Norkey v. Celebrezze , 225 F. Supp. 754 ( 1963 )

BODY, District Judge.

This action is before the Court on review of a decision of the Secretary of Health, Education and Welfare which partially denied plaintiff’s claim for disability benefits under the Social Security Act. Jurisdiction is based on 42 U.S.C. 405(g).

The record shows that plaintiff applied for benefits on November 8, 1957 claiming disability beginning on or about May 3, 1957. The primary medical reason for this was alleged to be hypertensive cardiovascular disease. On April 22, 1958 defendant denied benefits specifically finding that plaintiff was not disabled. There was no exhaustion of administrative remedies thereafter and the time for judicial review expired.

Plaintiff filed the application which is the basis for this suit on July 26, 1960. He again claimed disability beginning May 3, 1957. Defendant found that disability existed from July 1959. This, finding was based upon evidence of an additional impairment of plaintiff’s capacity to work resulting from bronchial asthma.

Plaintiff had the opportunity to establish disability beginning on May 3, 1957 and he cannot again raise that issue. Phillip v. Ribicoff, 211 F.Supp. 510 (E.D.Pa.1962); affirmed per curiam, Phillip v. Celebrezze, 319 F.2d 530 (3d Cir. 1963); 20 C.F.R. Section 404.937.

ORDER

And now, this 26th day of December, 1963, in accordance with the foregoing Memorandum, it is ordered that the motion of the plaintiff, John J. Norkey, for-summary judgment be and the same is. hereby denied.

It is further ordered that the motion of the defendant, Anthony J. Celebrezze, Secretary of Health, Education and Welfare, for summary judgment be and the same is hereby granted and the Complaint is dismissed.