                                  ___________

                                  No. 95-2461
                                  ___________

Leon King, *
                                   *
            Appellant,             *
                                   * Appeal from the United States
      v.                           * District Court for the Eastern
                                   * District of Arkansas.
Shirley S. Chater,                 *
Commissioner, Social Security      *
Administration,                    *
                                   *
           Appellee.               *
                              ___________

                   Submitted:     February 14, 1996

                         Filed:   July 25, 1996
                                  ___________

Before BOWMAN, BEAM, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                               ___________

BEAM, Circuit Judge.


      Leon King appeals the district court's1 dismissal, for lack of
jurisdiction, of his action seeking constructive reopening of a previously
denied claim for social security benefits.      We affirm.


I.   BACKGROUND


      King filed a claim for social security benefits in 1987, alleging an
onset date of 1985 for back problems and hypertension.        The claim was
denied and King did not appeal.    Five years and five months later he filed
another application alleging the same onset date.      In the meantime, the
regulations for determinations of




      1
     The Honorable H. David Young, United States Magistrate Judge
for the Eastern District of Arkansas, acting with consent of the
parties under 28 U.S.C. § 636(c).
disability with respect to cardiovascular impairments had changed.         The
Administrative Law Judge (ALJ) reviewed all the medical records and found
a disability dating back to 1985.


     The ALJ's decision is arguably ambiguous with respect to whether the
earlier claim had been reopened, so as to entitle King to retroactive
benefits back to 1985.     The ALJ first stated "[t]he undersigned observes
that more than 4 years has elapsed since the notice of the initial
determination, and there is no good cause to reopen this case."     Addendum
to Brief for Appellant at AD-4.       After finding that King was disabled,
however, the ALJ stated:      "[t]he initial denial determination dated July
29, 1987, is hereby reopened and revised in accordance with the provisions
of [the Social Security Act] in order to effectuate this decision."        Id.
at AD-7.   The ALJ awarded benefits, however, as though the case had not
been reopened; i.e., retroactive benefits for one year prior to the
application.2


     King sought review by the Appeals Council.       He requested reopening
and payment on the basis of the 1987 application.       The Appeals Council
denied review, noting:

     you are not entitled to court review . . . of the
     Administrative Law Judge's denial of your request for
     reopening. The Appeals Council notes that the recent revision
     of provisions in the Listing of Impairments for evaluation of
     cardiovascular impairments allowed the Administrative Law Judge
     to consider the issue of disability during the previously
     adjudicated period. However, this change in the law does not
     permit   reopening   and   revision   of   the  prior   adverse
     determination.


Appellant's Appendix at 41.    King then appealed to the district court.   The
district court dismissed finding it lacked jurisdiction




      2
       The Social Security Act allows retroactive benefits for a
period of up to one year prior to the date of application. 20
C.F.R. § 404.621(a)(1)(i).

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to review a decision not to reopen.     King v. Chater, No. J-C-94-313, slip
op. at 3-4 (E.D. Ark. May 25, 1995).        The district court also found that
"constructive reopening would have been impossible in the instant case,
since more than four years had passed since the prior denial, and plaintiff
was thus beyond the time allowed for reopening for good cause by 20 C.F.R.
§ 404.988."   Id. at 2-3.   On appeal, King contends that the district court
erred in dismissing his claim for lack of jurisdiction because his claim
had been "constructively reopened," thus conferring jurisdiction on the
district court.


II.   DISCUSSION


      Absent a colorable constitutional challenge, federal courts generally
do not have jurisdiction to review refusals to reopen claims for disability
benefits.   Califano v. Sanders, 430 U.S. 99, 107-09 (1977).    However, there
is an exception to this general rule:    where a claim has been reconsidered
on the merits, it is properly treated as having been reopened as a matter
of administrative discretion.    Jelinek v. Heckler, 764 F.2d 507, 508 (8th
Cir. 1985).   Consequently, the decision is subject to judicial review to
the extent that it has been reopened.    Id.    This is known as a constructive
or de facto reopening.


      A claim can be reopened for any reason for up to one year after a
decision; or may be reopened for good cause for up to four years.3          20
C.F.R. § 404.988(a) & (b).    Here, the ALJ expressly noted that good cause
to reopen King's earlier application did not exist.        The ALJ's seemingly
contradictory statement can be interpreted to mean that the earlier case
was considered only to the extent necessary to effectuate the result of the
award of




      3
      A claim may be reopened at any time for one of eleven fact-
specific reasons that do not apply to this case.       20 C.F.R.
§ 404.988(c)(1)-(11).

                                      -3-
benefits; i.e., in order to find that King was disabled on or before the
date his insured status expired.          We thus conclude that the ALJ did not
address the merits of King's earlier claim.


       King's claim was reviewed following a change in the regulations
relating to heart disease.         Although the ALJ considered medical evidence
dating back to 1985 and found that King had been disabled in 1985, we
believe that he did so only in connection with the 1992 application.               Mere
consideration of evidence from an earlier application is not considered a
reopening of the earlier claim.          Boock v. Shalala, 48 F.2d 348, 352 n.4
(8th Cir. 1995).     Accordingly, we determine that there has been no de facto
or constructive reopening so as to confer jurisdiction on the court.


       Alternatively, whether the ALJ considered the earlier claim or not,
reopening the case more than four years after the initial denial would
exceed the authority of the ALJ.            See id. at 352.         There can be "no
constructive reopening after four years because [the] concept `cannot
extend beyond the scope of authority granted under the regulations.'"               Id.
(quoting Coates v. Bowen, 875 F.2d 97, 101 (7th Cir. 1989)).                   See also
Robinson v. Heckler, 783 F.2d 1144, 1146 & n.3 (4th Cir.), cert. denied,
476 U.S. 1172 (1986).        Therefore, regardless of any ambiguity in the ALJ's
order, King's earlier claim cannot be reopened because more than four years
had elapsed since the initial denial of benefits.


III.   CONCLUSION
       For   the   reasons    stated   above,   we   affirm   the   district    court's
dismissal.




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A true copy.


     Attest:


           CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.




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