                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 2 2002
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    VERN L. ROSENBARKER,

                Plaintiff-Appellant,

    v.                                                    No. 01-2272
                                                (D.C. No. CIV-98-1561-M/JHG)
    JO ANNE B. BARNHART, *                             (D. New Mexico)
    Commissioner of Social Security
    Administration,

                Defendant-Appellee.


                            ORDER AND JUDGMENT           **




Before EBEL , HOLLOWAY , and MURPHY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of




*
      On November 9, 2001, Jo Anne B. Barnhart became the Commissioner of
Social Security. In accordance with Rule 43(c)(2) of the Federal Rules of
Appellate Procedure, Ms. Barnhart is substituted for Larry G. Massanari as the
appellee in this action
**
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

      Plaintiff Vern L. Rosenbarker, appearing     pro se , appeals the district court’s

order adopting the magistrate judge’s report and recommendation granting the

Commissioner of Social Security’s motion to dismiss for lack of subject matter

jurisdiction. The district court, adopting the magistrate judge’s report and

recommendation, ruled that it lacked jurisdiction to review the Commissioner’s

decision not to reopen plaintiff’s prior applications, and dismissed the case with

prejudice. Plaintiff appeals, and we affirm.


                                   BACKGROUND

      Plaintiff initially applied for disability benefits in 1979. This application

was denied and plaintiff did not appeal the denial. Plaintiff filed a second

application for benefits on August 9, 1982. Again, this claim was denied and

plaintiff did not appeal the denial. Plaintiff filed his third, and present,

application on September 27, 1985. This application was denied initially, on

reconsideration, and following a hearing before an Administrative Law Judge

(ALJ). The ALJ ruled that the issues raised in the application had previously

been adjudicated and were, therefore, barred by the doctrine of res judicata.

The Appeals Council denied plaintiff’s request for review. Plaintiff appealed to



                                           -2-
the federal district court, which granted the Commissioner’s motion to dismiss.

Plaintiff filed an appeal of that decision with this court in October 1995.

      While plaintiff’s appeal was pending before this court, however, the

Commissioner agreed to remand plaintiff’s case to its Office of Hearings and

Appeals (OHA). The OHA remanded plaintiff’s case for a hearing before an ALJ

to determine whether, under the standards of Social Security Ruling (SSR)

95-1p, good cause existed to extend plaintiff’s time for requesting administrative

review of the 1979 and 1982 decisions denying him benefits.    1



      Following a hearing, at which plaintiff was represented by counsel, the ALJ

determined that plaintiff had not shown good cause to reopen the prior

applications. The ALJ found that plaintiff had no physical, educational, or

language difficulties that prevented him from filing timely requests for

reconsideration of his prior applications. The ALJ further found that plaintiff

failed to show good cause to reopen his prior applications because he did not



1
       SSR 95-1p established guidelines for determination of “good cause for late
filing of a request for administrative review as it applies to a claimant who
received an initial or reconsideration determination notice dated prior to July 1,
1991, which did not state that filing a new application instead of a request for
administrative review could result in the loss of benefits.” SSR 95-1p, 1995 WL
259487, *1 (April 26, 1995). SSR 95-1p provides, in relevant part, that the
Commissioner “will make a finding of good cause for late filing of a request for
administrative review . . . if a claimant received a notice covered by this Ruling
and demonstrates that, as a result of the notice, he or she did not timely request
such review.” Id. at *2.

                                          -3-
demonstrate that the allegedly defective notice was the reason he failed to file

a timely request for review.

      Plaintiff appealed to the Appeals Council, which denied review. He

then appealed to the district court, which dismissed the case for lack of subject

matter jurisdiction.


                                      ANALYSIS

      Because a decision not to reopen a case is not a final decision of the

Commissioner made after a hearing, it is not reviewable by federal courts.     See

Califano v. Sanders , 430 U.S. 99, 108 (1977). This bar to review exists “whether

or not the [Commissioner] held a hearing on whether good cause for the late

filing was shown.”     Dozier v. Bowen , 891 F.2d 769, 771 (10th Cir. 1989)

(quotation omitted). The only exception to this bar on judicial review is when the

refusal to reopen is challenged on constitutional grounds, an instance the Supreme

Court has described as “rare.”    See Califano , 430 U.S. at 109.

      Plaintiff contends the Commissioner erred by refusing to reopen his prior

applications. He claims his due process rights were violated because the denial

notices misled him regarding his right to file a new application and failed to

inform him that the failure to appeal would result in the loss of benefits. This

court has held that, in order to establish standing to raise such a constitutional

claim, “a plaintiff must demonstrate reliance on the allegedly defective denial

                                           -4-
notices.” Gilbert v. Shalala , 45 F.3d 1391, 1394 (10th Cir. 1995). “[M]ere

receipt of an allegedly defective denial notice is [in]sufficient to establish

standing.” Id. Plaintiff presented no evidence of reliance in this case. Indeed, he

admitted that he read the notices “just to the part where it says I was denied, and

I just totally threw it out - ripped them up, threw them away, and went and got

drunk.” R. Vol. II, at 54. By his own admission, therefore, his failure to file

timely requests for review was not a result of the allegedly defective notices.

Because plaintiff failed to demonstrate reliance, he lacks standing to maintain this

action. Gilbert , 45 F.3d at 1394.

       Therefore, the district court correctly ruled that it lacked jurisdiction to

review the Commissioner’s discretionary decision not to reopen plaintiff’s prior

applications. Plaintiff raises several other arguments on appeal that we do not

consider because he did not present them to the district court.     Crow v. Shalala ,

40 F.3d 323, 324 (10th Cir. 1994).

       The judgment of the United States District Court for the District of

New Mexico is AFFIRMED. The mandate shall issue forthwith.


                                                         Entered for the Court



                                                         William J. Holloway, Jr.
                                                         Circuit Judge


                                            -5-
