                   United States Court of Appeals,

                          Eleventh Circuit.

                              No. 94-6591

                       Non-Argument Calendar.

            Theodore S. SHERROD, Plaintiff-Appellant,

                                  v.

  Shirley S. CHATER, Commissioner of Social Security, Defendant-
Appellee.

                            Feb. 2, 1996.

Appeal from the United States District Court for the Southern
District of Alabama. (No. 93-0330-AH-C), Alex T. Howard, Jr.,
Judge.

Before TJOFLAT, Chief Judge, HATCHETT, Circuit Judge, and MORGAN,
Senior Circuit Judge.

     PER CURIAM:

     This case comes before us on appeal of the plaintiff Theodore

S. Sherrod from the district court's order dismissing his claim for

disability insurance benefits.     Since we agree with the district

court that it did not have subject matter jurisdiction to review

Sherrod's claim, we affirm.

                               BACKGROUND
     On July 18, 1988, Sherrod applied to the Department of Health

and Human Services for various disability and social security

benefits under Title II and Title XVI of the Social Security Act1,




     1
      At the time he filed for these benefits, Sherrod had not
worked for six years due to mental problems which gradually were
becoming worse. He was unable to attend to personal matters or
carry on a regular routine, and he was withdrawn, depressed, and
engaged in no social activities.
but the Secretary2 denied his petition.            With the assistance of

legal counsel, Sherrod requested and received a hearing before an

administrative law judge (ALJ) which was conducted on September 7,

1989.     By decision dated January 18, 1990, the ALJ concluded that

Sherrod was disabled as of July 1988, thus entitling him to receive

supplemental    security   income     under   Title   XVI.     Nevertheless,

Sherrod's insured status under Title II had expired in 1987,

thereby making him ineligible for disability insurance benefits.

Sherrod did not appeal the denial of his Title II insurance

benefits.

     In    April   1992,   Sherrod    filed   a   second     application   for

disability     benefits.     The     Secretary    denied     the   application

initially on the grounds that it covered the same issues which had

been decided when the 1990 claim was denied, and the new evidence

which Sherrod submitted was not sufficient to cause a change in the

earlier decision.     On reconsideration, the application was denied

on the basis that Sherrod's insured status had expired.               Sherrod

continued to pursue his claim by filing a request for a hearing

before the ALJ along with a petition to reopen the ALJ's 1990

decision.     In response, the ALJ wrote a letter dated December 8,

1992, to Sherrod stating that his request to reopen had no merit

since it was filed thirty months after the prior final decision.

Sherrod filed a request for review of the ALJ's decision, but the

     2
      In Sherrod's district court action, Donna E. Shalala,
Secretary of Health and Human Services, is identified as the
defendant. Since Sherrod's appeal, however, Shirley S. Chater,
Commissioner of Social Security, has been substituted as the
defendant. Nevertheless, for the sake of convenience, we simply
refer to "the Secretary" when identifying the party acting on
behalf of the Department of Health and Human Services.
Appeals Council took no action after it found that the ALJ's

decision was not subject to review according to agency regulations.

See 20 C.F.R. § 404.903.

      Undeterred by his previous setbacks, Sherrod continued his

quest for disability benefits by filing a complaint in the district

court on April 7, 1993, seeking judicial review of the ALJ's

refusal to reopen his case. The district court referred the matter

to a magistrate who issued a report and recommendation stating that

the district court had no jurisdiction to review the denial of a

request to reopen a prior, final decision.                  The district court

adopted the magistrate's report and recommendation over Sherrod's

objection and dismissed the case.

                                  DISCUSSION

       The decision of the district court as to its subject matter

jurisdiction is a question of law which we review de novo.                  Mutual

Assurance,   Inc.   v.   United   States,      56    F.3d    1353,   1355   (11th

Cir.1995).

       The district court's jurisdiction in this case is limited by

the Social Security Act, and judicial review only exists over

"final decisions of the Secretary."            42 U.S.C. § 405(g).           As a

general matter, district courts do not have jurisdiction over the

Secretary's refusal to reopen a claim since such a refusal is not

a "final decision" within the meaning of section 405(g).               Califano

v. Sanders, 430 U.S. 99, 107-08, 97 S.Ct. 980, 985-86, 51 L.Ed.2d

192   (1977);   Stone    v.   Heckler,     778      F.2d    645,   646-47   (11th

Cir.1985). Nevertheless, subject matter jurisdiction will exist in

those cases where "a social security claim is in fact reopened and
reconsidered on the merits to any extent on the administrative

level."      Macon v. Sullivan, 929 F.2d 1524, 1529 (11th Cir.1991);

see   also    Passopulos   v.   Sullivan,     976   F.2d   642,   645-46    (11th

Cir.1992).      Also, judicial review may be had where the claimant

raises a colorable constitutional issue, Callis v. Department of

Health & Human Servs., 877 F.2d 890, 891 (11th Cir.1989), because

"[c]onstitutional questions obviously are unsuited to resolution in

administrative hearing procedures and, therefore, access to the

courts is essential to the decision of such questions."                   Sanders,

430 U.S. at 109, 97 S.Ct. at 986.         On this appeal, Sherrod contends

that the district court has subject matter jurisdiction because the

ALJ in fact reopened his claim on the merits and because he has

raised a colorable constitutional claim.            Sherrod also claims that

the   district    court    erred   by   not   remanding    his    claim    to   the

Secretary for further consideration in light of new evidence.3

                    A. Reconsideration of the merits

          In 1992, Sherrod made a request to the ALJ to reopen his 1990

application for benefits. The ALJ responded by letter stating that

Sherrod's request had "no merit" since it had been filed thirty

months after the original decision. On appeal, Sherrod argues that

this response by the ALJ demonstrates that his case was reopened

and the merits reconsidered.        We do not agree.       The use of the word

"merit" in the ALJ's letter is a reference to the merits of

Sherrod's request to reopen his claim.               It is not, as Sherrod

      3
      Sherrod makes the additional argument that the district
court erred by failing to rule on his motion for summary
judgment. Our conclusion that the district court lacked subject
matter jurisdiction, however, makes it unnecessary for the
district court to rule on that motion.
contends, a reference to the merits of the claim itself.                       This

statement clearly does not touch upon the merits of the prior

administrative     decision,    and    there     is   absolutely    no     evidence

showing that the ALJ conducted a review of the record of Sherrod's

1990 claim.    As such, Sherrod's argument on this point has, for

lack of a better phrase, no merit.

                        B. Constitutional claim

        Sherrod next argues that the Secretary's refusal to reopen

the 1990 decision constitutes a denial of constitutional due

process.    In making this argument, he relies upon our decision in

Elchediak v. Heckler, 750 F.2d 892 (11th CIr.1985).                In that case,

we held that a claimant raises a colorable constitutional claim if

the    following   criteria    are    present:        (1)   he   suffers    from   a

medically-documented mental illness which serves as the basis for

his disability claim;     (2) on his first application he was without

the assistance of counsel or other suitable representation;                     and

(3) he cannot assert a new claim for benefits because he now lacks

insured status.     Id. at 894-95.       It is undisputed that the first

and third of the      Elchediak criteria are met in this case, but

Sherrod blithely dismisses as unimportant the element regarding the

lack of counsel.     We believe he misses the point.              Our overriding

concern in Elchediak was that the claimant's mental illness,

coupled with his pro se status, prevented him from proceeding from

one administrative level to another in a timely fashion.                    Id. at

894;    see Young v. Bowen, 858 F.2d 951, 955 (4th Cir.1988) ("It

offends fundamental fairness, however, to bind a claimant to an

adverse ruling who lacks both the mental competency and the legal
assistance        necessary     to     contest      the   initial     determination.");

Shrader v. Harris, 631 F.2d 297, 302 (4th Cir.1980) ("Our opinion

applies solely to claimants afflicted by mental illness whose

claims, presented pro se, were denied ex parte.");                                see also

Canales v. Sullivan, 936 F.2d 755 (2d Cir.1991);                              Parker v.

Califano, 644 F.2d 1199 (6th Cir.1981). This concern is alleviated

where, as here, the claimant is assisted by legal counsel who

understands the administrative process.                        Thus, we conclude that

Sherrod's argument of a constitutional claim based on Elchediak

fails.4

                            C. Remand for new evidence

           Finally, Sherrod argues on appeal that the district court

should       have   remanded     his     case    to    the     Secretary    for    further

consideration in view of new evidence.                       See 42 U.S.C. § 405(g).5

In so doing, he relies on our decision in Caulder v. Bowen, 791

F.2d       872   (11th    Cir.1986).         Once     again,    however,    Sherrod    has

misinterpreted           case   law.    In      Caulder,       we   were   faced   with   a

situation where a claimant had come across new medical evidence


       4
      Sherrod attempts to downplay the importance of the fact he
had legal assistance during his 1990 application for benefits by
relying on the Sixth Circuit's decision in Stoner v. Secretary of
Health and Human Servs., 837 F.2d 759 (6th Cir.1988). In Stoner,
the court concluded that a claimant's due process rights were
violated even though he was represented by counsel at a hearing
before an ALJ. The Stoner court's decision, however, turned on
the fact that the claimant himself was unable to be at the
hearing due to medical complications. Id. at 761. Such is not
the case here as both Sherrod and his legal counsel were present
during the 1990 application for benefits.
       5
      This provision provides in part that a district court "may
at any time order additional evidence to be taken before the
Secretary, but only upon a showing that there is new evidence
which is material." 42 U.S.C. § 405(g).
regarding his disability while his claim was still on direct

review.    Id. at 875.     In other words, the evidence that the

claimant had at the time the case was before the district court was

not available when his claim was before the Secretary.     Such is not

the situation in Sherrod's case.           Sherrod's "new evidence" is

medical testimony that was not introduced in his 1990 application

for benefits.    He used this "new evidence" to launch a collateral

attack on the 1990 claim by filing a new claim in 1992.     Unlike the

situation in Caulder, this evidence was before the Secretary and

the ALJ when the decision was made not to reopen Sherrod's 1990

claim.    Thus, this information is not "new evidence" within the

meaning of section 405(g) or Caulder that would require a remand

for further consideration at the administrative level.

                              CONCLUSION

     The district court correctly concluded that it did not have

subject matter jurisdiction to review the Secretary's refusal to

reopen Sherrod's 1990 claim for benefits.

     AFFIRMED.
