Ingmire v. Astrue, No. 09-1148 (10th Cir. 2009)

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FILED United States Court of Appeals Tenth Circuit December 30, 2009 UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker FOR THE TENTH CIRCUIT Clerk of Court DAVID C. INGMIRE, Plaintiff-Appellant, v. MICHAEL J. ASTRUE, Commissioner of Social Security, No. 09-1148 (D.C. No. 1:07-CV-01262-REB) (D. Colo.) Defendant-Appellee. ORDER AND JUDGMENT * Before KELLY, PORFILIO, and O BRIEN, Circuit Judges. David C. Ingmire appeals from a district court order dismissing his social-security appeal for lack of jurisdiction. We have appellate jurisdiction under 28 U.S.C. § 1291 and 42 U.S.C. § 405(g), and we AFFIRM. * After examining the briefs and appellate record, this panel has determined unanimously to grant the parties request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. B ACKGROUND In August 2003, Ingmire applied pro se for disability insurance benefits (DIB), stating he became disabled on February 7, 2001, due to back and leg pain, headaches, muscle and nerve damage to his abdomen, and bowel incontinence. The Social Security Administration (SSA) denied the application in December 2003, concluding that Ingmire failed to prove he had a disability on or before the time his disability coverage ended in December 2002. Ingmire did not appeal. In July 2004, Ingmire again applied pro se for DIB. He repeated his February 7, 2001 disability onset date, and listed the causes as [n]erve damage in back/abdomen, back inj, headaches, neck prob[.] A.R. at 50. The SSA denied this application, stating it concerned the same issues raised by the August 2003 application. Aplt. App. at 26. Ingmire retained counsel and requested a hearing before an administrative law judge (ALJ). At the hearing, Ingmire s attorney stated he was unaware of any medical reason that would have prevented Ingmire from appealing, and he argued against the application of res judicata. A.R. at 219; Aplt. App. at 44. Afterward, the ALJ issued a dismissal order, concluding that Ingmire s 2004 DIB application was barred by res judicata and that no circumstances warranted reopening the case. The ALJ also noted that the SSA had denied a claim for supplemental security income (SSI) filed by Ingmire, but that he did not appeal that denial. -2- When the Appeals Council upheld the ALJ s decision, Ingmire sought review in federal district court. The district court concluded it lacked jurisdiction, and it dismissed the case. D ISCUSSION We review a district court s decision on subject matter jurisdiction de novo. Reber v. Steele, 570 F.3d 1206, 1209 (10th Cir. 2009). Neither the district court nor this court has jurisdiction to review the [Commissioner] s refusal to reopen a claim for disability benefits or determination such claim is res judicata. Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir. 1990) (per curiam). But jurisdiction does exist when a plaintiff raises a colorable constitutional claim. Blair v. Apfel, 229 F.3d 1294, 1295 (10th Cir. 2000) (per curiam). 1 To that end, Ingmire argues he was not afforded due process. Specifically, he claims he received no notice that res judicata would be considered at th[e] hearing before the ALJ. Aplt. Opening Br. at 13 (italics omitted). To fulfill notice requirements, constitutional due process requires only that parties be informed in a [manner] reasonably calculated to apprise them of the pending action and provide[d] an opportunity to respond. Rector v. City & 1 There may also be jurisdiction when the Commissioner reconsiders the merits of an application previously denied. See Taylor ex rel. Peck v. Heckler, 738 F.2d 1112, 1115 (10th Cir. 1984). But simply considering evidence from a prior claim does not confer jurisdiction where, as here, the ALJ expressly declined to reopen the proceedings. See Hamlin v. Barnhart, 365 F.3d 1208, 1215 n.8 (10th Cir. 2004); Brown, 912 F.2d at 1196. -3- County of Denver, 348 F.3d 935, 948 (10th Cir. 2003). The Notice of Disapproved Claim sent to Ingmire clearly indicated, in layman s terms, that res judicata was the reason for the denial of his 2004 DIB application. Aplt. App. at 26. In response to that notice, Ingmire retained counsel and requested a hearing. While the Notice of Hearing subsequently sent to Ingmire did not mention res judicata as an issue to be considered by the ALJ, that omission did not prevent Ingmire s counsel from appearing at the hearing and arguing against the application of res judicata. Ingmire was afforded due process. Ingmire argues that Harris v. Callahan, 11 F. Supp. 2d 880 (E.D. Tex. 1998), compels a contrary conclusion. We disagree. In Harris, the plaintiff was proceeding pro se, had no recollection of prior proceedings, and was not given an opportunity to formally challenge the application of res judicata. Id. at 882, 884-85. But here, Ingmire had counsel, who was, or should have been, aware of the basis for the SSA s denial of benefits, and was able to argue at the hearing against the application of res judicata. Finally, to the extent Ingmire challenges the denial of SSI benefits, his failure to exhaust administrative remedies or to show why exhaustion was not required precludes judicial review. See 20 C.F.R. § 416.1400(a)(5) (providing that completion of the administrative-review process is a prerequisite to judicial review); Marshall v. Shalala, 5 F.3d 453, 455 (10th Cir. 1993) (observing that a social-security claimant need not exhaust administrative remedies if full -4- exhaustion would be futile, there is irreparable harm, and there is a colorable constitutional claim collateral to the substantive benefits claim). C ONCLUSION The judgment of the district court is AFFIRMED. Entered for the Court Terrence L. O Brien Circuit Judge -5-

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