Joyce E. Kiser v. Louis W. Sullivan, Secretary of Health and Human Services , 898 F.2d 146 ( 1990 )

898 F.2d 146
Unpublished Disposition

NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit.
Joyce E. KISER, Plaintiff-Appellant,
v.
Louis W. SULLIVAN, Secretary of Health and Human Services,
Defendant-Appellee.

No. 89-2690.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 12, 1990.
Decided: March 5, 1990.

Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Albert V. Bryan, Jr., Chief District Judge. (C/A No. 88-783-A)

Bruce Knight Billman, Rice, Stallknecht, Billman & Meyer, Woodbridge, Va., for appellant.

Stanley Ericsson, Office of the General Counsel, Department of Health and Human Services, Baltimore, Md., for appellee. On brief: Stuart E. Schiffer, Acting Assistant Attorney General, Donald A. Gonya, Chief Counsel for Social Security Litigation, Randolph W. Gaines, Deputy Chief Counsel for Social Security Litigation, John M. Sacchetti, Chief, Retirement, Survivors and Supplemental Assistance Litigation Branch, Department of Health and Human Services, Baltimore, Md., Deborah Fitzgerald, Assistant Regional Counsel, Department of Health and Human Services, Philadelphia, Pa., Paula P. Newett, Assistant United States Attorney, Baltimore, Md., for appellee.

Before PHILLIPS, Circuit Judge, BUTZNER, Senior Circuit Judge, and JOSEPH H. YOUNG, Senior United States District Judge for the District of Maryland, sitting by designation.

PER CURIAM:

1

The appellant, Joyce Kiser, contests the dismissal of her application for Social Security Benefits filed in February 1987. She had filed an application in August 1985, which was denied. She thereafter sought reconsideration, but the denial was affirmed in January 1986. Although she sought no hearing on this case, she filed another application for disability benefits in February 1987. She concedes that she was last insured under the Social Security Act on June 30, 1985, but alleges that she has been disabled since 1978.

2

In reviewing Kiser's 1987 application, the Social Security Administration ("SSA") found that she was not disabled prior to June 30, 1985, and that this issue was res judicata from the 1985 application proceedings. Kiser filed an untimely request for reconsideration on June 1, 1987, and a request for a hearing on August 4, 1987. She indicated, however, that she had no new evidence to present. The Administrative Law Judge ("ALJ") dismissed the request for a hearing on the grounds of res judicata pursuant to 20 C.F.R. Sec. 404.958(c). The ALJ also found that no "good cause" existed to reopen the prior determination under 20 C.F.R. Secs. 404.988 and 404.489. Kiser appealed this decision to the Appeals Council at the SSA, but the dismissal was affirmed.

3

Kiser then filed a complaint for review with the district court under 42 U.S.C. Sec. 405(g) and argued that administrative res judicata should not apply to her claim and that refusal to grant her a hearing constitutes a deprivation of a statutory entitlement without due process of law. The magistrate to whom the case had been referred recommended dismissal for lack of jurisdiction because of res judicata and found that the dismissal did not violate due process. The district court adopted that recommendation and this appeal followed.

4

We agree with the disposition by the district court and affirm for the reasons set forth in the opinion below.

5

AFFIRMED.