      [NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

         United States Court of Appeals
                      For the First Circuit


No. 00-1751

                          HAROLD DUDLEY,

                       Plaintiff, Appellant,

                                v.

                         KENNETH S. APFEL,
                 COMMISSIONER OF SOCIAL SECURITY,

                       Defendant, Appellee.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

                     FOR THE DISTRICT OF MAINE

              [Hon. Gene Carter, U.S. District Judge]


                              Before

                       Boudin, Circuit Judge,
                   Bownes, Senior Circuit Judge,
                     and Stahl, Circuit Judge.


     Francis M. Jackson on brief for appellant.
     Jay P. McCloskey, United States Attorney, Charlotte J.
Hardnett, Acting General Counsel, Frank V. Smith, III, Acting
Principal Deputy General Counsel, John M. Sacchetti, Associate
General Counsel for Program Litigation, and Etzion Brand,
Supervisory Attorney, Office of the General Counsel, Social
Security Administration, on brief for appellee.




                          March 16, 2001
      Per   Curiam.     Appellant        Harold       Dudley    appeals    from    the

judgment of the district court that it lacked jurisdiction over

his   (appellant's)         appeal      from     a    final     decision    of    the

Commissioner      of   Social      Security.          The   Commissioner's       final

decision – made by the Appeals Council – was that appellant's

application for disability benefits was barred by res judicata.

In particular, appellant had filed a prior application, which

concerned the same issues and the same time period, and had

failed to seek Appeals Council review of the determination of

the   administrative        law    judge    (ALJ)      that    appellant    was   not

disabled.      Due     to   appellant's        omission,       this   determination

became final and binding.

      It is well-settled that the denial of an application for

disability benefits based on res judicata is not subject to

judicial review.        See Torres v. Secretary of Health and Human

Services, 845 F.2d 1136, 1138 (1st Cir. 1988) (per curiam);

Matos v. Secretary of Health, Education and Welfare, 581 F.2d

282, 285-86 (1st Cir. 1978).               Appellant nonetheless raises two

arguments    in    support        of   finding       jurisdiction.        His    first

argument is that where there has been a reopening of the prior

application, the Commissioner is estopped from invoking res

judicata.    This is not availing here because even though the ALJ

had decided that the prior application should be reopened, the
Appeals Council nullified this decision.                       See Tobak v. Apfel,

195 F.3d 183 (3rd Cir. 1999).                  Thus, as the district court

found, there has been no reopening.

      Appellant's second argument is based on the exception to the

rule of unreviewability where a claimant raises a "colorable"

constitutional claim regarding an administrative decision based

on res judicata.         See Torres, 845 F.2d at 1138; Matos, 581 F.2d

at   286   n.6.     A    common      claim,    in   this       context,    is    that   a

claimant's mental impairment, and lack of legal representation,

prevented    him    or       her    from   timely       pursuing    administrative

remedies concerning the claimant's prior application.                           This is

the claim appellant raises and the district court rejected it as

not "colorable."        We agree for essentially the reasons stated in

the recommended decision of the magistrate judge, which the

district judge adopted.             We add only the following comments.

      First, even assuming that appellant was unrepresented at the

relevant    time,       he   does    not   dispute       the     Appeals    Council's

description of the 1992-1993 treatment notes from the Eastport

Health Center.      According to the Council, these notes did not

mention anything unusual about appellant's mental condition and

thus did not support the conclusion that claimant was mentally

unable to pursue his administrative remedies during this time.

Second,    appellant         does   not    point    to    any     medical       evidence

concerning    the       specific     effects       of    his    depression       on   his


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abilities to understand and follow administrative procedures.

That is, appellant cites to no evidence that, for instance, he

was    confused,     had   a   thought   disorder        or    poor       intellectual

functioning, or was not capable of functioning responsibly.

That Drs. DiTullio and Pasternak concluded that appellant was

"disabled" is not enough, standing alone, to show that appellant

was incapable of comprehending or pursuing his administrative

remedies.     Cf. Torres v. Secretary of Health, Education, and

Welfare, 475 F.2d 466, 468-69 (1st Cir. 1973) (remanding to the

Secretary    for    further      proceedings    concerning           the    effect    of

claimant's    mental       impairment    on   his   ability          to    follow    his

administrative       remedies,     but   noting     that       the    finding       that

claimant    was    disabled      based   on   his   nerves       only      meant    that

claimant was "occupationally disabled" within the meaning of the

Social Security Act; "one may be so disabled and yet retain the

awareness and mental capacity to understand and pursue one's

rights").

       Finally, we note that the fact that the Commissioner did not

file the entire administrative record below does not require a

remand in this case.           Appellant cites to no authority requiring

such    a   filing     where     jurisdiction       is        contested      and     the

Commissioner does not file an answer.               See 42 U.S.C. § 405(g).

Our comments in Torres are not to the contrary.                      See 845 F.2d at

1137 n.1.    And, although appellant alluded below to the absence


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of the complete record, he never filed a motion specifically

requesting the district court to order the Commissioner to

submit the record.   As a result, this objection is not well

taken.

    The judgment of the district court is affirmed.




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