     Case: 14-41183      Document: 00512993815         Page: 1    Date Filed: 04/06/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 14-41183                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                             April 6, 2015
VINCENT KEITH YATES,                                                       Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL
SECURITY,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                               USDC 6:12-CV-843


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       After a 2003 administrative hearing, Vincent Yates was found disabled
under Title II and Title XVI of the Social Security Act. Later that year,
information came to light about his employment history that called his
testimony into question. His case was reopened, and he was denied benefits.




       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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The district court affirmed the decision. Finding that there was a sufficient
basis for reopening his case and no merit to his other arguments, we affirm.
                                       I.
      Yates applied for Title II disability benefits and Title XVI supplemental
security income benefits in 2002, claiming an inability to work beginning on
March 11, 2002 due to back surgery. In 2003, Yates was given a hearing before
Administrative Law Judge (ALJ) William Herbert in Minneapolis, who found
in his favor on both claims. Yates began receiving benefits.
      Later in 2003, the Social Security Administration received information
that Yates was working as a taxi driver prior to the hearing, during a period
for which he claimed disability. This led to a hearing in 2007 before ALJ
Walter Orr in Texas, where Yates had moved in the interim. Yates appeared
pro se. ALJ Orr reopened the case and determined that Yates was not disabled.
      Yates challenged the decision in the district court, which found that he
did not receive sufficient notice of his right to counsel and remanded the case.
ALJ Orr conducted a new hearing in 2011 at which Yates was represented by
counsel, and issued a decision later that year finding that Yates was not
disabled. The decision relies in large part on testimony given by Dr. Howard
McClure in the 2007 hearing, indicating that Yates did not have the requisite
impairment. It also includes a lengthy discussion of the decision to reopen the
case due to Yates’s fault in failing to disclose his work as a taxi driver to ALJ
Herbert at the 2003 hearing. The Appeals Council denied Yates’s request for
review. Yates then challenged the ruling in the district court. The magistrate
judge recommended dismissing the complaint challenging the decision to
reopen for lack of jurisdiction and, with regard to the ruling denying benefits,
found no error.    The district court adopted that recommendation.         Yates
appeals.


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                                          II.
      On appeal, Yates argues that ALJ Orr erred in reopening his hearing
without making the required findings. Under 20 C.F.R. § 404.988(c) and 20
C.F.R. § 416.1488(c), a determination may be reopened at any time if “[i]t was
obtained by fraud or similar fault.”          Although ALJ Orr found that Yates
obtained a favorable determination by “similar fault,” Yates argues that his
taxi driving job did not constitute substantial gainful activity, and thus was
not material to ALJ Herbert’s decision to award him benefits. See 42 U.S.C.
§ 423(d)(1)(A) (“The term ‘disability’ means inability to engage in any
substantial gainful activity . . . .”).
      The government asserts that the courts lack subject matter jurisdiction
to review the decision to reopen Yates’s case. Federal courts have jurisdiction
to review the decisions of the Commissioner under 42 U.S.C § 405(g), which
states that “[a]ny individual, after any final decision of the Commissioner of
Social Security made after a hearing to which he was a party, irrespective of
the amount in controversy, may obtain a review of such decision by a civil
action commenced within sixty days . . . .” See also 42 U.S.C. § 1383(c)(3)
(granting review of Title XVI determinations to the same extent provided by
42 U.S.C. § 405(g)). In Califano v. Sanders, 430 U.S. 99, 108–09 (1977), the
Supreme Court held that the denial of a petition to reopen may not be reviewed
unless it is challenged on constitutional grounds. Noting that the statutory
grant of judicial review is limited to “final decision[s] . . . made after a hearing”
and that “a petition to reopen a prior final decision may be denied without a
hearing,” the Court held that section 405(g)’s jurisdictional grant does not
encompass the refusal to reopen claims for benefits.          Id. at 108; see also
Robertson v. Bowen, 803 F.2d 808, 810 (5th Cir. 1986) (“[T]he federal courts
have no subject matter jurisdiction to review a decision by the Secretary not to
reopen a case.”). The Court also observed that “an interpretation that would
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allow a claimant judicial review simply by filing and being denied a petition to
reopen his claim would frustrate the congressional purpose . . . to impose a 60-
day limitation upon judicial review of the Secretary’s final decision on the
initial claim for benefits.” Sanders, 430 U.S. at 108.
      Sanders dealt only with jurisdiction over the decision not to reopen; we
have declined to extend it to decisions to reopen that result in a decision
against a claimant. In Cole ex rel. Cole v. Barnhart, 288 F.3d 149, 152 (5th Cir.
2002), we noted that “we review de novo the conclusion that good cause exists
for reopening.” See also id. at 150 (“We have jurisdiction to consider whether
there is error in such a decision to reopen for good cause . . . when the reopening
. . . led to the . . . partially unfavorable decision.” (citing Cieutat v. Bowen, 824
F.2d 348, 358 n.15 (5th Cir. 1987))); CAROLYN A. KUBITSCHEK & JON C. DUBIN,
SOCIAL SECURITY DISABILITY LAW & PROCEDURE IN FEDERAL COURT § 6:48 (“In
the Fifth Circuit, the court reviews de novo the decision of the Commissioner
that there is good cause for reopening.”). Cole involved the decision to reopen
a case for “good cause,” which is a different ground than ALJ Orr’s decision
here to reopen due to “fraud or similar fault.” See 20 C.F.R. § 404.988(b)
(allowing reopening of Title II determinations “[w]ithin four years . . . if we find
good cause, as defined in § 404.989, to reopen the case”); 20 C.F.R. § 416.1488
(allowing reopening of Title XVI determinations “[w]ithin two years of the date
of the notice of the initial determination if we find good cause”). The same
rationale nonetheless applies to decisions to reopen based on fraud or similar
fault made after a hearing. See Wyatt v. Barnhart, 349 F.3d 983, 984–86 (7th
Cir. 2003) (reversing ALJ’s decision to reopen for “similar fault”).            The
magistrate judge thus erred in concluding that the decision to reopen is not
reviewable.
      Our review on the merits of the decision to reopen provides an alternate
basis for affirming. The parties agree that a decision to reopen based on
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“similar fault” requires that a claimant has made an incorrect or incomplete
statement that is material to the determination, or knowingly concealed
information that is material to the determination. Cf. 42 U.S.C. § 405(u)(2)
(defining “similar fault” in the context of the Commissioner’s duty to disregard
evidence when “fraud or similar fault was involved in the providing of such
evidence”).
      Although we review the ALJ’s legal conclusion regarding the decision to
reopen de novo, Cole, 288 F.3d at 152, the factual findings may not be
questioned if they are supported by “substantial evidence.” 42 U.S.C. 405(g)
(“The findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive . . . .”); Brown v. Apfel,
192 F.3d 492, 496 (5th Cir. 1999) (“Our review of the Commissioner’s decisions
with respect to a denial of SSI benefits is limited to ascertaining ‘whether (1)
the [final] decision is supported by substantial evidence and (2) [that] proper
legal standards were used to evaluate the evidence.’” (citation omitted and
brackets in original)). “Substantial evidence is more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.”    Brown, 192 F.3d at 496 (citation and internal
quotation marks omitted). ALJ Orr’s determination that Yates’s fault was
material to ALJ Herbert’s decision easily meets this standard. The ALJ’s
decision notes that Yates was asked if he had worked since the date he claimed
disability, and falsely answered that he had not. It also points out that ALJ
Herbert explicitly considered Yates’s credibility in reaching his ultimate
determination, and thus that the misrepresentation was material. Yates’s
claim that his work did not constitute substantial gainful activity is beside the
point; an ALJ may consider any work in its determination. See 20 C.F.R.
§ 404.1571 (“Even if the work you have done was not substantial gainful
activity, it may show that you are able to do more work than you actually did.
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We will consider all of the medical and vocational evidence in your file to decide
whether or not you have the ability to engage in substantial gainful activity.”).
Because substantial evidence supported the factual findings underlying the
decision to reopen, and because Yates offers no reasons to reject the ALJ’s legal
conclusions, we reject Yates’s argument that there was error in the decision to
reopen.
                                        III.
      Yates also argues that ALJ Orr improperly considered Dr. McClure’s
medical testimony from the 2007 hearing in which Yates was unrepresented,
and that ALJ Orr improperly weighed that testimony much more heavily than
the other medical evidence. There is, however, “an absolute right to subpoena
a reporting physician.” Lidy v. Sullivan, 911 F.2d 1075, 1077 (5th Cir. 1990).
Yates thus had the opportunity to subpoena Dr. McClure for the 2011 hearing
at which he was represented by counsel. As ALJ Orr noted, his failure to do so
forfeited any objection.
      Furthermore, “the ALJ ‘is entitled to determine the credibility of medical
experts as well as lay witnesses and weigh their opinions accordingly.’”
Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir.1994) (quoting Scott v. Heckler,
770 F.2d 482, 485 (5th Cir. 1985)). ALJ Orr thus did not err in weighing Dr.
McClure’s testimony more heavily than the other medical evidence.
                                        IV.
      Finally, Yates asserts that ALJ Orr’s “behavior indicates a clear and
substantial bias” because he laughed during the hearing, expressed his
surprise that Yates has been receiving benefits since the 2003 hearing, and
noted his disapproval of ALJ Herbert’s reasoning. “‘[J]udicial remarks during
the course of a trial that are critical or disapproving of, or even hostile to
counsel, the parties, or their cases, ordinarily do not support a bias or partiality
challenge’ unless ‘they reveal such a high degree of favoritism or antagonism
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as to make fair judgment impossible.’” Brown, 192 F.3d at 500 (quoting Liteky
v. United States, 510 U.S. 540, 555 (1994)). As the magistrate judge correctly
noted, none of the behaviors Yates points to rises to the level of impermissible
bias. Compare id. (finding no bias despite ALJ’s statement that the treating
physician “was attempting to help the claimant get benefits because of his
relationship with her”); see also Liteky, 510 U.S. at 555–56 (stating that
“expressions of impatience, dissatisfaction, annoyance, and even anger” do not
establish bias).
                                      V.
      We therefore AFFIRM the district court’s decision affirming the decision
of the Commissioner and dismissing Yates’s complaint.




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