Dudley v. Social Security , 2 F. App'x 61 ( 2001 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1751
HAROLD DUDLEY,
Plaintiff, Appellant,
v.
KENNETH S. APFEL,
COMMISSIONER OF SOCIAL SECURITY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Boudin, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Francis M. Jackson on brief for appellant.
Jay P. McCloskey, United States Attorney, Charlotte J.
Hardnett, Acting General Counsel, Frank V. Smith, III, Acting
Principal Deputy General Counsel, John M. Sacchetti, Associate
General Counsel for Program Litigation, and Etzion Brand,
Supervisory Attorney, Office of the General Counsel, Social
Security Administration, on brief for appellee.
March 16, 2001
Per Curiam. Appellant Harold Dudley appeals from the
judgment of the district court that it lacked jurisdiction over
his (appellant's) appeal from a final decision of the
Commissioner of Social Security. The Commissioner's final
decision – made by the Appeals Council – was that appellant's
application for disability benefits was barred by res judicata.
In particular, appellant had filed a prior application, which
concerned the same issues and the same time period, and had
failed to seek Appeals Council review of the determination of
the administrative law judge (ALJ) that appellant was not
disabled. Due to appellant's omission, this determination
became final and binding.
It is well-settled that the denial of an application for
disability benefits based on res judicata is not subject to
judicial review. See Torres v. Secretary of Health and Human
Services, 845 F.2d 1136, 1138 (1st Cir. 1988) (per curiam);
Matos v. Secretary of Health, Education and Welfare, 581 F.2d
282, 285-86 (1st Cir. 1978). Appellant nonetheless raises two
arguments in support of finding jurisdiction. His first
argument is that where there has been a reopening of the prior
application, the Commissioner is estopped from invoking res
judicata. This is not availing here because even though the ALJ
had decided that the prior application should be reopened, the
Appeals Council nullified this decision. See Tobak v. Apfel,
195 F.3d 183 (3rd Cir. 1999). Thus, as the district court
found, there has been no reopening.
Appellant's second argument is based on the exception to the
rule of unreviewability where a claimant raises a "colorable"
constitutional claim regarding an administrative decision based
on res judicata. See Torres, 845 F.2d at 1138; Matos, 581 F.2d
at 286 n.6. A common claim, in this context, is that a
claimant's mental impairment, and lack of legal representation,
prevented him or her from timely pursuing administrative
remedies concerning the claimant's prior application. This is
the claim appellant raises and the district court rejected it as
not "colorable." We agree for essentially the reasons stated in
the recommended decision of the magistrate judge, which the
district judge adopted. We add only the following comments.
First, even assuming that appellant was unrepresented at the
relevant time, he does not dispute the Appeals Council's
description of the 1992-1993 treatment notes from the Eastport
Health Center. According to the Council, these notes did not
mention anything unusual about appellant's mental condition and
thus did not support the conclusion that claimant was mentally
unable to pursue his administrative remedies during this time.
Second, appellant does not point to any medical evidence
concerning the specific effects of his depression on his
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abilities to understand and follow administrative procedures.
That is, appellant cites to no evidence that, for instance, he
was confused, had a thought disorder or poor intellectual
functioning, or was not capable of functioning responsibly.
That Drs. DiTullio and Pasternak concluded that appellant was
"disabled" is not enough, standing alone, to show that appellant
was incapable of comprehending or pursuing his administrative
remedies. Cf. Torres v. Secretary of Health, Education, and
Welfare, 475 F.2d 466, 468-69 (1st Cir. 1973) (remanding to the
Secretary for further proceedings concerning the effect of
claimant's mental impairment on his ability to follow his
administrative remedies, but noting that the finding that
claimant was disabled based on his nerves only meant that
claimant was "occupationally disabled" within the meaning of the
Social Security Act; "one may be so disabled and yet retain the
awareness and mental capacity to understand and pursue one's
rights").
Finally, we note that the fact that the Commissioner did not
file the entire administrative record below does not require a
remand in this case. Appellant cites to no authority requiring
such a filing where jurisdiction is contested and the
Commissioner does not file an answer. See 42 U.S.C. § 405(g).
Our comments in Torres are not to the contrary. See 845 F.2d at
1137 n.1. And, although appellant alluded below to the absence
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of the complete record, he never filed a motion specifically
requesting the district court to order the Commissioner to
submit the record. As a result, this objection is not well
taken.
The judgment of the district court is affirmed.
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