UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WILLIAM C. HUGHES,
Plaintiff-Appellant,

v.
                                                                      No. 95-3033
SHIRLEY S. CHATER, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Charleston.
Dennis W. Shedd, District Judge.
(CA-94-1245-8-19AJ)

Submitted: May 20, 1997

Decided: June 5, 1997

Before HAMILTON and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

H. Jeff McLeod, Anderson, South Carolina, for Appellant. Arthur J.
Fried, General Counsel, Charlotte J. Hardnett, Deputy General Coun-
sel, A. George Lowe, Acting Associate General Counsel for Litiga-
tion, John M. Sacchetti, Acting Chief, Retirement, Survivors and
Supplemental Assistance Litigation Branch, Alan S. Frank, Office of
the General Counsel, SOCIAL SECURITY ADMINISTRATION,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

William C. Hughes sought judicial review of the Commissioner of
Social Security's ("Commissioner") decision not to reopen his prior
applications for benefits under Titles II and XVI of the Social Secur-
ity Act ("the Act"). He now appeals the district court's dismissal of
his action for lack of subject matter jurisdiction to review the Com-
missioner's decision. Finding that Hughes failed to state a claim upon
which relief could be granted, we affirm.

In September 1987, Hughes concurrently filed his first applications
for Supplemental Security Income [SSI] and Disability Insurance
Benefits, alleging that he had suffered from a deteriorating disc in his
back since July 1983. These claims were initially denied in November
1987, and upon reconsideration in March 1988. Thereafter, Hughes
brought these claims before an administrative law judge ("ALJ") in
September 1988. Prior to the hearing, Hughes was informed of his
legal right to have counsel present at the hearing. He was given infor-
mation on how to obtain counsel, along with a list of organizations
willing to provide legal services at a reduced rate or at no cost at all.
Hughes did not obtain legal counsel and proceeded pro se. Hughes's
wife was also present at the hearing.

In February 1989, the ALJ rendered a decision finding that Hughes
was not disabled on or before December 31, 1985, 1 that Hughes was
not entitled to Supplemental Security Income because he was not dis-
abled and that the psychiatric review revealed no medically-
determinable impairment. Hughes was notified of his right to request
an Appeals Council's review of this decision. He declined to seek
review, making the ALJ's decision final and binding on the Commis-
sioner.
_________________________________________________________________
1 December 31, 1985, was the last date that Hughes met the insured
requirements for entitlement to disability insurance benefits.

                     2
In January 1990, Hughes filed a second application for SSI bene-
fits, this time alleging a back impairment. This claim was initially
denied in March 1990, and upon reconsideration in May 1990. At
Hughes's request, a hearing was held before an ALJ in August 1990.
Hughes and his wife were present without legal representation. In
September 1990, the ALJ found that Hughes was not disabled and
that there was no evidence of a medically-determinable emotional or
mental impairment. Although Hughes did not have legal representa-
tion at this stage of the proceedings, he submitted additional medical
evidence and requested Appeals Council review of the ALJ's deci-
sion. The Appeals Council considered the additional evidence, but
denied review. Accordingly, the ALJ's September 1990 decision
became final and binding upon the Commissioner.

In March 1992, Hughes protectively filed a third application for
SSI benefits, alleging disability due to nerves and a deteriorating disc.
This claim was initially denied in May and upon reconsideration in
October 1992. Again, Hughes requested an ALJ hearing. At the hear-
ing, held in June 1993, Hughes was represented by counsel. The
ALJ's decision, dated July 23, 1993, found that Hughes had been dis-
abled since March 20, 1992. The ALJ based this decision on
Hughes's combination of physical and emotional problems, coupled
with his recent treatment for depression. The ALJ further found that
no new evidence had been presented that would warrant reopening
Hughes's prior applications.

In September 1993, Hughes, through counsel, requested review by
the Appeals Council. He submitted additional medical evidence and
a brief in support of his request to reopen his first two applications
for benefits. The Appeals Council denied review of the ALJ's July
1993 decision because it was decided in Hughes's favor, and refused
to reopen Hughes's prior applications because the first application
could not be reopened since more than four years had passed since the
date of its initial denial (November 1987), and there was no new and
material evidence that would warrant reopening the second applica-
tion. Further, the Appeals Council rejected Hughes's mental incompe-
tence claims because he had pursued his first claim to the ALJ hearing
level and the second claim to the Appeals Council, all without the
benefit of legal counsel. The Appeals Council ruled that the March

                     3
1990 order was the final decision disposing of Hughes's second appli-
cation for benefits.

Hughes commenced this action in federal district court seeking
judicial review of the Commissioner's decision. He claimed that he
was entitled to have his initial application for Disability Insurance
Benefits reopened because he was denied due process during the evi-
dentiary hearing before the ALJ. To support this claim, Hughes
alleged that he established a prima facie case that he was suffering
from a mental impairment at the time of the hearing. Hughes also
claimed that the Commissioner's decision not to reopen his second
application was not supported by substantial evidence.

Relying on Califano v. Sanders, 430 U.S. 99 (1977), the magistrate
judge recommended that the action be dismissed for lack of subject
matter jurisdiction. The district court agreed and dismissed the action.
Hughes appeals, claiming that the district court had subject matter
jurisdiction to judicially review the Commissioner's decision not to
reopen his prior claim, that he suffered a due process violation as a
result of the Appeals Council's decision not to reopen his prior appli-
cations, and that the Appeals Council's investigation into his prior
claims constituted a constructive reopening of those prior applica-
tions. We disagree.

A federal district court has limited authority to review "any final
decision of the Commissioner of Social Security made after a hearing
to which [the claimant] was a party . . .," 42 U.S.C. § 405(g) (1994),
and neither the Administrative Procedure Act nor§ 405(g) confers
subject matter jurisdiction on federal courts to review the Commis-
sioner's refusal to reopen a prior determination. See Sanders, 430
U.S. at 108. We agree with the district court that it lacked subject
matter jurisdiction over Hughes's claims under § 405(g). But Hughes
seeks on appeal to justify his action under two narrow exceptions to
the district court's lack of jurisdiction. These exceptions occur when
a claimant raises a colorable claim of unconstitutionality, see Young
v. Bowen, 858 F.2d 951, 954 (4th Cir. 1988), and when the Commis-
sioner, in denying a petition to reopen an earlier application, actually
addresses the merits of the claim, thereby constructively reopening
the prior application. See McGowen v. Harris, 666 F.2d 60, 65-66
(4th Cir. 1981).

                    4
Hughes urges on appeal that the Commissioner's refusal to reopen
his initial application for disability benefits violates his constitutional
due process rights.2 To support his due process claim, Hughes asserts
that at the time of the hearing he was mentally incompetent, proceed-
ing without the aid of legal representation, and that the ALJ did not
conduct the hearing in accord with established precedent in this cir-
cuit. See Shrader v. Harris, 631 F.2d 297, 301-02 (4th Cir. 1980) ("an
adverse determination made in an ex parte proceeding involving a
claimant who lacked mental competence to pursue an administrative
appeal could not be accorded res judicata . . . without violating the
claimant's right to due process.").

When presented with prima facie proof that mental illness pre-
vented the claimant from understanding the necessary procedure to
obtain an evidentiary hearing after the denial of his prior pro se claim,
the Commissioner is obliged to either conduct an evidentiary hearing
to rebut the prima facie case or reconsider the prior claim on the mer-
its. See Shrader, 631 F.2d at 302.

Our review of the evidence before the Commissioner discloses that
the Commissioner was not obliged to either conduct an evidentiary
hearing to rebut the evidence of mental incompetency or to reconsider
the prior claim on the merits. The medical evidence submitted by
Hughes fails to establish prima facie proof that he suffered from a
mental illness when he submitted his initial application for Disability
Insurance Benefits or that his mental illness prevented him from pur-
suing an administrative appeal following the denial of his claim.
Although Hughes's due process claim stated a colorable constitutional
claim, it was clearly without merit. Accordingly, we cannot say that
the district court erred in dismissing this claim. However, this claim
was not so patently frivolous as to deprive the district court of juris-
diction. See Bell v. Hood, 327 U.S. 678, 682-85 (1946). Therefore, we
find that the district court should have dismissed this claim for failure
to state a claim under Fed. R. Civ. P. 12(b)(6), and we affirm on that
basis. See Boock v. Shalala, 48 F.3d 348, 353 (8th Cir. 1995).
_________________________________________________________________
2 On appeal, Hughes is only contesting the Commissioner's decision
denying his petition to reopen his initial application for disability bene-
fits, which became final February 3, 1989.

                     5
Finally, Hughes asserts that the Commissioner, in denying his peti-
tion to reopen his initial application, constructively reopened that
application by reviewing it on the merits. We do not agree.

The Commissioner "must be afforded some leeway in making a
decision whether to reopen, so that it may `in fairness look far enough
into the proffered factual and legal support to determine whether it is
the same claim.'" Hall v. Chater, 52 F.3d 518, 521 (4th Cir. 1995)
(quoting McGowen, 666 F.2d at 67). Here, there is no indication that
the Commissioner ever addressed the merits of Hughes's initial claim
in denying his petition to reopen. Instead, the Appeals Council simply
found that more than four years had elapsed since the denial of that
claim. Because the Commissioner engaged in no more than a simple
inquiry to determine if the facts presented warranted reopening
Hughes's initial application and never reached the merits of that
application, jurisdiction over that decision cannot be based on a the-
ory of constructive reopening. Thus, this claim is meritless.

We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.

AFFIRMED

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