* Effective March 31, 1995, the functions of the Secr etary of Health and

Human Services in social security cases were transf erred to the Commissioner of Social Security. P.L. No. 103-296. Although the C ommissioner has been substituted for the Secretary in the caption, in th e text we continue to refer to the Secretary because she was the appropriate party at the time of the underlying decision.

** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 2 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

FLORENCE J. GILBERT,

Plaintiff-Appellant,

v. SHIRLEY S. CHATER, Commissioner of Social Security, *

Defendant-Appellee. No. 96-1405 (D.C. No. 93-B-1703) (D. Colo.)

ORDER AND JUDGMENT **

Before BALDOCK, EBEL, and LUCERO, Circuit Judges.1 After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.

-2- Claimant Florence J. Gilbert appeals from a decisio n 1 of the district court affirming the Secretary’s determination that she wa s entitled to a period of disability commencing November 30, 1984, and to dis ability insurance benefits and further entitled to benefits under Title XVI, b ut refusing to reopen her 1985 claim for benefits under Title II. At issue is whe ther claimant’s 1985 application was solely a claim for disability insurance benefit s or if it also included a claim for widow disability benefits that has never been a dministered. The district court held that claimant had never filed for widow disabi lity benefits and rejected claimant’s contention that such a claim remained pe nding in administrative limbo. Claimant argues that the district court erred in fi nding that her 1985 claim was not a claim for widow’s benefits, that res judi cata was improperly applied to deny her past widow’s benefits, that she was entitl ed to have her 1985 claim reopened under several different theories, and that42 U.S.C. § 402 or 42 U.S.C. § 405 should allow her relief because she had receive d incomplete information about whether to appeal her 1986 reconsideration de nial. We review to determine whether the Secretary’s decision was supported by s ubstantial evidence and to2 Widow’s disability benefits are among the benefits provided in Title II of

the Social Security Act. See Davidson v. Secretary of Health & Human Servs. , 912 F.2d 1246, 1249 (10th Cir. 1990). -3- consider whether the Secretary applied the proper l egal standard, see Brown v. Sullivan , 912 F.2d 1194, 1196 (10th Cir. 1990). We affirm. In 1985, claimant filed an application under Title II and Title XVIII requesting “all insurance benefits for which I am e ligible.” R. Vol. I at 295. 2 That claim was denied both initially in October 198 5, and upon reconsideration. Claimant did not appeal further. Claimant filed a second application in 1991. This time, claimant prevailed on her claim for disability insurance benefits but failed to convince the ALJ to reopen her 1985 claim which she contends was one fo r widow’s benefits. The ALJ refused to reopen based on 20 C.F.R. § 404.988 which limits the time in which an application may be reopened for good cause to the four-year period after the date of the initial determination. See 20 C.F.R. 404.988(b). Because a decision not to reopen a case is not a fi nal decision of the Secretary made after a hearing, it is not reviewabl e by federal courts. See Califano v. Sanders , 430 U.S. 99, 108 (1977). This bar to review exis ts “‘whether or not the [Social Security Administration] held a hearing on whether good cause for the late filing was shown.’” Dozier v. Bowen , 891 F.2d 769, 771 (10th Cir. 1989) (quoting White v. Schweiker , 725 F.2d 91, 93 (10th Cir. 1984)). The only-4-

exception to this bar on judicial review is when th e refusal to reopen is challenged on constitutional grounds, an instance the Supreme Court has described as “rare.” See Califano , 430 U.S. at 109. Claimant argues that she comes witihin the exceptio n because (1) the 1985 application was an application for widow’s benefits which has never been denied and, therefore, remains pending and (2) the ALJ’s r efusal to reopen her 1985 application denied her due process. With regard to claimant’s first argument, we agree with the Secretary that, under any scenario, claimant cannot prevail. If th e district court is correct and claimant did not file in 1985 for widow’s benefits, she cannot prevail. A claimant must file for benefits in order to receive them. A lternately, if claimant filed a claim for widow’s benefits in 1985, it was denied b y virtue of the notices claimant received. The 1985 application applied for all Title II benef its to which claimant was eligible. Because Title II encompasses widow’s ben efits, the application necessarily includes those benefits. The denial of the 1985 application states “you are not entitled to any other benefits based o n this application,” R. Vol. I at 313, thus it denies all benefits to which claimant was entitled, including widow’s benefits. The reconsideration disability report cl early names claimant’s deceased-5-

husband as the wage earner and notes that the Title II claim is for both disability insurance benefits and disabled widow’s benefits. The initial notice denying claimant’s 1985 applicat ion states: “If you applied for other benefits, you will receive a separate notice when a decision is made on that claim(s).” R. Vol. I at 313. Claiman t points to this language to argue that the denial notice she received denies on ly disability insurance benefits and not widow’s benefits, and that she could reason ably have expected to receive a separate notice denying her widow’s claim. Howev er, the entire paragraph reads as follows: In addition, you are not entitled to any other bene fits based on this application. If you applied for other benefits, yo u will receive a separate notice when a decision is made on that cla im(s). Id. at 313. We read this language to mean that, had c laimant filed for other benefits on a different and separate application, s he would have received a separate notice regarding that application. Becaus e the denial notice states that claimant was not entitled to any other benefits bas ed on “this application,” and because “this application” encompasses all benefits to which claimant is entitled under Title II (which title includes both disability insurance and widow disability benefits), the denial of the claim made in “this ap plication” denies both types of3 We see no unfairness to claimant in determining that she had applied for

widow’s benefits in 1985 and had been denied. Clai mant admitted in a prior lawsuit, see Gilbert v. Shalala , 828 F. Supp. 815 (D. Colo. 1993), aff’d , 45 F.3d 1391 (10th Cir. 1995), that she herself thought she was applying for widow’s benefits and that they had been denied. Further, in that case, the district court was obvio usly dealing with a plaintiff who had represented to the court that herwidow’s disability claim had been denied. See Gilbert , 828 F. Supp. at 818 (stating that “[h]er denial n otice explained that to qualify for widow disability bene fits her disability must arise within seven years after the death of her spouse”). -6- disability claims. 3 We do not view the fact that only the “disabilityinsurance benefits” box was checked on the denial notices, as opposed to both the “disability insurance benefits” and the “disabled w idow/widower benefits” boxes, as evidence that the widow’s claim was not administ ered and is still alive. The fact that the district court drew the alternate con clusion and held that claimant had not filed for widow’s benefits in 1985 does notprevent our affirming the district court. We may affirm a decision of the di strict court on a ground not relied on by that court if supported by the record. See Greiss v. Colorado , 841 F.2d 1042, 1047 (10th Cir. 1988). As noted, the ban on judicial review of a refusal t o reopen does not operate to preclude review of a case presenting a colorable constitutional claim. See Nelson v. Secretary of Health & Human Servs. , 927 F.2d 1109, 1111 (10th Cir. 1990). The gist of claimant’s due process argumentseems to be that the plain language of the 1985 reconsideration denial did notsufficiently alert her to the4 Claimant argues that she was told by a Social Secur ity Administration

employee that she could reapply for widow’s benefit s within seven years after the initial denial and receive back benefits. She argu es that, because of this misrepresentation, she is entitled to relief under 42 U.S.C. § 405(b)(3)(A) which provides A failure to timely request review of an initial ad verse determination with respect to an application for any benefit under this subchapter or an adverse determination on reco nsideration of such an initial determination shall not serve as a basis for denial of a subsequent applicationfor any benefit under this subchapter if the applicant demonstrates that the applicant . . . fai led to so request (continued...) -7- need to proceed further with her claim. Claimant f ailed to prevail on this argument in Gilbert v. Shalala , 45 F.3d 1391 (10th Cir. 1995), aff’g 828 F. Supp. 815 (D. Colo. 1993), because she had not relied on the notice in failing to appeal and thus had no standing. See id. at 1394. Claimant is thus collaterally estopped from relitigating this matter. See Allen v. McCurry , 449 U.S. 90, 94 (1980). Claimant next argues that the ALJ erroneously appli ed res judicata principles to her case and that various theories sh ould afford her relief from its operation. We disagree. The ALJ did not resort to res judicata in deciding her claim. Damage to a claimant from res judicata aris es when issues of fact and law determined in a prior action are used to bar a subs equent claim for relief based on the same facts. Here, the ALJ awarded claimant dis ability insurance benefits from her 1991 application based on a November 1984 onset date. The 1985 determination was not used as a basis for denying the 1991 application. 44 (...continued)

such a review acting in good faith reliance upon in correct, incomplete, or misleading information, relating to the consequences of reapplying for benefits in lieu of seeking revie w of an adverse determination, provided by any officer or employee of the Social Security Administration or any State agency acting under section 421 of this title. 42 U.S.C. § 405(b)(3)(A) (emphasis added). Because claimant’s subsequent 1991 application was not denied, this section does not apply to claimant’s case. -8- Because res judicata principles preclude reopening the 1985 application, we are without jurisdiction to review the ALJ’s refusa l to reopen. “Neither the district court nor this court has jurisdiction to r eview the Secretary’s refusal to reopen a claim for disability benefits or determination such claim is res judicata.” Brown , 912 F.2d at 1196. Further, because the ALJ expre ssly refused to reopen the 1985 claim, there can be no de facto reopening as claimant argues. See id. We agree with the district court that 42 U.S.C. § 4 02(j)(5) does not afford relief as that statute specifically applies to persons who fail to apply for benefits because of agency-originated misinformation. Our resolution of this case makes it unnecessary fo r us to address the Secretary’s argument regarding the propriety of the district court’s action in abating the case until administrative remedies had been exhausted.-9-

AFFIRMED.

Entered for the Court

Carlos F. Lucero Circuit Judge