                    UNITED STATES COURT OF APPEALS

                               TENTH CIRCUIT



 ROGER L. BLAIR,

             Plaintiff-Appellant,

 v.                                                     No. 00-1006

 KENNETH S. APFEL, Commissioner
 of Social Security,

             Defendant-Appellee.


                                    ORDER
                             Filed October 17, 2000


Before BRORBY , PORFILIO , and MURPHY , Circuit Judges.



      Appellant’s motion to publish the order and judgment dated August 30,

2000 is granted. A copy of the published opinion is attached.


                                                  Entered for the Court
                                                  Patrick Fisher, Clerk of Court

                                                  By:
                                                         Keith Nelson
                                                         Deputy Clerk
                                                                    F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                                                     AUG 30 2000
                                    PUBLISH
                                                                 PATRICK FISHER
                  UNITED STATES COURT OF APPEALS                            Clerk

                               TENTH CIRCUIT



 ROGER L. BLAIR,

             Plaintiff-Appellant,

 v.                                                   No. 00-1006

 KENNETH S. APFEL, Commissioner
 of Social Security,

             Defendant-Appellee.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                       (D.C. No. 99-B-221)


Submitted on the briefs:

Frederick W. Newall, Colorado Springs, Colorado, for Plaintiff-Appellant.

Thomas L. Strickland, United States Attorney, Michael E. Hegarty, Assistant
United States Attorney, and Yvette Keesee, Special Assistant United States
Attorney, Denver, Colorado, for Defendant-Appellee.


Before BRORBY , PORFILIO , and MURPHY , Circuit Judges.


PER CURIAM.
      Plaintiff Roger L. Blair appeals an order of the district court affirming

the Commissioner’s decision to dismiss on res judicata grounds his request for

an administrative hearing on whether he is entitled to disability benefits.

We affirm.   1



      Mr. Blair has filed several applications seeking both Title II and Title XVI

benefits alleging disability as of December 19, 1985. Mr. Blair did not seek

reconsideration of the denial of either his 1987 and 1989 applications. His 1992

applications were also denied. Mr. Blair filed an untimely request for review of

that denial four months after the decision was entered. The request was denied.   2



Mr. Blair filed again in 1995. He was approved for Title XVI benefits as of

April 1, 1995. The administrative law judge (ALJ) held that no basis existed to

reopen the prior Title II determinations and dismissed his request to reopen.

The ALJ also held that Mr. Blair had not shown good cause for reopening under

Soc. Sec. Reg. 91-5p.




1
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
2
      Mr. Blair was unrepresented in the 1987 and 1989 applications. He was
represented by his current attorney for the 1992 applications.

                                           -2-
       Mr. Blair appealed that decision to the district court. The court held that

Mr. Blair had not presented a colorable constitutional claim and that due process

did not prohibit the ALJ’s application of res judicata.

       On appeal, Mr. Blair argues that he        was entitled to a hearing before the

ALJ because he did raise a colorable constitutional issue         . He contends that this

court should exercise its mandamus jurisdiction and require the Commissioner to

follow his mental illness and res judicata rules. Finally, he maintains that the

district court erred by not considering his appeal on the merits.

       “Absent a colorable constitutional claim . . . , a district court does not have

jurisdiction to review the Secretary’s discretionary decision not to reopen an

earlier adjudication. Nor does the district court have jurisdiction to review the

ALJ’s denial of [a claimant]’s request for a hearing when the current claim has

the same factual basis as the initial claim.”         Nelson v. Secretary of Health &

Human Servs. , 927 F.2d 1109, 1111 (10th Cir. 1990) (quotation and citation

omitted); see also Califano v. Sanders , 430 U.S. 99, 107-09 (1977)

(Commissioner’s decision to reopen previously denied claim for benefits

is discretionary, and therefore, unreviewable as a nonfinal decision under

42 U.S.C. § 405(g)).

       Mr. Blair argues that he raised a constitutional issue regarding his       mental

illness and, therefore, was entitled to a hearing before the ALJ. Mr. Blair


                                                -3-
contends that his mental condition prevented him from understanding his right to

appeal the initial denials of benefits in both applications.

       A claimant will establish a mental impairment justifying failure to request

review “when the evidence establishes that he or she lacked the mental capacity

to understand the procedures for requesting review.” Soc. Sec. Reg. 91-5p. To

make this determination the ALJ must examine “any mental . . . condition which

limits the claimant’s ability to do things for him/herself.”    Id. Our review of the

record shows that the ALJ complied with this regulation. Additionally, the

record does not show that Mr. Blair lacked the mental capacity to understand the

procedures for requesting review. Further, Mr. Blair fails to explain why he did

not request reopening of the 1987 and 1989 claims in his 1992 applications in

which he was represented by counsel.

       Next, Mr. Blair contends that this court should exercise its mandamus

jurisdiction and order the Commissioner to follow the agency’s mental illness and

res judicata rules. The writ of mandamus “is intended to provide a remedy for

a plaintiff only if he has exhausted all other avenues of relief and only if the

defendant owes him a clear nondiscretionary duty.”         Heckler v. Ringer , 466 U.S.

602, 616 (1984). Not only does Mr. Blair have other avenues to seek his

requested relief, but the record shows that the ALJ did follow the applicable rules

and regulations.


                                             -4-
       Finally, Mr. Blair maintains that the district court erred by not considering

his appeal on the merits.    As explained, supra , the district court did not have

jurisdiction to consider the appeal on the merits. We further note that the ALJ did

follow the procedures set forth in 20   C.F.R. § 404.1520(a) in evaluating the 1987

and 1989 applications.      No error occurred.

       The judgment of the United States District Court for the District of

Colorado is AFFIRMED.




                                            -5-
