IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-41183

Summary Calendar

VINCENT KEITH YATES, 

 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 6:12-CV-843

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.

PER CURIAM:*

After a 2003 administrative hearing, Vincent Yates was found disabled

under Title II and Title XVI of the Social Security Act. Later that year, 

information came to light about his employment history that called his 

testimony into question. His case was reopened, and he was denied 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.

United States Court of Appeals

Fifth Circuit

FILED

April 6, 2015

Lyle W. Cayce

Clerk

 

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The district court affirmed the decision. Finding that there was a sufficient 

basis for reopening his case and no merit to his other arguments, we affirm.

I.

Yates applied for Title II disability benefits and Title XVI supplemental 

security income benefits in 2002, claiming an inability to work beginning on 

March 11, 2002 due to back surgery. In 2003, Yates was given a hearing before

Administrative Law Judge (ALJ) William Herbert in Minneapolis, who found 

in his favor on both claims. Yates began receiving benefits. 

Later in 2003, the Social Security Administration received information 

that Yates was working as a taxi driver prior to the hearing, during a period 

for which he claimed disability. This led to a hearing in 2007 before ALJ 

Walter Orr in Texas, where Yates had moved in the interim. Yates appeared 

pro se. ALJ Orr reopened the case and determined that Yates was not disabled. 

Yates challenged the decision in the district court, which found that he 

did not receive sufficient notice of his right to counsel and remanded the case. 

ALJ Orr conducted a new hearing in 2011 at which Yates was represented by 

counsel, and issued a decision later that year finding that Yates was not 

disabled. The decision relies in large part on testimony given by Dr. Howard 

McClure in the 2007 hearing, indicating that Yates did not have the requisite 

impairment. It also includes a lengthy discussion of the decision to reopen the 

case due to Yates’s fault in failing to disclose his work as a taxi driver to ALJ 

Herbert at the 2003 hearing. The Appeals Council denied Yates’s request for 

review. Yates then challenged the ruling in the district court. The magistrate 

judge recommended dismissing the complaint challenging the decision to 

reopen for lack of jurisdiction and, with regard to the ruling denying benefits, 

found no error. The district court adopted that recommendation. Yates 

appeals. 

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II.

On appeal, Yates argues that ALJ Orr erred in reopening his hearing 

without making the required findings. Under 20 C.F.R. § 404.988(c) and 20 

C.F.R. § 416.1488(c), a determination may be reopened at any time if “[i]t was 

obtained by fraud or similar fault.” Although ALJ Orr found that Yates 

obtained a favorable determination by “similar fault,” Yates argues that his 

taxi driving job did not constitute substantial gainful activity, and thus was 

not material to ALJ Herbert’s decision to award him benefits. See 42 U.S.C. 

§ 423(d)(1)(A) (“The term ‘disability’ means inability to engage in any 

substantial gainful activity . . . .”). 

The government asserts that the courts lack subject matter jurisdiction 

to review the decision to reopen Yates’s case. Federal courts have jurisdiction 

to review the decisions of the Commissioner under 42 U.S.C § 405(g), which 

states that “[a]ny individual, after any final decision of the Commissioner of 

Social Security made after a hearing to which he was a party, irrespective of 

the amount in controversy, may obtain a review of such decision by a civil 

action commenced within sixty days . . . .” See also 42 U.S.C. § 1383(c)(3)

(granting review of Title XVI determinations to the same extent provided by 

42 U.S.C. § 405(g)). In Califano v. Sanders, 430 U.S. 99, 108–09 (1977), the 

Supreme Court held that the denial of a petition to reopen may not be reviewed 

unless it is challenged on constitutional grounds. Noting that the statutory 

grant of judicial review is limited to “final decision[s] . . . made after a hearing” 

and that “a petition to reopen a prior final decision may be denied without a 

hearing,” the Court held that section 405(g)’s jurisdictional grant does not 

encompass the refusal to reopen claims for benefits. Id. at 108; see also 

Robertson v. Bowen, 803 F.2d 808, 810 (5th Cir. 1986) (“[T]he federal courts 

have no subject matter jurisdiction to review a decision by the Secretary not to 

reopen a case.”). The Court also observed that “an interpretation that would 

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allow a claimant judicial review simply by filing and being denied a petition to 

reopen his claim would frustrate the congressional purpose . . . to impose a 60-

day limitation upon judicial review of the Secretary’s final decision on the 

initial claim for benefits.” Sanders, 430 U.S. at 108. 

Sanders dealt only with jurisdiction over the decision not to reopen; we 

have declined to extend it to decisions to reopen that result in a decision 

against a claimant. In Cole ex rel. Cole v. Barnhart, 288 F.3d 149, 152 (5th Cir. 

2002), we noted that “we review de novo the conclusion that good cause exists 

for reopening.” See also id. at 150 (“We have jurisdiction to consider whether 

there is error in such a decision to reopen for good cause . . . when the reopening 

. . . led to the . . . partially unfavorable decision.” (citing Cieutat v. Bowen, 824 

F.2d 348, 358 n.15 (5th Cir. 1987))); CAROLYN A. KUBITSCHEK & JON C. DUBIN,

SOCIAL SECURITY DISABILITY LAW & PROCEDURE IN FEDERAL COURT § 6:48 (“In 

the Fifth Circuit, the court reviews de novo the decision of the Commissioner 

that there is good cause for reopening.”). Cole involved the decision to reopen 

a case for “good cause,” which is a different ground than ALJ Orr’s decision 

here to reopen due to “fraud or similar fault.” See 20 C.F.R. § 404.988(b) 

(allowing reopening of Title II determinations “[w]ithin four years . . . if we find 

good cause, as defined in § 404.989, to reopen the case”); 20 C.F.R. § 416.1488

(allowing reopening of Title XVI determinations “[w]ithin two years of the date 

of the notice of the initial determination if we find good cause”). The same 

rationale nonetheless applies to decisions to reopen based on fraud or similar 

fault made after a hearing. See Wyatt v. Barnhart, 349 F.3d 983, 984–86 (7th 

Cir. 2003) (reversing ALJ’s decision to reopen for “similar fault”). The 

magistrate judge thus erred in concluding that the decision to reopen is not 

reviewable. 

Our review on the merits of the decision to reopen provides an alternate 

basis for affirming. The parties agree that a decision to reopen based on 

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“similar fault” requires that a claimant has made an incorrect or incomplete 

statement that is material to the determination, or knowingly concealed

information that is material to the determination. Cf. 42 U.S.C. § 405(u)(2) 

(defining “similar fault” in the context of the Commissioner’s duty to disregard 

evidence when “fraud or similar fault was involved in the providing of such 

evidence”).

Although we review the ALJ’s legal conclusion regarding the decision to 

reopen de novo, Cole, 288 F.3d at 152, the factual findings may not be 

questioned if they are supported by “substantial evidence.” 42 U.S.C. 405(g)

(“The findings of the Commissioner of Social Security as to any fact, if 

supported by substantial evidence, shall be conclusive . . . .”); Brown v. Apfel, 

192 F.3d 492, 496 (5th Cir. 1999) (“Our review of the Commissioner’s decisions 

with respect to a denial of SSI benefits is limited to ascertaining ‘whether (1) 

the [final] decision is supported by substantial evidence and (2) [that] proper 

legal standards were used to evaluate the evidence.’” (citation omitted and 

brackets in original)). “Substantial evidence is more than a mere scintilla. It 

means such relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion.” Brown, 192 F.3d at 496 (citation and internal 

quotation marks omitted). ALJ Orr’s determination that Yates’s fault was 

material to ALJ Herbert’s decision easily meets this standard. The ALJ’s

decision notes that Yates was asked if he had worked since the date he claimed 

disability, and falsely answered that he had not. It also points out that ALJ 

Herbert explicitly considered Yates’s credibility in reaching his ultimate 

determination, and thus that the misrepresentation was material. Yates’s 

claim that his work did not constitute substantial gainful activity is beside the 

point; an ALJ may consider any work in its determination. See 20 C.F.R. 

§ 404.1571 (“Even if the work you have done was not substantial gainful 

activity, it may show that you are able to do more work than you actually did. 

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We will consider all of the medical and vocational evidence in your file to decide 

whether or not you have the ability to engage in substantial gainful activity.”). 

Because substantial evidence supported the factual findings underlying the

decision to reopen, and because Yates offers no reasons to reject the ALJ’s legal 

conclusions, we reject Yates’s argument that there was error in the decision to 

reopen.

III.

Yates also argues that ALJ Orr improperly considered Dr. McClure’s

medical testimony from the 2007 hearing in which Yates was unrepresented, 

and that ALJ Orr improperly weighed that testimony much more heavily than 

the other medical evidence. There is, however, “an absolute right to subpoena 

a reporting physician.” Lidy v. Sullivan, 911 F.2d 1075, 1077 (5th Cir. 1990). 

Yates thus had the opportunity to subpoena Dr. McClure for the 2011 hearing 

at which he was represented by counsel. As ALJ Orr noted, his failure to do so 

forfeited any objection.

Furthermore, “the ALJ ‘is entitled to determine the credibility of medical 

experts as well as lay witnesses and weigh their opinions accordingly.’” 

Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir.1994) (quoting Scott v. Heckler, 

770 F.2d 482, 485 (5th Cir. 1985)). ALJ Orr thus did not err in weighing Dr. 

McClure’s testimony more heavily than the other medical evidence. 

IV.

Finally, Yates asserts that ALJ Orr’s “behavior indicates a clear and 

substantial bias” because he laughed during the hearing, expressed his 

surprise that Yates has been receiving benefits since the 2003 hearing, and 

noted his disapproval of ALJ Herbert’s reasoning. “‘[J]udicial remarks during 

the course of a trial that are critical or disapproving of, or even hostile to 

counsel, the parties, or their cases, ordinarily do not support a bias or partiality 

challenge’ unless ‘they reveal such a high degree of favoritism or antagonism 

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as to make fair judgment impossible.’” Brown, 192 F.3d at 500 (quoting Liteky 

v. United States, 510 U.S. 540, 555 (1994)). As the magistrate judge correctly 

noted, none of the behaviors Yates points to rises to the level of impermissible

bias. Compare id. (finding no bias despite ALJ’s statement that the treating 

physician “was attempting to help the claimant get benefits because of his 

relationship with her”); see also Liteky, 510 U.S. at 555–56 (stating that 

“expressions of impatience, dissatisfaction, annoyance, and even anger” do not 

establish bias). 

V.

We therefore AFFIRM the district court’s decision affirming the decision 

of the Commissioner and dismissing Yates’s complaint.

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