Unpublished Disposition, 896 F.2d 1370 (9th Cir. 1984)

MEMORANDUM^** 

Henry Johnson appeals the district court's summary judgment for the Secretary of Health and Human Services in Johnson's Supplemental Security Income appeal from the ALJ's decision that he is not disabled. We review de novo a district court's summary judgment for the Secretary to determine whether it is supported by substantial evidence and free from legal error. Kellar v. Bowen, 848 F.2d 121, 123 (9th Cir. 1988). We affirm.

Johnson's argument, that the ALJ's decision that he cannot control his drinking is unsupported by substantial evidence, lacks merit. Under Cooper v. Bowen, 815 F.2d 557, 560 (9th Cir. 1987), the ALJ specifically found that "the claimant's continuous drinking is considered to be attributable to lack of serious motivation for change rather than to inability to voluntarily control use." Substantial evidence supports this conclusion.

Johnson abstained from drinking briefly while undergoing treatment at an alcohol abuse center. He was discharged twice from the program, once due to inconsistent attendance and once due to his lack of motivation to make the necessary sacrifices to resolve his alcohol problems. Johnson also worked as a service worker for the Economic Opportunity Council while he was drinking. These facts support the ALJ's conclusion that Johnson is unwilling to control his drinking, despite his ability to do so.

Johnson's next argument, that the ALJ's decision that he is not disabled is unsupported by substantial evidence, also lacks merit. The objective medical evidence, thoroughly recounted by the ALJ in her decision, indicates that Johnson is not disabled. Johnson's cardiovascular system is generally stable. Tests revealed no pancreatitis or active liver disease. Chest x-rays revealed no active diseases. An electrocardiogram discovered no significant cardiac abnormalities. Dr. Burton, an examining physician, concluded that Johnson's minimal pulmonary abnormalities would not require the use of a respirator eighteen hours a day, as Johnson alleged. Burton concluded that Johnson is capable of non-strenuous work. The San Francisco Department of Social Services indicated that Johnson could do work other than heavy work on a full time basis. Two other examining physicians found that Johnson's impairments presented no exertional limitations.

We also reject Johnson's argument that the district court erred in finding that it lacked subject matter jurisdiction to review the ALJ's decision not to reopen Johnson's February 19, 1983 disability claim. An ALJ's decision whether to reopen a prior disability decision is wholly discretionary. Davis v. Schweiker, 665 F.2d 934, 935 (9th Cir. 1982). That decision is not considered a "final decision" of the Secretary and, therefore, confers no subject matter jurisdiction upon the district court. Taylor v. Heckler, 765 F.2d 872, 877 (9th Cir. 1985).

Johnson's assertion that his due process rights were violated because he was unaware of the hearing on his application does not change our conclusion. Although Johnson was hospitalized until February 28, 1984, he had until March 30, 1984, to respond to the ALJ's order to show cause why he failed to appear at the February 9, 1984 hearing. Johnson does not explain why he did not respond to the ALJ's order.

For these reasons, the decision of the district court is AFFIRMED.