
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                ____________________       No. 97-1245                                 THOMAS R. BOOTHBY,                                Plaintiff, Appellant,                                         v.                    SOCIAL SECURITY ADMINISTRATION COMMISSIONER,                                Defendant, Appellee.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                ____________________                                       Before                               Selya, Boudin and Lynch,                                   Circuit Judges.                                ____________________            Francis M. Jackson on brief for appellant.            Jay  P.  McCloskey, United  States  Attorney,  David R.  Collins,       Assistant  United  States Attorney,  and Thomas  D. Ramsey,  Assistant       Regional                Counsel,                         Office                               of the Chief Counsel, Region I, Social Security       Administration, on brief for appellee.                                ____________________                                  November 18, 1997                                ____________________                 Per Curiam.  In  February 1992, claimant Thomas  Boothby            filed  a  pro  se  application  for  SSI  benefits,  alleging            disability on account of alcoholism and depression.  When his            application was denied at the administrative level,  claimant            failed  to seek  further review.   In  September 1993,  after            suffering a heart attack, he filed a second such  application            and, with the assistance  of counsel, was eventually  awarded            benefits pursuant thereto.   The ALJ rejected his request  to            reopen  the first  application,  however,  finding  that  new            evidence                     documenting                                his                                    mental impairments failed to establish            "good cause" for doing so.  See 20 C.F.R. S 416.1488.   After            the                Appeals                       Council                               declined review, claimant filed this action            in district  court challenging  the denial  of his  reopening            request.   From a  judgment dismissing the  suit for lack  of            jurisdiction, he now appeals.                   The denial  of a request  to reopen  an application  for            disability benefits is  ordinarily not reviewable in  federal            court.  See, e.g.,  Califano v. Sanders, 430 U.S. 99,  107-09            (1977); Colon v. Secretary of HHS, 877 F.2d 148, 152-53  (1st            Cir. 1989)  (per curiam).  An  exception to this rule  exists            where a colorable  constitutional claim  has been  presented.            See              ,                 e.g.                    ,                       Sa                        nders, 430 U.S. at 109; Dvareckas v. Secretary of            HHS              ,                 804                     F.2d 770, 772 (1st Cir. 1986) (per curiam).  Claimant            has attempted  to advance  such a  claim here--arguing  that,            because                    his                       mental                              impairments prevented him from understanding                                         -2-            and                pursuing                        his                            administrative remedies, and because he lacked            legal                                                       o            reopen                   the                       first application contravened due process.  Such an            argument, when factually  supported, has  gained a  favorable            judicial                     reception.                                                               See                                  ,                                    e.g., Evans v. Chater, 110 F.3d 1480,            1482-83 (9th Cir. 1997) (listing cases); Parker v.  Califano,            644                                   Torres                  or  other representation at  the time,  the refusal  t                F.2d 1199, 1203  (6th Cir. 1981);        v. Secretary  of            HEW, 475  F.2d 466, 468-69 (1st  Cir. 1973); see also  Social            Security Ruling (SSR) 91-5p; Acquiescence Ruling 90-3(4).  As            one                court                      has                         observed,                                   "It offends fundamental fairness ... to            bind                 a                   claimant to an adverse ruling who lacks both the mental            competency and the legal assistance necessary to contest  the            initial                    determination."                                                                       Young v. Bowen, 858 F.2d 951, 955 (4th            Cir. 1988).1               1  Inexplicably, claimant made no mention of the due            process issue in his complaint or in his "itemized statement"            (although he did there refer to the analogous SSR 91-5p).             The first written reference thereto appears in his objections            to the magistrate-judge's report; it is unclear whether the            issue was earlier raised at oral argument.  Any claim not            presented to the magistrate-judge would be waived.  See,            e.g., Borden v. Secretary of HHS, 836 F.2d 4, 6 (1st Cir.            1987).  Yet because the Commissioner has not argued that any            such waiver occurred, we need not pursue the matter.             Similarly, because the Commissioner has not contended that            the constitutional claim was subject to the administrative            exhaustion requirement, we need not address the issue.  See,            e.g., Shrader v. Harris, 631 F.2d 297, 300 (4th Cir. 1980)            (excusing failure to present due process issue to Secretary).                                         -3-                 On appeal, the Commissioner does not take serious  issu                        opositions.   Instead, he argues that the medical                      falls  short  of  "definitively  establishing  tha                                                                        e            with                 these                       pr           2            evidence                                                    t            plaintiff was unfit  to pursue  the remaining  administrative            remedies."  Brief  at 12.  Yet  the relevant inquiry here  is            whether  a  "colorable"   due  process  violation  has   been            demonstrated.  This is  not an onerous standard.  See,  e.g.,            Evans                ,                   110                       F.3d                           at                              1483                                   (noting that "plaintiff whose challenge            was                not                   'wholly                           insubstantial, immaterial, or frivolous' stated            a colorable  constitutional  claim")  (quoting  Boettcher  v.            Secretary                      of                         HHS, 759 F.2d 719, 722 (9th Cir. 1995)); Boock v.            Shalala                  ,                     48                       F.3d                            348,                                 353 (8th Cir. 1995) (indicating that only            those claims  that were "patently  frivolous" would "fail  to            confer jurisdiction upon the district court") (Campbell,  J.,            sitting by designation).                 Upon review of the evidence here, we find that  claimant            has presented  a colorable due  process claim.   Dr.  Doiron,            although                     reporting well after the events in question, spoke of            an organic  disorder  with significantly  compromised  mental            functions, variable  attention span,  impaired  concentration               2  The Commissioner does assert at one point, without            elaboration, that "the alleged constitutional deprivation            must concern the proceeding at which the determination not to            reopen was made."  Brief at 10 (citing Cherry v. Heckler, 760            F.2d 1186, 1190 n.4 (11th Cir. 1985)).  Yet other courts have            taken a broader view of the Sanders exception, see, e.g.,            Evans, 110 F.3d at 1482-83, which we regard as the preferable            approach.                                         -4-            levels,  depressive  symptomology  and  substandard   reading                  y.3   And  even Dr.  Luongo, on  whom the  Commissioner            relies, spoke of an emotionally unstable personality disorder            with strong sociopathic and alcoholic features, a borderline-            defective intellect, a chronic difficulty in maintaining  any            leve            abilit                l of  responsibility, and an  inability to handle  funds.            Factfinding                        is                           of                             course                                    the function of the agency rather than            a court.  See, e.g., Torres, 475 F.2d at 469.  We hold simply            that the evidence of mental incapacity in 1992, when claimant            failed                   to                      pursue his administrative remedies, is sufficient to            warrant further inquiry by the Commissioner.                 Because the due process inquiry involves a fact-specific            judgment                     in                        evaluating medical evidence, we remand the case so            the Commissioner can make this judgment as an initial  matter            and--if satisfied that  there was a  denial of due  process--            address the merits.   This procedure is consistent with  past            practice                     in                        earlier cases.  We think it worth emphasizing that            this remand turns on whether claimant has made a  "colorable"            due process  claim.  Nothing in  this opinion is designed  to            suggest that the Commissioner should necessarily find that  a            violation occurred.               3  The Commissioner has not objected to consideration of            the second Doiron report, which was first presented to the            Appeals Council.  See, e.g., Perez v. Chater, 77 F.3d 41, 44-            45 (2d Cir. 1996) (following majority view that new evidence            submitted to Appeals Council is properly deemed part of            administrative record, even when Council has denied review).                                         -5-                 We add that,  given claimant's failure to raise the  due            process                    issue before the Commissioner, and given his tardiness            in presenting that issue squarely to the district court,  see            note 1 supra, any  request for attorney's fees in this  court            would be looked upon with disfavor.                  The judgment  is vacated and  the case  remanded to  the            district court, with directions to remand to the Commissioner            for further action consistent herewith.  No costs.                                         -6-
