     Case: 15-41518      Document: 00513470432         Page: 1    Date Filed: 04/19/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-41518                         United States Court of Appeals
                                  Summary Calendar                                Fifth Circuit

                                                                                FILED
                                                                            April 19, 2016
ARISTILLE Q. COLLINS,                                                      Lyle W. Cayce
                                                                                Clerk
              Plaintiff - Appellant

v.

CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL
SECURITY,

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:11-CV-365


Before SMITH, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Aristille Q. Collins (“Collins”) appeals the district
court’s dismissal of his action for judicial review of the Defendant-Appellee
Acting Commissioner of Social Security’s (the “Commissioner”) decision
denying his second application for social security disability insurance benefits




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-41518
(“DIB”) on the basis of res judicata and declining to reopen his first application.
For the reasons below, we AFFIRM.
      In 2007, an Administrative Law Judge (“ALJ”) issued an unfavorable
decision on Collins’s initial application for DIB, wherein Collins alleged
disability beginning January 1, 1989.       The Appeals Council of the Social
Security Administration affirmed that decision, and Collins did not appeal to
the United States District Court.       Then in 2009, Collins filed a second
application for DIB, again alleging disability beginning January 1, 1989. An
ALJ denied that application on the basis of res judicata, finding that
application involved the same facts and issues as the 2007 decision. The
Appeals Council denied Collins’s request for review, and Collins appealed to
the district court.    When the Commissioner could not locate Collins’s
administrative claim file, the district court granted the Commissioner’s
request to remand the case for further administrative proceedings, including a
de novo hearing on Collins’s second application for DIB. In 2013, an ALJ held
there was no basis for considering Collins’s second application and the 2007
decision remains final, because the timeframe at issue in the second
application falls within the timeframe covered by the 2007 decision and the
conditions for reopening the 2007 decision do not apply. The Appeals Council
declined to accept jurisdiction because it concluded the decision is supported
by substantial evidence and is consistent with applicable laws.
      The district court then reopened the case. The Commissioner filed a
motion to dismiss for, inter alia, a lack of subject matter jurisdiction. The
magistrate judge concluded the court lacked subject matter jurisdiction to
consider the Commissioner’s 2013 decision absent a colorable constitutional
claim, which Collins had not sufficiently raised. The district court adopted the
recommendation of the magistrate judge and dismissed the case without
prejudice. Collins, proceeding pro se, now appeals.
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                                  No. 15-41518
      A district court’s decision to dismiss based on lack of subject matter
jurisdiction is reviewed de novo. Martin v. Barnhart, 48 F. App’x 916, 2002
WL 31114938, at *1 (5th Cir. 2002) (citing Ramming v. United States, 281 F.3d
158, 161 (5th Cir. 2001)).       Federal courts do not have subject matter
jurisdiction to review the Commissioner’s decision to deny an application for
benefits on the basis of res judicata or decision not to reopen an application for
benefits, unless a claimant asserts a colorable challenge to such decisions on
constitutional grounds.    Califano v. Sanders, 430 U.S. 99, 107–09 (1977);
Robertson v. Bowen, 803 F.2d 808, 810 (5th Cir. 1986); Martin, 2002 WL
31114938, at *1.     “Merely alleging a constitutional violation or making a
conclusory allegation is not enough; the claimant must have a colorable
constitutional claim.” Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997)
(citing Torres v. Shalala, 48 F.3d 887, 890 (5th Cir.1995)) (citing Robertson,
803 F.2d at 810).
      The Commissioner denied Collins’s second application for DIB on the
basis of res judicata and declined to reopen his first application. In Collins’s
opening appellate brief, he contends the ALJ improperly evaluated the
sufficiency of his pain allegations, did not give the appropriate amount of
weight to the Veterans Administration’s disability determination, and
inappropriately gave expert testimony more weight than his medical records.
These contentions only relate to the factual merits of the Commissioner’s
original, 2007 benefits decision and do not relate to any constitutional issues.
In Collins’s reply brief, he states that he has asserted a colorable constitutional
claim, but he does not explain how or why any of his constitutional rights have
allegedly been violated. We find Collins’s constitutional assertion to be merely
conclusory and not colorable.
      Because Collins has not asserted a colorable constitutional claim, the
district court did not err in holding that it lacked subject matter jurisdiction to
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                              No. 15-41518
review the Commissioner’s decision regarding res judicata and reopening.
AFFIRMED.




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