Mary Outlaw v. Jo Anne B. Barnhart , 40 F. App'x 330 ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-1367
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Mary Outlaw, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Jo Anne B. Barnhart, Commissioner, * [UNPUBLISHED]
Social Security Administration, *
*
Appellee. *
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Submitted: July 5, 2002
Filed: July 9, 2002
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Before WOLLMAN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
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PER CURIAM.
Mary Outlaw appeals the district court’s1 order dismissing for lack of
jurisdiction her complaint seeking review of the Commissioner’s denial of disability
insurance benefits. We affirm.
1
The Honorable Bobby E. Shepherd, United States Magistrate Judge for the
Western District of Arkansas, to whom the case was referred for final disposition by
consent of the parties pursuant to 28 U.S.C. § 636(c).
The Commissioner rejected Outlaw’s 1997 benefits claim, finding that it was
by then too late to reopen a 1989 adverse determination, and that administrative res
judicata barred consideration of the new application. After Outlaw sought judicial
review under 42 U.S.C. § 405(g), the district court determined that it lacked
jurisdiction to review the propriety of the Commissioner’s res judicata-based denial.
On appeal, Outlaw argues that giving res judicata effect to her 1989 application was
inappropriate and a denial of due process because (1) the file concerning the 1989
determination has not been located, (2) the Social Security Administration (SSA)
constructively reopened the 1989 determination by considering her present
application on the merits, (3) new and material evidence was submitted in connection
with the present application, and (4) she did not receive a hearing in connection with
the 1989 determination.
After carefully reviewing the record, see Boock v. Shalala, 48 F.3d 348, 351
& n.2 (8th Cir. 1995) (de novo standard of review), we agree with the district court
that it lacked jurisdiction. This court has recognized only two exceptions to the
general rule precluding judicial review of the Commissioner’s decisions denying
applications on the basis of administrative res judicata. See Yeazel v. Apfel, 148 F.3d
910, 911-12 (8th Cir. 1998). We conclude that neither exception applies here. First,
we do not believe that the Commissioner could constructively reopen Outlaw’s 1989
determination. See King v. Chater, 90 F.3d 323, 325 (8th Cir. 1996) (no constructive
reopening may occur after time period for reopening has elapsed under regulations);
20 C.F.R. §§ 404.988(b)-(c), 416.1488(c) (2001) (setting forth applicable time
periods for reopening). Second, Outlaw has not presented a colorable constitutional
claim. See Boock, 48 F.3d at 352. The existence of a 1989 adverse determination--
despite the missing file--was supported by the record as a whole, and Outlaw was
given an opportunity to present any conflicting evidence. See Dusenberry v. United
States, 122 S. Ct. 694, 699 (2002) (due process analysis). Further, due process did
not require the Commissioner to hold a hearing on the 1989 denial before giving it
preclusive effect, see Yeazel, 148 F.3d at 912 (recognizing preclusive effect of
-2-
unappealed SSA determinations issued without hearing; claimant cannot complain
of due process violation from lack of hearing if she elected not to pursue one), or to
consider new evidence some eight years after the 1989 determination.
The judgment is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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