                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            APR 2 1997
                            FOR THE TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                Clerk

    FLORENCE J. GILBERT,

              Plaintiff-Appellant,

    v.                                                   No. 96-1405
                                                     (D.C. No. 93-B-1703)
    SHIRLEY S. CHATER, Commissioner                        (D. Colo.)
    of Social Security, *

              Defendant-Appellee.




                            ORDER AND JUDGMENT **



Before BALDOCK, EBEL, and LUCERO, Circuit Judges.




*
       Effective March 31, 1995, the functions of the Secretary of Health and
Human Services in social security cases were transferred to the Commissioner of
Social Security. P.L. No. 103-296. Although the Commissioner has been
substituted for the Secretary in the caption, in the text we continue to refer to the
Secretary because she was the appropriate party at the time of the underlying
decision.
**
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Claimant Florence J. Gilbert appeals from a decision 1 of the district court

affirming the Secretary’s determination that she was entitled to a period of

disability commencing November 30, 1984, and to disability insurance benefits

and further entitled to benefits under Title XVI, but refusing to reopen her 1985

claim for benefits under Title II. At issue is whether claimant’s 1985 application

was solely a claim for disability insurance benefits or if it also included a claim

for widow disability benefits that has never been administered. The district court

held that claimant had never filed for widow disability benefits and rejected

claimant’s contention that such a claim remained pending in administrative limbo.

      Claimant argues that the district court erred in finding that her 1985 claim

was not a claim for widow’s benefits, that res judicata was improperly applied to

deny her past widow’s benefits, that she was entitled to have her 1985 claim

reopened under several different theories, and that 42 U.S.C. § 402 or 42 U.S.C. §

405 should allow her relief because she had received incomplete information

about whether to appeal her 1986 reconsideration denial. We review to determine

whether the Secretary’s decision was supported by substantial evidence and to




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) and 10th Cir. R. 34.1.9. The case is
therefore ordered submitted without oral argument.


                                         -2-
consider whether the Secretary applied the proper legal standard, see Brown v.

Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990). We affirm.

      In 1985, claimant filed an application under Title II and Title XVIII

requesting “all insurance benefits for which I am eligible.” R. Vol. I at 295. 2

That claim was denied both initially in October 1985, and upon reconsideration.

Claimant did not appeal further.

      Claimant filed a second application in 1991. This time, claimant prevailed

on her claim for disability insurance benefits but failed to convince the ALJ to

reopen her 1985 claim which she contends was one for widow’s benefits. The

ALJ refused to reopen based on 20 C.F.R. § 404.988 which limits the time in

which an application may be reopened for good cause to the four-year period after

the date of the initial determination. See 20 C.F.R. 404.988(b).

      Because a decision not to reopen a case is not a final decision of the

Secretary made after a hearing, it is not reviewable by federal courts. See

Califano v. Sanders, 430 U.S. 99, 108 (1977). This bar to review exists “‘whether

or not the [Social Security Administration] held a hearing on whether good cause

for the late filing was shown.’” Dozier v. Bowen, 891 F.2d 769, 771 (10th Cir.

1989) (quoting White v. Schweiker, 725 F.2d 91, 93 (10th Cir. 1984)). The only


2
      Widow’s disability benefits are among the benefits provided in Title II of
the Social Security Act. See Davidson v. Secretary of Health & Human Servs.,
912 F.2d 1246, 1249 (10th Cir. 1990).

                                         -3-
exception to this bar on judicial review is when the refusal to reopen is

challenged on constitutional grounds, an instance the Supreme Court has

described as “rare.” See Califano, 430 U.S. at 109.

      Claimant argues that she comes witihin the exception because (1) the 1985

application was an application for widow’s benefits which has never been denied

and, therefore, remains pending and (2) the ALJ’s refusal to reopen her 1985

application denied her due process.

      With regard to claimant’s first argument, we agree with the Secretary that,

under any scenario, claimant cannot prevail. If the district court is correct and

claimant did not file in 1985 for widow’s benefits, she cannot prevail. A claimant

must file for benefits in order to receive them. Alternately, if claimant filed a

claim for widow’s benefits in 1985, it was denied by virtue of the notices

claimant received.

      The 1985 application applied for all Title II benefits to which claimant was

eligible. Because Title II encompasses widow’s benefits, the application

necessarily includes those benefits. The denial of the 1985 application states

“you are not entitled to any other benefits based on this application,” R. Vol. I at

313, thus it denies all benefits to which claimant was entitled, including widow’s

benefits. The reconsideration disability report clearly names claimant’s deceased




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husband as the wage earner and notes that the Title II claim is for both disability

insurance benefits and disabled widow’s benefits.

      The initial notice denying claimant’s 1985 application states: “If you

applied for other benefits, you will receive a separate notice when a decision is

made on that claim(s).” R. Vol. I at 313. Claimant points to this language to

argue that the denial notice she received denies only disability insurance benefits

and not widow’s benefits, and that she could reasonably have expected to receive

a separate notice denying her widow’s claim. However, the entire paragraph

reads as follows:

      In addition, you are not entitled to any other benefits based on this
      application. If you applied for other benefits, you will receive a
      separate notice when a decision is made on that claim(s).

Id. at 313. We read this language to mean that, had claimant filed for other

benefits on a different and separate application, she would have received a

separate notice regarding that application. Because the denial notice states that

claimant was not entitled to any other benefits based on “this application,” and

because “this application” encompasses all benefits to which claimant is entitled

under Title II (which title includes both disability insurance and widow disability

benefits), the denial of the claim made in “this application” denies both types of




                                         -5-
disability claims. 3 We do not view the fact that only the “disability insurance

benefits” box was checked on the denial notices, as opposed to both the

“disability insurance benefits” and the “disabled widow/widower benefits” boxes,

as evidence that the widow’s claim was not administered and is still alive. The

fact that the district court drew the alternate conclusion and held that claimant

had not filed for widow’s benefits in 1985 does not prevent our affirming the

district court. We may affirm a decision of the district court on a ground not

relied on by that court if supported by the record. See Greiss v. Colorado, 841

F.2d 1042, 1047 (10th Cir. 1988).

      As noted, the ban on judicial review of a refusal to reopen does not operate

to preclude review of a case presenting a colorable constitutional claim. See

Nelson v. Secretary of Health & Human Servs., 927 F.2d 1109, 1111 (10th Cir.

1990). The gist of claimant’s due process argument seems to be that the plain

language of the 1985 reconsideration denial did not sufficiently alert her to the



3
       We see no unfairness to claimant in determining that she had applied for
widow’s benefits in 1985 and had been denied. Claimant admitted in a prior
lawsuit, see Gilbert v. Shalala, 828 F. Supp. 815 (D. Colo. 1993), aff’d, 45 F.3d
1391 (10th Cir. 1995), that she herself thought she was applying for widow’s
benefits and that they had been denied.
       Further, in that case, the district court was obviously dealing with a
plaintiff who had represented to the court that her widow’s disability claim had
been denied. See Gilbert, 828 F. Supp. at 818 (stating that “[h]er denial notice
explained that to qualify for widow disability benefits her disability must arise
within seven years after the death of her spouse”).

                                         -6-
need to proceed further with her claim. Claimant failed to prevail on this

argument in Gilbert v. Shalala, 45 F.3d 1391 (10th Cir. 1995), aff’g 828 F. Supp.

815 (D. Colo. 1993), because she had not relied on the notice in failing to appeal

and thus had no standing. See id. at 1394. Claimant is thus collaterally estopped

from relitigating this matter. See Allen v. McCurry, 449 U.S. 90, 94 (1980).

      Claimant next argues that the ALJ erroneously applied res judicata

principles to her case and that various theories should afford her relief from its

operation. We disagree. The ALJ did not resort to res judicata in deciding her

claim. Damage to a claimant from res judicata arises when issues of fact and law

determined in a prior action are used to bar a subsequent claim for relief based on

the same facts. Here, the ALJ awarded claimant disability insurance benefits

from her 1991 application based on a November 1984 onset date. The 1985

determination was not used as a basis for denying the 1991 application. 4


4
        Claimant argues that she was told by a Social Security Administration
employee that she could reapply for widow’s benefits within seven years after the
initial denial and receive back benefits. She argues that, because of this
misrepresentation, she is entitled to relief under 42 U.S.C. § 405(b)(3)(A) which
provides

             A failure to timely request review of an initial adverse
      determination with respect to an application for any benefit under
      this subchapter or an adverse determination on reconsideration of
      such an initial determination shall not serve as a basis for denial of a
      subsequent application for any benefit under this subchapter if the
      applicant demonstrates that the applicant . . . failed to so request
                                                                        (continued...)

                                         -7-
         Because res judicata principles preclude reopening the 1985 application, we

are without jurisdiction to review the ALJ’s refusal to reopen. “Neither the

district court nor this court has jurisdiction to review the Secretary’s refusal to

reopen a claim for disability benefits or determination such claim is res judicata.”

Brown, 912 F.2d at 1196. Further, because the ALJ expressly refused to reopen

the 1985 claim, there can be no de facto reopening as claimant argues. See id.

We agree with the district court that 42 U.S.C. § 402(j)(5) does not afford relief

as that statute specifically applies to persons who fail to apply for benefits

because of agency-originated misinformation.

         Our resolution of this case makes it unnecessary for us to address the

Secretary’s argument regarding the propriety of the district court’s action in

abating the case until administrative remedies had been exhausted.




4
    (...continued)
          such a review acting in good faith reliance upon incorrect,
          incomplete, or misleading information, relating to the consequences
          of reapplying for benefits in lieu of seeking review of an adverse
          determination, provided by any officer or employee of the Social
          Security Administration or any State agency acting under section 421
          of this title.

42 U.S.C. § 405(b)(3)(A) (emphasis added). Because claimant’s subsequent 1991
application was not denied, this section does not apply to claimant’s case.

                                           -8-
AFFIRMED.



                  Entered for the Court



                  Carlos F. Lucero
                  Circuit Judge




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