USCA11 Case: 22-11992 Document: 29-1 Date Filed: 05/17/2023 Page: 1 of 7
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11992
Non-Argument Calendar
____________________
TINA KIMBRIL,
Plaintiff-Appellant,
versus
SOCIAL SECURITY ADMINISTRATION, COMMISSIONER,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 5:20-cv-02066-RDP
____________________
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2 Opinion of the Court 22-11992
Before ROSENBAUM, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
Tina Kimbril appeals the district court’s order affirming the
Commissioner of the Social Security Administration’s (“Commis-
sioner”) denial of her March 2019 application for supplemental se-
curity income (“SSI”), under
42 U.S.C. § 405(g) and § 1382(c)(3),
and dismissal for lack of subject-matter jurisdiction of her addi-
tional claim concerning reopening a prior Social Security Admin-
istration (“SSA”) October 2016 determination. She also appeals the
district court’s denial of her Federal Rule of Civil Procedure Rule
59(e) motion to alter judgment, in which she challenged the court’s
dismissal of her reopening claim.
On appeal, Kimbril does not raise any argument with respect
to the Commissioner’s finding that she was not disabled based on
her March 2019 SSI application. She argues only that the Adminis-
trative Law Judge (“ALJ”) failed to address her request to reopen
the October 2016 determination. She clarifies that her “implied ar-
gument” for reopening that prior determination was that the SSA
had erroneously terminated her SSI benefits without a finding of
medical improvement. She further argues that her reopening re-
quest is reviewable based on a colorable constitutional claim relat-
ing to a lack of constitutionally appointed ALJs in October 2016 to
undo the improper termination of her benefits. She concedes that
she did not fully exhaust her administrative remedies, but, relying
primarily on Supreme Court decisions in Carr v. Saul, 141 S. Ct.
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22-11992 Opinion of the Court 3
1352 (2021), and Matthews v. Eldridge,
424 U.S. 319 (1976), and a
nonbinding decision in Shrader v. Harris,
631 F.2d 297 (4th Cir.
1980), she argues that her alleged request to reopen is, nonetheless,
reviewable.
We review the decision of the district court as to its subject-
matter jurisdiction de novo. Sherrod v. Chater,
74 F.3d 243, 245 (11th
Cir. 1996). A district court’s jurisdiction to review claims arising
under the Social Security Act is limited by
42 U.S.C. § 405(g), which
permits review only “after any final decision of the Commissioner
of Social Security made after a hearing.”
42 U.S.C. § 405(g); Cash v.
Barnhart,
327 F.3d 1252, 1255 (11th Cir. 2003). The Act does not
define “final decision,” but instead leaves it to the Commissioner
to give meaning to that term through regulations. Sims v. Apfel,
530
U.S. 103, 106 (2000); see also
42 U.S.C. § 405(a). Under the regula-
tions, a final decision for § 405(g) purposes occurs after a claimant
has completed all steps of the administrative review process, in-
cluding seeking an initial determination, a reconsideration deter-
mination, a hearing decision by an ALJ, and discretionary review
by the Appeals Council. See
20 C.F.R. § 404.900(a)(1)-(5); see also
Weinberger v. Salfi,
422 U.S. 749, 765 (1975) (explaining that the reg-
ulations “specify that the finality required for judicial review is
achieved only after the further steps of a hearing before an admin-
istrative law judge and, possibly, consideration by the Appeals
Council”).
The denial of a request to reopen a prior final and binding
determination, however, is not subject to the administrative
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4 Opinion of the Court 22-11992
review process because such a request is not a “final decision . . .
made after a hearing” under § 405(g).
20 C.F.R. § 404.903(l); Cali-
fano v. Sanders,
430 U.S. 99, 108 (1977); Cash,
327 F.3d at 1256. As
such, federal courts generally lack subject-matter jurisdiction to re-
view a denial of a request to reopen except where: (1) the claimant
raises a colorable constitutional claim, or (2) the Commissioner de
facto reopens and reconsiders the merits of the prior administrative
determination or decision. See Califano,
430 U.S. at 108-09;
Loudermilk v. Barnhart,
290 F.3d 1265, 1268 (11th Cir. 2002). As to
the former, we have explained that: “A constitutional claim relating
to the first application is insufficient to confer subject matter juris-
diction over [an] appeal of the reopening decision. The constitu-
tional issue must concern the proceeding at which the decision not
to reopen was made. Otherwise, constitutional claims arising out
of an administrative proceeding could be preserved indefinitely
through requests to reopen.” Cherry v. Heckler,
760 F.2d 1186, 1190
n.4 (11th Cir. 1985) (determining that due process claim concerning
manner in which Commissioner made decision not to reopen prior
application was sufficient to bestow subject-matter jurisdiction), su-
perseded on other grounds by
20 C.F.R. § 404.1520(a) (1992), as recog-
nized in Passopulos v. Sullivan,
976 F.2d 642, 645-646 (11th Cir. 1992).
In Eldridge, the Supreme Court held that, despite a claimant’s
failure to raise before the Commissioner a claim that the due pro-
cess clause entitled him to an evidentiary hearing before his disa-
bility benefits could be terminated, the district court had jurisdic-
tion over the constitutional claim. Eldridge,
424 U.S. at 329-332. In
explaining its holding, the Court stated that the claimant had fully
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22-11992 Opinion of the Court 5
presented his request for benefits to the Commissioner and the de-
nial of that request “constitute[d] a final decision for purposes of §
405(g) jurisdiction over his constitutional claim,” and that the con-
stitutional challenge was entirely collateral to the claimant’s sub-
stantive claim of entitlement and inappropriate for decision by the
Commissioner. Id. at 330-32.
In Shrader, a claimant sought review of a district court deci-
sion dismissing for lack of jurisdiction an action challenging the
Commissioner’s summary dismissal of a request for an evidentiary
hearing on res judicata grounds. Shrader,
631 F.2d at 299. Before
the district court, the claimant alleged a denial of due process on
the ground that his mental illness prevented him from understand-
ing the procedures to obtain review of the denial of his earlier pro
se claims, which had been denied ex parte.
Id. Relying on Eldridge,
the Fourth Circuit concluded that, notwithstanding the claimant’s
failure to present his constitutional claim to the Commissioner, it
possessed jurisdiction over the constitutional claim because the
constitutional claim was collateral to his claim for benefits and the
consequent denial of benefits was final.
Id. at 300.
In April 2021, in Carr, the Supreme Court determined that
principles of issue exhaustion did not require SSA claimants to ar-
gue before their respective ALJs that the ALJs who originally heard
their cases were not properly appointed. Carr, 141 S. Ct. at 1356,
1362. In so holding, the Court explained that two considerations
tipped the scales against imposing the issue-exhaustion require-
ment on the claimants’ Appointments Clause claims: (1) “agency
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6 Opinion of the Court 22-11992
adjunctions are generally ill suited to address structural constitu-
tional challenges, which usually fall outside the adjudicators’ areas
of technical expertise”; and (2) the Court had consistently recog-
nized a futility exception to exhaustion requirements where adju-
dicators “are powerless to grant the relief requested.” Id. at 1360-
61.
An appellant’s brief must include arguments containing the
appellant’s contentions and reasons for them, with citations to au-
thorities and the record on which the appellant relies. Fed. R. App.
P. 28(a)(8)(A). An appellant forfeits an issue when she raises it in a
perfunctory manner without supporting arguments and authority.
Harner v. Soc. Sec. Admin., Comm’r,
38 F.4th 892, 899 (11th Cir.
2022). Accordingly, an appellant’s mere statement that an issue ex-
ists, will not suffice. Singh v. U.S. Att’y Gen.,
561 F.3d 1275, 1278
(11th Cir. 2009).
In this case, the record does not support a finding that the
ALJ failed to address any request by Kimbril to reopen a prior de-
termination. Kimbril does not dispute that she failed to expressly
raise such a request and the record shows only that Kimbril briefly
mentioned the prior proceeding in the context of discussing miss-
ing medical evidence and her work history at her hearing before
the ALJ. Further, even assuming that such a request was made,
Kimbril’s Appointments Clause claim improperly asserted a due
process claim relating to administrative proceedings from Kimbril’s
prior October 2016 application, and, thus, Kimbril’s constitutional
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22-11992 Opinion of the Court 7
claim was jurisdictionally deficient under Cherry,1 even in light of
Carr, Eldridge, and Shrader. Finally, because Kimbril does not raise
any argument with respect to the district court’s denial of her mo-
tion to alter judgment, she has abandoned any challenge in this re-
spect. 2 Accordingly, we affirm.
AFFIRMED.
1 See Cherry,
760 F.2d at 1190 n.4 (“A constitutional claim relating to the first
application is insufficient to confer subject matter jurisdiction over this appeal
of the reopening decision. The constitutional issue must concern the proceed-
ing at which the decision not to reopen was made. Otherwise, constitutional
claims arising out of an administrative proceeding could be preserved indefi-
nitely through requests to reopen.”).
2 As we noted above, Kimbrel also does not raise any argument with respect
to the Commissioner’s finding that she was not disabled based on her March
2019 SSI application. Accordingly she has abandoned any challenge in this re-
spect.
