                                                      United States Court of Appeals
                                                               Fifth Circuit
                                                            F I L E D
                  UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                 June 29, 2006

                                                        Charles R. Fulbruge III
                                                                Clerk
                           No. 05-51169
                         Summary Calendar




     KENNETH RIECKE,
                                         Plaintiff - Appellant,

                                 v.


     JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,

                                         Defendant - Appellee.




          Appeal from the United States District Court
                for the Western District of Texas
                           1:04-CV-348



Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

     Kenneth Riecke is seeking disability insurance benefits under

Title II of the Social Security Act.    He was denied benefits in

1999 and filed a second application for benefits in 2002 that was

also denied.   This appeal asks whether the district court erred in

holding that it lacked jurisdiction to review the res judicata

dismissal of the second application.        As explained below, the


     *
     Pursuant to 5TH CIR. R. 47.5, this Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
dismissal was not error.

                      FACTS AND PROCEDURAL HISTORY

     On June 25, 1998, Riecke filed his first application for

disability benefits, claiming he had been disabled since January 1,

1991, with a last insured date of March 31, 1991.             The application

stated that lower back pain, ringing in the ears, and post-

traumatic   stress    disorder   prevented    him    from    working.1    This

application was denied initially and on reconsideration.                   On

Riecke’s request, an administrative law judge, Judge Vila, held a

hearing to consider the application.         Riecke appeared in person at

the hearing, and, after Judge Vila fully advised him of his right

to retain counsel, Riecke agreed to proceed without representation.

     Judge Vila found that Riecke was not disabled at any time

through the date of his decision, June 18, 1999.               He found that

neither the objective medical evidence nor Riecke’s testimony

established    that   he   was   impaired   at   a   level    that   prevented

sedentary employment.      The Appeals Council denied Riecke’s request

for review.    He did not appeal to the United States District Court.

     On September 12, 2002, Riecke filed his second application for

benefits.     It alleged disability commencing December 1, 1983, due

to chronic neck and back pain, nerve damage, asthma, degenerative

disc disease, hearing loss, residuals from a wrist injury, and

post-traumatic stress disorder.          As he did in the first appeal,

     1
     Riecke asserts that these conditions were caused, in part,
by his service in the Vietnam War.

                                     2
Riecke   used    a   last    insured   date   of    March   31,   1991.    This

application was denied initially and on reconsideration.                  Again

Riecke requested a hearing.

     The administrative law judge reviewing Riecke’s case, Judge

Gough, dismissed this application on res judicata grounds without

a hearing.      Judge Gough found that the issues covered during the

hearing before Judge Vila involved the same facts and law raised in

the second application. Judge Gough found no grounds for reopening

the prior decision.         The Appeals Council upheld the decision, and

Riecke appealed to the United States District Court.                 The court

found that it lacked jurisdiction to review the res judicata

dismissal of Riecke’s second application.             Riecke appealed.

                                  DISCUSSION

     Judicial review of a decision denying disability claims is

only available “after any final decision . . . made after a

hearing.”    42 U.S.C. § 405(g) (2000).            When an administrative law

judge dismisses a case on res judicata grounds,2 that finding is

generally not reviewable because it is not a final decision after

a hearing.      See Califano v. Sanders, 430 U.S. 99, 108 (1977);

Hensley v. Califano, 601 F.2d 216, 216 (5th Cir. 1979) (per curiam)

(“[R]efusals to reopen and determinations that a claim is res



     2
     A res judicata dismissal is appropriate when a subsequent
application for disability benefits alleges the same facts and
issues made in the previous application. 20 C.F.R. §
404.957(c)(1).

                                       3
judicata are not reviewable”).               Jurisdiction does exist, however,

when     a    plaintiff    raises       a    colorable     constitutional     claim.

Brandyburg v. Sullivan, 959 F.2d 555, 562 (5th Cir. 1992).

       As    previously    set    forth,      Judge     Gough   dismissed   Riecke’s

application on res judicata grounds. Therefore, the district court

only had jurisdiction if Riecke had a colorable constitutional

claim.        Sanders,    480    U.S.   at       109.    Riecke   argued    that   the

proceedings violated his right to due process and right to counsel.

The district court rejected these arguments.                      Our review is de

novo.       Hashemite Kingdom of Jordan v. Layale Enter., S.A. (In re

B-727 Aircraft Serial No. 21010), 272 F.3d 264, 269 (5th Cir.

2001).

       Riecke’s due process argument fails.                 After the decision by

Judge Vila, Riecke could have sought judicial review.                  Instead, he

filed a subsequent application covering the same issue, i.e.,

disability prior to March 31, 1991.                     Sanders provides that “a

claimant is not given a guarantee of a second hearing” when he

waives previous opportunities for review.                       Matos v. Sec’y of

Health, Educ. & Welfare, 581 F.2d 282, 285 (1st Cir. 1978).                         In

addition, Riecke received a full and fair hearing of his initial

application, and, because the second application covered the same

issue, it was not a due process violation to deny a second




                                             4
hearing.3

      Likewise, Riecke’s argument concerning counsel fails.              There

is   no   constitutional   right    to    counsel   at   a   Social   Security

Administration hearing.      Brandyburg, 959 F.2d at 562; Clark v.

Schweiker, 652 F.2d 399, 403 (5th Cir. 1981).

                               CONCLUSION

      For the above-mentioned reasons, the district court did not

err in holding that it lacked jurisdiction to hear the appeal of

the res judicata dismissal.        Riecke failed to present a colorable

constitutional claim as required by Sanders and Brandyburg.

      AFFIRMED.




      3
     Riecke also contends that he did not get a fair hearing
because of alleged medical problems suffered by Judge Gough.
Riecke, however, offers no evidence of Judge Gough’s condition
and no authority for how such a condition would create a
constitutional claim. This Court does not consider such vague,
unsupported arguments. Foster v. Townsley, 243 F.3d 210, 212 n.1
(5th Cir. 2001) (issues inadequately briefed are deemed waived).

                                      5
