           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                              FILED
                                                                           August 21, 2008

                                     No. 07-41089                       Charles R. Fulbruge III
                                   Summary Calendar                             Clerk


KRISTIE D. DECKARD

                                                   Plaintiff-Appellant
v.

MICHAEL J. ASTRUE, Commissioner of Social Security

                                                   Defendant-Appellee



                   Appeal from the United States District Court
                         for the Eastern District of Texas
                               USDC No. 6:06-cv-28


Before HIGGINBOTHAM, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Kristie Deckard appeals from a decision of the United States District
Court dismissing her motion to reopen a decision of the Social Security
Administration and to change her disability onset date to that submitted in her
first filing, asserting jurisdiction under 42 U.S.C. § 405(g).1 On February 24,


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
         “Any 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 after the mailing to him
                                           No. 07-41089

1994, Plaintiff’s mother filed an application for disability insurance benefits and
social security income payments with the Social Security Administration, urging
that Plaintiff was mentally incompetent. The Social Security Administration
denied the application in July 1994. Plaintiff did not appeal this denial. In
September 2002, now represented by counsel, Plaintiff filed another application
for disability insurance benefits, maintaining that she was unable to work since
May 31, 1994, due to a condition called hydrocephalus. The Social Security
Administration denied this claim and denied it again on reconsideration.
Plaintiff then applied for a hearing before an administrative law judge. In
December 2004, the ALJ found that Plaintiff had an organic mental disorder
that caused a presumptive disability and that she should receive benefits for a
period beginning on May 31, 1994. Plaintiff then requested review by the
Appeals Council, requesting a reopening and review of the Social Security
Administration’s earlier denial of her February 24, 1994, application for
disability insurance benefits and social security income. In November 2005, the
Appeals Council found no basis for review of that decision and declined to reopen
the case. Plaintiff then appealed to the United States District Court for the
Eastern District of Texas. The district court referred the matter to a magistrate
judge. Adopting the judge’s recommendation, the district court ordered that the
action be dismissed.
       On appeal, Plaintiff, citing to the Fourth Circuit decisions of Culbertson
v. Secretary of Health and Human Services2 and Young v. Bowen,3 urges that she
is “entitled to a disability onset date that she has submitted in this case
concerning her first protective filing dates for benefits” – that she should receive


of notice of such decision or within such further time as the Commissioner of Social Security
may allow. . . .”
       2
           859 F.2d 319 (4th Cir. 1988).
       3
           858 F.2d 951 (4th Cir. 1988).

                                                2
                                        No. 07-41089

payment for a disability commencing on February 24, 1994, as opposed to May
31, 1994. She alleges that the court’s refusal to reopen its initial denial of
disability benefits violates her due process rights because she lacked the mental
competence to appeal from the first proceeding and did not then have counsel.
       We are persuaded that the district court did not err in finding that
Plaintiff failed to raise a colorable constitutional claim below – due process or
otherwise – and in holding that it lacked jurisdiction to hear her claim.4
Plaintiff’s complaint stated,
       Plaintiff is disabled and is entitled to a disability onset date that
       she has submitted in this case concerning her first protective filing
       date for benefits . . . . Plaintiff prays that this Court: 1) find that
       plaintiff is entitled to disability benefits under the provisions of the
       Social Security Act from the first protective filing date for disability
       to the present; or 2) remand the case for a further hearing; or 3)
       award attorney’s fees under the Equal Access to Justice Act . . .
       and 4) order such other and further relief as the Court deems just
       and proper.

       In an “Exhibit A” attached to her complaint, she referenced several
statutes and regulations and then alleged,
       Claimant . . . lacked the mental competence for appeal due to
       memory deficit due to hydrocephalus, severe memory impairment
       due to cognitive disorder. Claimant should be paid accordingly to
       her first protective filing date of February 03, 1994 due to the above
       statu[t]e/regulation/rulings.

       This language is insufficient to raise a constitutional claim, and the
district court thus lacked jurisdiction to hear Plaintiff’s appeal to reopen her first



       4
         The magistrate judge concluded in a report, “Courts lack jurisdiction to review SSA’s
refusal to reopen a prior decision absent a colorable constitutional claim. Plaintiff does not
assert that this Court has jurisdiction based on a colorable constitutional claim, and Plaintiff’s
contention, therefore, lacks merit.” The district court adopted the magistrate’s report and
recommendation and dismissed Plaintiff’s case.

                                                3
                                        No. 07-41089

administrative case.5        To the extent that Plaintiff raises issues beyond her
request to reopen the first case, urging that “whether designated as res judicata
or administrative finality, the [first] decision must be overturned” because she
lacked the mental capacity to contest the denial of benefits when the decision
occurred, she did not raise these claims below, and we do not address them
here.6
         AFFIRMED.




         5
       See Califano v. Sanders, 430 U.S. 99, 109 (1977) (finding no subject matter jurisdiction
where a petition to reopen is not challenged on constitutional grounds).
         6
         See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.1999) (“This Court
will not consider an issue that a party fails to raise in the district court absent extraordinary
circumstances.”).

                                               4
