The Ho norable Pasco M. Bowman became Chief Judge of the United State s 1 Court of Appeals for the Eighth Circuit on April 18, 1998.



## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-2848

_____________ John D. Yeazel, * * Appellant, * * v. * Appeal from the United States * District Court for the Kenneth S. Apfel, Commissioner, * Western District of Missouri. Social Security Administration, * * Appellee. *

_____________ Submitted: April 15, 1998 Filed: June 23, 1998

_____________ Before McMILLIAN, BOWMAN, and MURPHY, Circuit Judges. 1

_____________ BOWMAN, Circuit Judge.
In 1989, John Yeazel applied for Social Security disability benefits. Th e Commissioner of Social Security denied hi s application, and Yeazel did not appeal the denial

. In 1995, Yeazel filed another application for disability benefits. Th e Commissioner denied this application on the basis of administrative res judicata,Yeazel's eligibility for Social Security disability benefits expired o n 2 De cember

31, 1989. For this reason his 1995 application, like his 1989 application , concerned his medical condition in 1989. The Hon orable William A. Knox, United States Magistrate Judge for th e 3 West ern District of Missouri, to whom the case was referred for final disposition b y consent of the parties pursuant to 28 U.S.C. § 636(c) (1994). -2- conclud ing that, because the first and second applications raised identical issues, 2 Yeaze l's failure to appeal the denial of the 1989 application precluded the 199 5 appl ication. Yeazel sought judicial review of the Commissioner's decision in th e District Court, but

the court dismissed his case for lack of jurisdiction, holding that it 3 could not review a denial of benefits based on res judicata. Yeazel appeals.

The S ocial Security Act grants federal courts jurisdiction to review th e Com missioner's decisions only if those decisions are made after a hearing. See 4 2 U.S.C. § 405(g), (h) (1994) . Accordingly, courts generally lack jurisdiction to review denia ls of benefits based on res judicata, because such denials are entered without a hearing. See Davis v. Sullivan , 977 F.2d 419, 420 (8th Cir. 1992). Courts may review denials based on res judicata, however, if those denials are c hallenged on constitutional grounds. Se e id. Yeazel makes one constitutional argument. He contends that th e Commissioner did not adequately a pprise him of the consequences of failing to appeal the denial of his 1989 application, thu s depriving him of property without due process.

Yea zel did not make this argument to the District Court. He has therefor e waived this issue, and we need not address it. See Ro th v. G.D. Searle & Co. , 27 F.3d 1303, 13 07 (8th Cir. 1994). We nevertheless note that this argument is, at any rate , without merit. The notice denying Yeazel's 1989 application stated that:

You ha ve the right to file a new application at any time, but filing a new application is not the same as appealing this decision. You might los e benefits if you file a new application instead of filing an appeal.-3-

Ther efore, if you think this decision is wrong, you should ask for a n appeal within 60 days.

Social S ecurity Notice of Reconsideration, Administrative Record Exhibit 3. Thi s notice thus informed Y eazel that he risked losing benefits should he fail to appeal and that he ought to appeal if he thought th e denial was wrong. Yeazel cites three cases in which a denial notice was found constitutionally inadequate. See Dealy v. Heckler , 616 F. Su pp. 880, 887 (W.D. Mo. 1984); Gonzalez v. Sullivan , 914 F.2d 1197, 1203 (9th Cir. 1990); Cuffee v. Sullivan , 842 F. Supp. 1219, 1224 (W.D. Mo. 1993). Each of these cases (none of which is binding on t his court), however, involved a notice that simply stated that the applicant either could appeal or could file a new application at any time, and that made no menti on whatsoever of the consequences of not appealing. See Dealy , 61 6 F. Supp. at 881; Gonzalez , 914 F.2d at 1203; Cuffee , 842 F. Supp. at 1224. The no tice provided to Yeazel, of course, was entirely different. This notic e was discussed br

iefly in Day v. Shalala , 23 F.3d 1052, 1065, n. 16 (6th Cir. 1994), in wh ichclass action plaintiffs challenging the validity of a denial notice different fro m the one provided to Yeazel conceded that the notice given to Yeazel was perfectl y adequate. Yeazel's notice was not misleading or likely t o induce an applicant to forego an appeal. We hold that this notice satisfied due process.
Next Yeazel argues that the Commissioner should not have accorded preclusive effect to the denial of his first application, because that denial was entered without a hearing. Yeazel does not contend that this issue involves the Constitution (although he conce ivably could have based this argument on the due process clause)

. Accordingly, the District Court correctly found that it had no jurisdiction to review this issue. See Davis , 977 F.2d at 420. In addition, this argument fails on t he merits. Some courts have held that an administrative order entered without a hearing may not have preclusive e ffect. See Dealy , 616 F. Supp. at 887-88 (citing cases). In this case , however, Y eazel did not receive a hearing solely because he himself elected not t o pursue one after his 1989 application initially was de nied. For this reason, Yeazel may-4-

not now complain that he had no hearing. See Lewellen v. Sullivan , 949 F.2d 1015, 1016 (8 th Cir. 1991) (upholding Commissioner's denial of benefits based on re s judicata where applicant had failed to appeal the denial without hearing of an earlie r application).
In another argument he did not make to the District Court, Yeazel contends that the Commissioner, while reviewing his 1995 application, reconsidered his 198 9 appli cation on the merits, thereby reopening the 1989 application. Because Yeaze l waived this argument by failing to raise the issue in the District Court, we need no t address it. In any event, the argument is without merit. When the Commissione r reconsiders an application on the merits we deem that application to be reopened and thus subject to judicial review. See Jelinek v. Heckler , 764 F.2d 507, 508 (8th Cir

. 1985). The record shows, however, that the Commissioner did not reconsider th e merits of the 1989 a

pplication in any way. To the contrary, the Commissioner simply dismissed Yeazel's 1995 application as res judicata. In support of his argument, Yeazel points to two statements that the Commissioner made in the notice denying the 1995 application. In this notice, the Commissioner stated that the 1995 ap plication raised the
same issues as the 1989 application and that if Yeazel were to submit an application rai sing different issues then res judicata would not apply. Contrary to Yeazel' s argument, however, these statements do n ot show that the Commissioner reconsidered the 1989 applicati on on its merits; they merely show that the Commissioner looked at the 1989 application long enough to determine that it raised the same i ssues as the 1995 application and that, therefore, the 1995 application was barred by res judicata. W e hold that the Commissioner has not reopened Yeazel's first application.

Yeazel als o has filed a motion in opposition to the administrative recor d submitted by the Commissioner, contending th at the record is incomplete. The record, however, contains all the material relevant to the issues on this appea l. Yeazel's motion is therefore denied.-5-

We affirm the judgment of the District Court.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.