* 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.

1

“Any 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 after the mailing to him

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-41089

Summary Calendar

KRISTIE D. DECKARD

Plaintiff-Appellant

v.

MICHAEL J. ASTRUE, Commissioner of Social Security

Defendant-Appellee 

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 6:06-cv-28

Before HIGGINBOTHAM, DENNIS, and HAYNES, Circuit Judges.

PER CURIAM:*

Kristie Deckard appeals from a decision of the United States District

Court dismissing her motion to reopen a decision of the Social Security

Administration and to change her disability onset date to that submitted in her

first filing, asserting jurisdiction under 42 U.S.C. § 405(g).1 On February 24,

United States Court of Appeals

Fifth Circuit

F I L E D

August 21, 2008

Charles R. Fulbruge III

Clerk
No. 07-41089

of notice of such decision or within such further time as the Commissioner of Social Security

may allow. . . .” 

2 859 F.2d 319 (4th Cir. 1988). 

3 858 F.2d 951 (4th Cir. 1988). 

2

1994, Plaintiff’s mother filed an application for disability insurance benefits and

social security income payments with the Social Security Administration, urging

that Plaintiff was mentally incompetent. The Social Security Administration

denied the application in July 1994. Plaintiff did not appeal this denial. In

September 2002, now represented by counsel, Plaintiff filed another application

for disability insurance benefits, maintaining that she was unable to work since

May 31, 1994, due to a condition called hydrocephalus. The Social Security

Administration denied this claim and denied it again on reconsideration.

Plaintiff then applied for a hearing before an administrative law judge. In

December 2004, the ALJ found that Plaintiff had an organic mental disorder

that caused a presumptive disability and that she should receive benefits for a

period beginning on May 31, 1994. Plaintiff then requested review by the

Appeals Council, requesting a reopening and review of the Social Security

Administration’s earlier denial of her February 24, 1994, application for

disability insurance benefits and social security income. In November 2005, the

Appeals Council found no basis for review ofthat decision and declined to reopen

the case. Plaintiff then appealed to the United States District Court for the

Eastern District of Texas. The district court referred the matter to a magistrate

judge. Adopting the judge’s recommendation, the district court ordered that the

action be dismissed.

On appeal, Plaintiff, citing to the Fourth Circuit decisions of Culbertson

v. Secretary of Health and Human Services2 and Young v. Bowen,

3 urges that she

is “entitled to a disability onset date that she has submitted in this case

concerning her first protective filing dates for benefits” – that she should receive
No. 07-41089

4 The magistrate judge concluded in a report, “Courts lack jurisdiction to review SSA’s

refusal to reopen a prior decision absent a colorable constitutional claim. Plaintiff does not

assert that this Court has jurisdiction based on a colorable constitutional claim, and Plaintiff’s

contention, therefore, lacks merit.” The district court adopted the magistrate’s report and

recommendation and dismissed Plaintiff’s case. 

3

payment for a disability commencing on February 24, 1994, as opposed to May

31, 1994. She alleges that the court’s refusal to reopen its initial denial of

disability benefits violates her due process rights because she lacked the mental

competence to appeal from the first proceeding and did not then have counsel.

We are persuaded that the district court did not err in finding that

Plaintiff failed to raise a colorable constitutional claim below – due process or

otherwise – and in holding that it lacked jurisdiction to hear her claim.4

Plaintiff’s complaint stated, 

Plaintiff is disabled and is entitled to a disability onset date that

she has submitted in this case concerning her first protective filing

date for benefits . . . . Plaintiff prays that this Court: 1) find that

plaintiff is entitled to disability benefits under the provisions of the

Social Security Actfrom the first protective filing date for disability

to the present; or 2) remand the case for a further hearing; or 3)

award attorney’s fees under the Equal Access to Justice Act . . .

and 4) order such other and further relief as the Court deems just

and proper.

In an “Exhibit A” attached to her complaint, she referenced several

statutes and regulations and then alleged, 

Claimant . . . lacked the mental competence for appeal due to

memory deficit due to hydrocephalus, severe memory impairment

due to cognitive disorder. Claimant should be paid accordingly to

her first protective filing date of February 03, 1994 due to the above

statu[t]e/regulation/rulings.

This language is insufficient to raise a constitutional claim, and the

district courtthus lacked jurisdiction to hear Plaintiff’s appeal to reopen her first
No. 07-41089

5See Califano v. Sanders, 430 U.S. 99, 109 (1977) (finding no subject matter jurisdiction

where a petition to reopen is not challenged on constitutional grounds). 

6 See Leverette v. Louisville Ladder Co., 183 F.3d 339, 342 (5th Cir.1999) (“This Court

will not consider an issue that a party fails to raise in the district court absent extraordinary

circumstances.”). 

4

administrative case.5 To the extent that Plaintiff raises issues beyond her

request to reopen the first case, urging that “whether designated as res judicata

or administrative finality, the [first] decision must be overturned” because she

lacked the mental capacity to contest the denial of benefits when the decision

occurred, she did not raise these claims below, and we do not address them

here.6

AFFIRMED.