case_cite">445 F.2d 852

Carlos E. GOFF, Plaintiff-Appellant,
v.
Robert H. FINCH, Secretary of Health, Education and Welfare, Defendant-Appellee.

No. 20939.

United States Court of Appeals, Sixth Circuit.

July 16, 1971.

John E. Acuff, Cookeville, Tenn., for appellant; W. Keith Crawford, Cookeville, Tenn., on brief.

George E. LeFevre, Nashville, Tenn., for appellee; Charles H. Anderson, U. S. Atty., Nashville, Tenn., on brief.

Before McCREE, BROOKS and KENT, Circuit Judges.

PER CURIAM.

This is an appeal from an order of the District Court, 317 F.Supp. 35, entered August 18, 1970, dismissing the appellant's application for review of the defendant Secretary's determination that appellant's Social Security disability benefits should be reduced proportionately, as provided in 42 U.S.C. § 424a, because of Workmen's Compensation benefits received by the appellant under the laws of the State of Tennessee.

It appears from the record that the appellant suffered an industrial injury in 1963 for which he was awarded benefits under the laws of Tennessee. He also applied for and received Social Security disability benefits under the provisions of Title 42 U.S.C. §§ 416(i) and 423.

In 1964 he was elected to the office of County Tax Assessor and assumed the duties of that office. Thereafter, an order was entered by the Secretary terminating his disability benefits on the ground that because of his employment as, and performance of the duties of County Tax Assessor, he was no longer disabled within the meaning of the applicable statute. An appeal was taken to the District Court from the order terminating the disability benefits, and by order of the District Court the claim was remanded for further consideration. The appeal from the Secretary's order terminating Social Security benefits, effective August 31, 1965, was ultimately dismissed by the District Court by an order entered March 26, 1968, and no appeal was taken from that order of the District Court.

While the appeal was pending in the District Court, the appellant was awarded Social Security disability benefits based upon an application dated February 1, 1967, subject to proportionate deduction as set forth above. It is from this order that the present appeal is taken. We are of the opinion that the decision of the Secretary terminating disability benefits in 1965, the appeal from which was finally dismissed on review by the District Court, is res judicata and final. Sangster v. Gardner, 374 F. 2d 498 (6th Cir. 1967), Domozik v. Cohen, 413 F.2d 5 (3rd Cir. 1969). The appellant's right to Social Security disability benefits must be limited to those awarded pursuant to the application filed on February 1, 1967.

The judgment of the District Court is affirmed.

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