
USCA1 Opinion

	




          March 29, 1996                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1743                                     JANET NIEMI,                                Plaintiff, Appellant,                                          v.              DONNA E. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Morris E. Lasker, U.S. District Judge]                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Boudin and Stahl, Circuit Judges.                                            ______________                                 ____________________            Camilla B. Duffy on brief for appellant.            ________________            Donald K. Stern, United States Attorney, Arthur J. Fried,  General            _______________                          _______________        Counsel, Randolph W. Gaines,  Acting Principal Deputy General Counsel,                 __________________        A. George Lowe, Acting Associate General Counsel, Litigation Division,        ______________        and Richard  Fox,  Attorney, Office  of  the General  Counsel,  Social            ____________        Security Administration, on brief for appellee.                                 ____________________                                 ____________________                 Per  Curiam.    Claimant  Janet  Niemi  appeals  from  a                 ___________            district   court   judgment  dismissing,   on  jurisdictional            grounds,  her   challenge  to   the  denial  of   her  second            application for disability benefits.  We affirm.                                          I.                 Claimant's attempts to  obtain disability benefits  have            ensued  long after  her insured  status expired  on June  30,            1980.    She  filed  her  first  application,  without  legal            representation, on December 4, 1991, claiming an inability to            work  since May 1, 1976  because of multiple  sclerosis.  Her            claim  was  denied at  the  initial  level of  administrative            review by notice dated  January 13, 1992.  No  further review            was  sought, with  the result  that the  agency determination            became final.  See 20 C.F.R.    404.905, 404.987(a).                           ___                 With the assistance of  counsel, claimant filed a second            application on November 27, 1992,  along with a smattering of            new  evidence.  The cited medical  impairment and the claimed            onset date were the same as those alleged earlier.  After her            claim was  denied initially and  on reconsideration, claimant            sought a  hearing before  an administrative law  judge (ALJ).            In  a decision  dated January  28, 1994,  the ALJ  denied the            hearing  request on two  grounds.  First,  he determined that            the claim was barred on res judicata grounds, inasmuch as the            earlier application  had involved the same  facts and issues.            See  id.     404.957(c)(1).    Alternatively, construing  the            ___  ___            second application as a request to reopen the  earlier claim,            the  ALJ concluded that no new and material evidence had been            submitted so as to provide good cause for reopening.  See id.                                                                  ___ ___               404.988(b), 404.989(a)(1).                   Claimant   sought  review   by   the  Appeals   Council,            supplementing  her request  with  recently  acquired  medical            evidence.   The  Appeals Council  found that  "the additional            reports contain  no objective findings for  the period before            1982,  and  no  clinical  support  to  demonstrate  a  severe            impairment  existing  continuously since  at  least  June 30,            1980."   Agreeing  with  the  ALJ  that  no  good  cause  for            reopening  had  been  presented,  it  therefore  declined the            request for review.                 Claimant  subsequently  filed   the  instant  action  in            district court, premising jurisdiction on 42 U.S.C.   405(g).            In  response  to  the  Secretary's  motion  to  dismiss,  the            district  court  issued a  detailed decision  explaining that            subject  matter jurisdiction was  ordinarily lacking  in this            context.  Applying Califano v.  Sanders, 430 U.S. 99,  107-09                               ________     _______            (1977), and Matos v.  Secretary of HEW, 581 F.2d  282, 284-87                        _____     ________________            (1st Cir. 1978), the court observed that judicial review of a            denial reached  without  a hearing  was  unavailable--whether            such  denial  was based  on  administrative  res judicata  or            involved  a decision not to  reopen.  Accord,  e.g., Colon v.                                                  ______   ____  _____            Secretary of HHS, 877  F.2d 148, 152-53 (1st Cir.  1989) (per            ________________            curiam); Torres v. Secretary of HHS, 845 F.2d 1136, 1138 (1st                     ______    ________________            Cir.  1988) (per  curiam) (citing  cases); see  also  Rios v.                                                       _________  ____                                         -3-            Secretary  of HEW, 614 F.2d  25, 26 (1st  Cir. 1980) (finding            _________________            jurisdiction lacking to review denial on res judicata grounds            and refusal to reopen, even where hearing had been held).  As            the district court noted, an exception to this jurisdictional            bar   exists  in   "rare   instances"   where   a   colorable            constitutional claim  has been presented.   Sanders, 430 U.S.                                                        _______            at 109; accord, e.g., Colon, 877 F.2d at 152.  Yet claimant's                    ______  ____  _____            only  allegation to this  effect was  that invocation  of res            judicata violated  due process where the first claim had been            dismissed without a hearing--a contention the court  properly            deemed meritless.   See, e.g., Rogerson v. Secretary  of HHS,                                ___  ____  ________    _________________            872 F.2d 24,  29 (3d Cir. 1989); see also  Matos, 581 F.2d at                                             ________  _____            285-86.                  Nonetheless, with a reference  to Shrader v. Harris, 631                                                   _______    ______            F.2d 297 (4th Cir. 1980), the court went on to observe that a            separate  constitutional claim might  be stated were claimant            able to  demonstrate that, because of  mental incapacity, she            had been unable to understand or pursue the appeal procedures            in connection with her  first, pro se application.   Although            no  such argument  had been  advanced,  the court  sua sponte                                                               __________            afforded claimant sixty  days within which to  attempt such a            showing.     In  response,   claimant  advanced  a   trio  of            contentions.    First,  she  argued  that  a  combination  of            symptoms--fatigue, depression and  a sense of powerlessness--            had in fact prevented  her from pursuing her rights  in 1992.                                         -4-            Principal  support  for  this  contention  came  from  an  MS            counselor who had provided claimant with group therapy at the            time.  Second, claimant insisted that the January 1992 denial            notice had been  ambiguously worded, particularly  by failing            to  clarify the necessity of  filing an appeal  as opposed to            reapplying for  benefits.  Finally, claimant  complained that            many of her  medical records had been (and  to a large extent            remained)   unavailable--a   problem   exacerbated   by   the            Secretary's  failure to  assist her  in obtaining them.   The            district court, unpersuaded  that these contentions  amounted            to  a colorable  due process violation,  thereafter summarily            allowed the motion to dismiss.  This appeal ensued.                                           II.                 Claimant  now  acknowledges   that  the   jurisdictional            question hinges on  whether a colorable constitutional  claim            has been presented.  She argues that the factors just cited--            her emotional difficulties; the ambiguously worded notice  of            denial; and  the incomplete medical record--set  forth such a            claim,  at  least in  combination  if not  individually.   We            disagree.                  The Shrader case involved an extreme set of facts: e.g.,                     _______                                        ____            psychiatric and other medical reports  describing claimant (a            Vietnam War shell-shock victim)  as living a "vegetative like            existence,"  as becoming  "schizoid"  and "paranoid,"  and as            "regress[ing] to a psychotic level."  631 F.2d at 299.  While                                         -5-            such dire circumstances are  not invariably a prerequisite to            invoking the  Shrader exception, the depression  and sense of                          _______            powerlessness cited by claimant here are, quite obviously, of            a lower order of magnitude.  As well, they are uncorroborated            by any  medical evidence.   The  only relevant  submission in            this  regard comes from a  lay person counselor;  there is no            indication  that  claimant  has  ever  received  professional            treatment for her emotional maladies.  It  is also noteworthy            that, in her response  to the Secretary's motion to  dismiss,            claimant  attributed  her  failure  to appeal  solely  to  an            inability to obtain supporting  evidence for the period prior            to  1980 (when her insured status  expired).  As a result, we            agree  that  claimant  has  failed to  "present  prima  facie            evidence  of incompetency," id. at  302, that can  be said to                                        ___            have  prevented  her  from  comprehending   or  invoking  the            administrative appeal process.                 Claimant's challenge to the wording of the denial notice            likewise proves unavailing.   To be sure, a number  of courts            have determined that  an earlier  version of  the notice  was            sufficiently misleading as to be  constitutionally defective.            See,  e.g., Day v. Shalala,  23 F.3d 1052,  1064-66 (6th Cir.            ___   ____  ___    _______            1994); Gonzalez v. Sullivan, 914 F.2d 1197, 1202-03 (9th Cir.                   ________    ________            1990).   The offending  passage involved  in those  cases had            advised  claimants that "[i]f you do not request a hearing of            your  case within the prescribed  time period, you still have                                         -6-            the right to  file another  application at any  time."   See,                                                                     ___            e.g., id. at 1203.  The notice received by claimant, however,            ____  ___            did not  contain such language;  instead, it contained  a new            passage,  added by  the  Secretary  in  1990, which  read  as            follows:                 You have the right to file a new application at any                 time,  but filing a new application is not the same                 as  appealing  this  decision.     You  might  lose                 benefits if  you file a new  application instead of                 filing  an appeal.   Therefore,  if you  think this                 decision  is wrong,  you should  ask for  an appeal                 within 60 days.            Claimant's  insistence  that  such  revised  language  proves            equally  defective falls short.   See, e.g., Day,  23 F.3d at                                              ___  ____  ___            1065   (suggesting  that   the  1990   revision   "cured  the            deficiencies"  found  in  the  earlier  version);  Rooney  v.                                                               ______            Shalala, 879 F.  Supp. 252, 255 (E.D.N.Y.  1995) (noting that            _______            the revision "explicitly set forth  the critical information,            missing from the earlier  form, concerning the adverse effect            of failing to appeal").                 As  to  claimant's final  contention,  even  were we  to            assume that an obligation to help  develop the medical record            might arise at the  initial review stage, it is  not apparent            that the  Secretary failed to make  "reasonable effort[s]" to            do   so.     20  C.F.R.      404.1512(d).     The  Disability            Determination Rationale accompanying the denial of claimant's            first  application  stated  that  the  agency  "contacted any            available  source"  of   information.    Moreover,   we  have                                         -7-            indicated   that,   while  the   Secretary   "must   make  an            investigation  that  is  not  wholly  inadequate   under  the            circumstances," Miranda  v. Secretary  of HEW, 514  F.2d 996,                            _______     _________________            998 (1st Cir. 1975),  she need not "go to  inordinate lengths            to develop a claimant's case," Thompson v. Califano, 556 F.2d                                           ________    ________            616, 618 (1st Cir. 1977); accord, e.g., Currier  v. Secretary                                      ______  ____  _______     _________            of HEW,  612  F.2d  594, 598  (1st  Cir.  1980)  (Secretary's            ______            obligation requires attempt  "without undue  effort" to  fill            evidentiary  gaps by, inter  alia, ordering "easily obtained"                                  ___________            medical reports).  The record of claimant's medical treatment            prior  to June 1980 proves  to have been  anything but easily            obtainable; even with the assistance of counsel, claimant was            unable  to procure most of such evidence prior to her request            for  Appeals Council  review  in connection  with her  second            application.                  Accordingly,  as no  colorable constitutional  claim has            been presented, we agree with the district court that subject            matter  jurisdiction  was  lacking.1     See,  e.g.,  Doe  v.                                               1     ___   ____   ___                                            ____________________               1   Claimant separately contends that  the Appeals Council               1            reappraised her new  evidence in a manner that  constituted a            de  facto  reopening,  subject  to  judicial  review.    This            argument was not advanced below and so is not properly before            us.  See,  e.g., Evangelista  v. Secretary of  HHS, 826  F.2d                 ___   ____  ___________     _________________            136, 144  (1st Cir. 1987).   We find it without  merit in any            event.  See, e.g., Hall v. Chater, 52 F.3d 518, 521 (4th Cir.                    ___  ____  ____    ______            1995) (rejecting similar argument  on ground that  "Secretary            must  be afforded some leeway in making a decision whether to            reopen"); Torres, 845 F.2d at 1139 (noting that  Secretary is                      ______            "entitled to make a threshold inquiry and review the evidence            presented ... in order to resolve the reopening issue").                                         -8-            Secretary of HHS, 744 F.2d 3, 5 (1st Cir.  1984) (per curiam)            ________________            (affirming dismissal on jurisdictional grounds  after finding            "no tenable  constitutional claim").   Whether claimant might            yet  be  able  to  persuade  the  Secretary  to  reopen   her            application,  based on  new and  material  evidence uncovered            since the date of the Appeals Council  ruling, is a matter we            need not address.2                             2                 Affirmed.                 _________                                            ____________________               2    Indeed,  such a  request  might  be  bolstered by  an               2            apparent error  in the Secretary's  ruling here.   Under  the            applicable  regulations,  a  final  agency  decision  may  be            reopened:   (1)   within   twelve  months   of   the  initial            determination "for any reason," (2) within four years thereof            for  "good  cause"  (defined  to include  "new  and  material            evidence"), and  (3) "at  any  time" for  the purpose,  inter                                                                    _____            alia,  of  "correct[ing] clerical  error  or  any error  that            ____            appears  on the face of the evidence that was considered when            the  determination or decision was  made."  See  20 C.F.R.                                                           ___            404.988, 404.989.                 In the instant case, the ALJ rejected claimant's hearing            request  on the ground that  no "good cause"  had been shown,            and  the Appeals  Council thereafter  declined review  on the            same  basis.   Yet  claimant's second  application was  filed            within  twelve months  of  the  January  13, 1992  notice  of            denial.   Construed as a request for reopening, therefore, it            arguably should  have been  addressed under the  "any reason"            standard rather than the  "good cause" standard.   We express            no  view  as to  the  effect of  any  possible error  in this            regard,  however, inasmuch  as  claimant has  not raised  the            issue either below or on appeal.                                         -9-
