                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 04-1168



DORSEY V. HUFF,

                                               Plaintiff - Appellant,


           versus

JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL
SECURITY,   Commissioner,  Social  Security
Administration,

                                                Defendant - Appellee.


Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Glen E. Conrad, District Judge.
(CA-02-1304)


Argued:   December 3, 2004                 Decided:   February 1, 2005


Before WILKINS, Chief Judge, and NIEMEYER and DUNCAN, Circuit
Judges.


Affirmed by unpublished per curiam opinion.


ARGUED: Charles Dodson Bennett, Jr., Roanoke, Virginia, for
Appellant.   Rafael Melendez, Assistant Regional Counsel, SOCIAL
SECURITY ADMINISTRATION, Office of General Counsel, Region III,
Philadelphia, Pennsylvania, for Appellee. ON BRIEF: Patricia M.
Smith, Acting Regional Chief Counsel, Region III, SOCIAL SECURITY
ADMINISTRATION, Philadelphia, Pennsylvania; John L. Brownlee,
United States Attorney, Julie C. Dudley, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia,
for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).




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PER CURIAM:

     Dorsey Huff petitions for review of the final decision of the

Commissioner of Social Security (the "Commissioner") refusing to

reopen Huff's earlier application for disability insurance benefits

under the Social Security Act, 42 U.S.C. § 401 et seq.          (the

"Act").     The district court upheld the Commissioner's decision on

the grounds that the court lacked subject matter jurisdiction under

42 U.S.C. § 405(g).    Finding no error, we affirm.



                                  I.

     On February 14, 1995, Huff filed his first application for

disability insurance benefits, alleging disability as of December

31, 1981.    The West Virginia State Disability Agency denied Huff's

initial application.     In June of 1995, the agency denied Huff's

claim again upon reconsideration.

     Huff subsequently requested and was granted an administrative

hearing before an Administrative Law Judge ("ALJ"). On January 31,

1997, the ALJ issued an opinion concluding that Huff was not

eligible to receive disability insurance benefits.    In particular,

the ALJ noted that, in order to receive disability benefits, a

claimant must establish that disability onset during a period of

time in which the claimant enjoyed insured status.    See 42 U.S.C.

§ 423(a)(1)&(c).    The ALJ found that Huff's insured status expired

on December 31, 1982, and therefore, that Huff needed to prove he


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became disabled on or before that date.                    The ALJ ultimately

determined that Huff was not disabled on or before December 31,

1982, and that Huff was therefore ineligible to receive disability

benefits under the Act.          The agency Appeals Council declined to

review the ALJ's decision, and adopted the ALJ's opinion as the

Commissioner's        final   decision   denying    Huff's    application      for

disability benefits.

     Huff thereafter filed a civil action under 42 U.S.C. § 405(g),

seeking judicial review of the Commissioner's decision.                On March

18, 1999, a federal magistrate judge issued a memorandum opinion

and order upholding the decision.              We affirmed the magistrate

judge's order on appeal.           Huff v. Apfel, No. 99-1483, 1999 U.S.

App. LEXIS 23487 (4th Cir. Sept. 27, 1999).

     On November 29, 1999, Huff filed a second claim for disability

insurance benefits, again alleging an inability to work since

December 31, 1981.            The state agency dismissed Huff's second

application,     both    initially    and    upon   reconsideration,      on   the

grounds    of   res    judicata.      Huff    was   then    granted   a   second

administrative hearing based on his representation that he could

offer "new and material" evidence in support of his claim.

     On September 28, 2001, the ALJ issued an opinion dismissing

Huff's benefits claim, which he construed as a request to reopen or

revise    the   Commissioner's       prior   determination     that   Huff     was

ineligible to receive disability benefits.            In particular, the ALJ


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noted that, absent circumstances not present in Huff's case, a

claim may not be reopened or revised if more than four years has

elapsed between the initial denial of benefits and the subsequent

request to reopen.     20 C.F.R. § 404.988(b).           The Commissioner

denied Huff's initial application no later than June of 1995;

however, the request to reopen was not filed until November of

1999.   Thus, the ALJ concluded that he was without authority to

reopen or revise the Commissioner's initial determination that Huff

was ineligible to receive disability benefits.           Having concluded

that no grounds existed to reopen or revise the prior application,

the ALJ dismissed Huff's second application for benefits on the

grounds of res judicata.

     After the Appeals Council affirmed the ALJ's decision, Huff

filed a second lawsuit under 42 U.S.C. § 405, seeking judicial

review of the agency's decision. On December 4, 2003, the district

court   issued   a   final    judgment   and   opinion     upholding   the

Commissioner's decision.      In particular, the court observed that

Huff's second application for benefits was rightly construed (both

by the agency and by the parties to this litigation) as a request

to reopen Huff's initial application for disability benefits.          The

district court further noted that, under Califano v. Sanders, 430

U.S. 99, 107-08 (1977), federal courts are without jurisdiction to

review the Commissioner's refusal to reopen claims for disability

benefits   unless    the     claimant    challenges   the    refusal   on


                                    5
constitutional grounds.            Because Huff raised no constitutional

challenges in his petition to reopen, the district court concluded

that       it   lacked   subject    matter   jurisdiction   to    review   the

Commissioner's decision.

       The district court also rejected Huff's argument that the ALJ

"constructively reopened" his prior benefits claim.              Specifically,

Huff contended that, by granting a hearing and considering new

evidence on the merits, the ALJ exercised his administrative

discretion to reopen Huff's earlier claim.           See McGowan v. Harris,

666 F.2d 60, 65-66 (4th Cir. 1981) (if ALJ considers second

application on merits, first application deemed constructively

reopened and res judicata is waived).               Huff also argued that,

despite the ALJ's written denial of his second application, the ALJ

made a statement at the hearing that amounted to a "finding" of

disability, and that this finding constituted further evidence that

Huff's prior application had been constructively reopened.1



       1
      At the administrative hearing, the following exchange took
place between the ALJ and the vocational expert:

ALJ: Can an individual who was required to elevate his leg at least
     waist high, three or four hours out of an eight-hour workday,
     is there anything that you can think of that such a person
     could do?

A:     Not without accommodation.        No, sir.

ALJ: Okay. Now we've gotten over that hump.             Or that hurdle for
     Mr. Huff. . . .

Tr. at 76.

                                        6
     The district court reasoned, however, that even if the ALJ had

been inclined to reopen the prior application, he would have been

powerless to do so, since the Act precludes the reopening of an

application for benefits when more than four years has elapsed

since the initial claim was denied.      See King v. Chater, 90 F.3d

323, 325 (8th Cir. 1996) (reopening more than four years after

initial denial, absent clear error, would exceed ALJ's authority).

Accordingly, the district court dismissed Huff's petition to reopen

for lack of subject matter jurisdiction.



                                  II.

     On   appeal,   we   review   de    novo   the   district   court's

determination that it lacked subject matter jurisdiction to review

Huff's petition to reopen. National Taxpayers Union v. U.S. Social

Security Admin., 376 F.3d 239, 241 (4th Cir. 2004).         Huff raises

two arguments that require some attention on appeal.        First, Huff

contends that, pursuant to 20 C.F.R. § 404.988(c)(8),2 the initial

determination that he was not disabled can be reopened at any time

because the ALJ would have found him disabled if a medical expert

had testified at the administrative hearing.         Appellant's Br. at

33-35.    We find this argument unpersuasive, inasmuch as we have

previously held that "an error on the face of the evidence does not


     2
      Section 404.988(c)(8) authorizes the reopening of a benefits
claim at any time "to correct clerical error or an error that
appears on the face of the evidence."

                                  7
encompass a disputed issue of fact since, almost as a matter of

definition,    when    facts     are    in    dispute    no     single    answer     is

evidence."     Kasey v. Sullivan, 3 F.3d 75, 78-79 (4th Cir. 1993)

(internal quotation omitted).            Second, Huff claims that the ALJ

found him disabled at the September 2001 administrative hearing,

but   "reversed"     this   finding     when    the    ALJ    issued     his   written

decision     dismissing        Huff's        second     benefits       application.

Appellant's Br. at 36.         Huff claims that the reversal of the ALJ's

earlier "finding" constitutes an error on the face of the record

that permits reopening at any time under § 404.988(c)(8).                            We

disagree.     Even assuming that the ALJ's comments at the hearing

could fairly be construed as a finding of disability, "the ALJ's

written decision, not his questions at the hearing, control the

findings subject to review."           Woods v. Barnhart, No. 03-2592-KJV,

2004 U.S. District LEXIS 12969, at *22 (D. Kan. July 12, 2004).

Thus, this argument for reopening under § 404.988(c)(8) is also

without merit.

      After hearing oral argument in this case, and carefully

reviewing the record, briefs, and applicable case law, we conclude

that the district court correctly decided all the issues before it.

Accordingly,    we    affirm    the     district      court's    judgment       on   the

reasoning articulated in its memorandum opinion and order.



                                                                               AFFIRMED


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