Unpublished Dispositionjennie A. Pruchniewski, Plaintiff-appellant, v. Secretary of Health and Human Services, Defendant-appellee, 838 F.2d 471 (6th Cir. 1988)

ORDER

This appeal has been referred to a panel of this court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination of the record and briefs, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Plaintiff appeals the dismissal of her complaint filed under 42 U.S.C. § 405(g) for review of the Secretary's denial of her fifth application for disability insurance benefits. An Administrative Law Judge denied plaintiff's request for a hearing on the ground that plaintiff's claim previously had been denied based upon the same facts; the Appeals Council denied review. Plaintiff contends that her due process rights were violated because the Secretary did not establish that her prior applications were denied based upon the same evidence as supported her latest application.

Upon consideration, we conclude that plaintiff's due process rights were not violated. The Appeals Council reviewed the record and determined that plaintiff had submitted no new and material evidence requiring a reopening of her earlier claim. The Secretary is not required to prove that evidence is not new and material, and the refusal to reopen plaintiff's earlier claim did not deprive plaintiff of due process. Gosnell v. Secretary of Health & Human Services, 703 F.2d 216, 218-19 (6th Cir. 1983). Therefore, the district court correctly concluded that no jurisdiction exists to review the Secretary's decision. Califano v. Sanders, 430 U.S. 99 (1977); accord Wills v. Secretary, Health & Human Services, 802 F.2d 870, 873 (6th Cir. 1986).

Accordingly, the judgment of the district court is affirmed pursuant to Rule 9(b) (5), Rules of the Sixth Circuit.