeal Kasey argues that his 1982 and 1984 applications for disability
benefits are entitled to be reopened and reviewed for several reasons. The ALJ,
he contends, "constructively" reopened his 1982 and 1984 applications and thus
waived a defense of res judicata when he examined in detail the allegations of
mental impairments. See McGowen v. Harris, 666 F.2d 60, 65-66 (4th
Cir.1981) (stating that even though a claim may be the same as one previously
denied for the purposes of res judicata, the case will be deemed reopened and
subject to judicial review if it has been reconsidered on the merits at the
administrative level). Kasey further asserts that he has shown evidence that
several exceptions, primarily "error on the face of the evidence" and "manifest
injustice," permit the reopening of his past claims. Finally, Kasey argues that
the Secretary's finding of no disability prior to the date he was last insured is
not supported by substantial evidence.

11

As a general rule, federal courts lack jurisdiction to review a decision by the

Secretary not to reopen a previous claim for benefits. Califano v. Sanders, 430
U.S. 99, 107-09, 97 S.Ct. 980, 985-86, 51 L.Ed.2d 192 (1977). We have
recognized, however, an exception to that rule when a claim that otherwise
would be barred by res judicata has been, in effect, reconsidered on the merits
at the administrative level. See, e.g., McGowen, 666 F.2d at 65-66. Under such
circumstances there has been a "de facto" or "constructive" reopening by the
Secretary.

12

The rule of de facto reopenings, however, is inapplicable to the instant case.

The ALJ, in reviewing the instant case, correctly stated that the doctrine of res
judicata--a doctrine distinct from the Secretary's rules of administrative finality
and the reopening of claims--was inapplicable to Kasey's 1990 claim for
benefits in light of the change in the regulations governing claims of mental
impairments. The enactment of the Social Security Disability Benefits Reform
Act of 1984 led to the promulgation of new and less-restrictive criteria for
assessing claims of disability based on mental impairments. Kasey's claims
alleging alcoholism and anxiety disorder/depression commencing in 1982 had
not been evaluated under the new regulations. Thus, in the instant case, the ALJ
was required to and did conduct a new and complete investigation, using the
revised mental impairment criteria, into Kasey's claims of mental impairments.
The ALJ, when examining in detail Kasey's history, therefore did not
constructively "reopen" the 1982 and 1984 applications but rather conducted a
distinct examination pursuant to the Act and the changed regulations. A full and
fair examination of Kasey's mental impairment claims necessarily required him
to consider extensively the same evidence and testimony as to mental
impairments that had been offered in support of Kasey's previous applications.

13

Moreover, we agree with the Secretary's findings that, under the applicable
regulations, Kasey failed to demonstrate evidence that would permit a
reopening of his previous claims. The Secretary can reopen a claim within four
years of the date of the notice of the initial determination upon a showing of
"good cause." 20 C.F.R. Sec. 404.988(b) (1992); see also 20 C.F.R. Sec.
404.989(a) (1992) (defining "good cause"). Kasey's claim, however, was filed
more than four years after the determinations of his previous applications. In
addition, section 404.988(c) permits reopening of a claim "at any time" if the
claimant demonstrates evidence of any one of several listed exceptions. 20
C.F.R. Sec. 404.988(c) (1992). Kasey contends that the exception for "error on
the face of the evidence," 20 C.F.R. Sec. 404.988(c)(8),5 applies to his case
primarily because the Secretary, he asserts, failed to consider adequately in the
previous applications the evidence revealing the limitations on the use of his
hands as a result of carpal tunnel syndrome. We note that an "[e]rror on the
face of the evidence does not encompass a disputed issue of fact since, almost
as a matter of definition, when facts are in dispute no single answer is evident."
Robinson v. Heckler, 783 F.2d 1144, 1146 n. 3 (4th Cir.), cert. denied, 476 U.S.
1172, 106 S.Ct. 2896, 90 L.Ed.2d 982 (1986). In light of that definition and
after reviewing the record, we find no error on the face of the evidence such
that it can be said that the previous determinations were clearly incorrect.

14

Kasey also contends that some courts have recognized "manifest injustice" as a
basis for reopening prior claims. See, e.g., Thompson v. Schweiker, 665 F.2d

936, 940-41 (9th Cir.1982) (finding that the record was so obviously
inadequate to support the Secretary's findings that the application of res judicata
would amount to a denial of due process). The exception for manifest injustice
appears to be concerned essentially with fairness in the administrative process
and a denial of due process. Kasey was represented by counsel and, in fact,
appealed all of his claims to the Appeals Council and, for his 1982 claim, to the
federal district court. Like the Secretary, we find no merit to Kasey's contention
that the doctrine of manifest injustice permits a reopening of his 1982 and 1984
claims.
III.
15

Reviewing, therefore, the Secretary's denial of Kasey's 1990 request for a

period of disability and disability benefits, we are limited to determining
whether the findings are supported by substantial evidence and whether the
correct law was applied. 42 U.S.C. Sec. 405(g); Hays v. Sullivan, 907 F.2d
1453, 1456 (4th Cir.1990). We define the phrase "supported by substantial
evidence" as:

16
evidence
which a reasoning mind would accept as sufficient to support a particular
conclusion. It consists of more than a mere scintilla of evidence but may be
somewhat less than a preponderance. If there is evidence to justify a refusal to direct
a verdict were the case before a jury, then there is "substantial evidence."
17

Hays, 907 F.2d at 1456 (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th
Cir.1966)). It is the duty of the ALJ evaluating the case, not the federal courts,
to make findings of fact and to resolve all evidentiary conflicts. Id.

18

We have reviewed the evidence and agree with the district court that there was
at least substantial evidence to support the finding that Kasey was not disabled
prior to June 30, 1983, the date he was last insured. The ALJ examined in detail
Kasey's history to evaluate the alleged impairments of anxiety, depression, and
alcoholism. Although there was evidence of alcohol consumption and
nervousness, there is evidence to support the conclusion that neither alcohol
abuse nor any other mental impairment was so severe on or before the date
Kasey was last insured that Kasey was disabled within the meaning of the
Social Security Act.

19

Accordingly, the judgment of the district court affirming the January 8, 1991,
final decision of the Secretary and granting summary judgment in favor of the
Secretary is

20

AFFIRMED.

Sedentary work refers to activities that involve primarily "lifting no more than
10 pounds at a time and occasionally lifting or carrying articles like docket
files, ledgers, and small tools." 20 C.F.R. Sec. 404.1567(a) (1992)

20 C.F.R. Sec. 404.957(c)(1) (1992) permits an ALJ to dismiss a request for a

hearing on the grounds of res judicata when the Secretary has "made a previous
determination or decision under this subpart about [the claimant's] rights on the
same facts and on the same issue or issues and this previous determination or
decision has become final by either administrative or judicial action."

In order to receive disability insurance benefits, Kasey was required to establish

a disability prior to the expiration of his insured status. See, e.g., 42 U.S.C. Sec.
423(c); 20 C.F.R. Secs. 404.101-404.132 (1992)

The Magistrate Judge also noted in a footnote that "manifest injustice" due to
an "error on the face of the evidence" provided an additional justification for
reopening Kasey's prior applications

Subsection (c)(8) permits a reopening at any time if "[i]t is wholly or partially

unfavorable to a party, but only to correct clerical error or an error that appears
on the face of the evidence that was considered when the determination or
decision was made."