* Pursuant to Local Rule 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opinion should not be published and is not precedent except under the limited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 Local Rule 47.5.4.

 

1 Harden's name is misspelled as "Hardin" in the caption of this case.

The correct spelling, "Harden," will be used in the text of this opinion.

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_______________

No. 95-60557

(Summary Calendar)

_______________

EARNESTINE HARDIN,

Plaintiff-Appellant,

versus

SHIRLEY S CHATER, COMMISSIONER OF

SOCIAL SECURITY,

Defendant-Appellee.

_______________________________________________

Appeal from the United States District Court

For the Western District of Texas

(3:94-CV-601)

_______________________________________________

July 15, 1996

Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Plaintiff Earnestine Harden1 appeals the district court's

judgment dismissing her claim for judicial review of the decision

of the Commissioner of Social Security ("Commissioner") denying

Harden's claim for disability benefits. We affirm.
-2-

Harden filed an application for disability benefits in 1986,

alleging that she became disabled in 1986 and that her disability

prevented gainful employment. After a hearing, an administrative

law judge ("ALJ") found that Harden was not disabled and denied her

claim. Harden filed a second application for disability benefits

in 1990, alleging that she became disabled in 1990. After a

hearing, an ALJ once again found that Harden was not disabled and

denied her claim. Harden filed a motion for reconsideration, which

was denied. Harden filed a third application for disability

benefits in 1992, alleging that she became disabled in 1985. After

a hearing, an ALJ for a third time found that Harden was not

disabled. This time, Harden filed a request for review of the

ALJ's decision with the Appeals Council of the Social Security

Administration. The Appeals Council vacated the ALJ's decision and

remanded to the ALJ, in part in order for the ALJ to consider the

applicability of res judicata. On remand, the ALJ denied Harden's

request for a hearing and issued an order dismissing Harden's

application on res judicata grounds, finding that the question of

whether Harden was disabled in 1985 was foreclosed by prior

decisions finding that she was not disabled in 1986 or 1990.

Harden again filed a request for review of the ALJ's decision with

the Appeals Council, but this request was denied. Harden then

filed suit in federal district court, seeking judicial review of

the denial of her third application for disability benefits. The

Commissioner filed a motion to dismiss for lack of jurisdiction,
-3-

which the district court granted. Harden filed a timely notice of

appeal.

Harden argues that the district court erred when it granted

the Commissioner's motion to dismiss for lack of jurisdiction.

Subject matter jurisdiction is an issue of law, which we review de

novo. Decell & Assocs. v. Federal Deposit Ins. Corp., 36 F.3d 464,

467 (5th Cir. 1994), cert. denied, ___ U.S. ___, 115 S. Ct. 2275,

132 L. Ed. 2d 279 (1995). Federal courts have jurisdiction to

review an administrative determination regarding a claim for social

security disability benefits (1) if such a determination is a

"final determination . . . made after a hearing," 42 U.S.C.

§ 405(g); or (2) if the claimant makes a colorable challenge to the

determination on constitutional grounds. Califano v. Sanders, 430

U.S. 99, 108, 97 S. Ct. 980, 986, 51 L. Ed. 2d 192 (1977).

Harden's third application for disability benefits was

dismissed by the ALJ on res judicata grounds. Harden argues that

this application should be construed as a motion to reopen her

second application for benefits, and thus that the ALJ's order

should be construed as the denial of a motion to reopen a prior

determination. Regardless of how the ALJ's order is characterized,

we find that neither the ALJ's order of dismissal nor the Appeals

Council's denial of Harden's request for review constitutes a

"final determination . . . made after a hearing." 42 U.S.C.

§ 405(g); see Brandyburg v. Sullivan, 959 F.2d 555, 558 (5th Cir.
-4-

1992) (noting that a decision not to reopen a final prior

determination is not a "final determination made after a hearing"

because no hearing was required); Robertson v. Bowen, 803 F.2d 808,

810 (5th Cir. 1986) (noting that a res judicata determination is

not a "final determination made after a hearing" because no hearing

was required).

Harden also alleges that the ALJ's dismissal of her third

application for benefits violated her Fifth Amendment due process

rights. Although we have jurisdiction to review colorable

constitutional claims by disability benefits claimants, Torres v.

Shalala, 48 F.3d 887, 890 (5th Cir. 1995), mere conclusory

allegations that a claimant's constitutional rights were violated

will not, without more, establish a "colorable" claim. Robertson,

803 F.2d at 810. We find that Harden's constitutional arguments

are the types of conclusory allegations that do not constitute a

"colorable" constitutional claim.

Accordingly, we hold that the district court did not err when

it granted the Commissioner's motion to dismiss for lack of

jurisdiction. We AFFIRM.