NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

File Name: 19a0239n.06

Case No. 18-3856

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

EARL WAYNE NEWHOUSE,

Plaintiff-Appellant,

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

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ON APPEAL FROM THE UNITED 

STATES DISTRICT COURT FOR 

THE NORTHERN DISTRICT OF 

OHIO

BEFORE: SILER, GIBBONS, and LARSEN, Circuit Judges.

SILER, Circuit Judge. Earl Wayne Newhouse appeals the district court’s judgment 

affirming the Commissioner of Social Security’s final decision denying Newhouse’s request to 

reopen his 2011 application for Disability Insurance Benefits (“DIB”). An Administrative Law 

Judge (“ALJ”) found that Newhouse had failed to meet his burden of proof to reopen, and the 

district court affirmed. We AFFIRM.

I.

Newhouse, proceeding pro se, applied for DIB on April 24, 2001, alleging a disability onset 

date of June 30, 1999. He indicated that he had a 12th-grade education and that he had not been 

in special education classes. 
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Psychologist Wendy Gajarsky stated in 2001 that she saw Newhouse for mental health 

treatment beginning in June 1999. She opined that Newhouse showed average intelligence, but 

faced “an extreme disruption” in his focus and concentration, “disruption in recent memory,” and 

had an “inability to follow through with daily functioning and simple tasks.” She found that 

Newhouse had “almost no ability to withstand any kind of stress and pressure. Stress highly 

exaggerates [his] depression, anxiety, as well as [his] anger.” She considered Newhouse “probably 

capable of managing benefits” and capable of following and understanding instructions, but noted 

his “high tension with authority.” 

Psychologist Dawn Lord stated in 2001 that she had seen Newhouse for mental health 

treatment from October 1999 through February 2001. She opined that Newhouse would not react 

well to the pressures of a work setting, but could follow directions, had adequate orientation, a 

short attention span, and could manage any benefits that may be due.

On July 24, 2001, the Social Security Administration (“SSA”) determined Newhouse was 

disabled as of the claimed date due to affective disorders and anxiety, but eligible only for 

Medicare and not DIB due to an insufficient number of quarters of coverage. The determination 

letter advised Newhouse of the process and timeline to appeal. Newhouse sent the SSA 

approximately seven letters, stating that he couldn’t feed his family or survive on a Medicare card 

and wanted paid benefits, but he did not file a formal appeal.

On September 10, 2012, Newhouse filed a second pro se DIB application with additional 

earnings information. On April 24, 2013, the SSA determined Newhouse was eligible for DIB 

beginning January 1, 2001, and awarded coverage back to August 2011. Represented by counsel, 

Newhouse requested reconsideration, arguing that he was “entitled to benefits further back in 

time.” The SSA denied reconsideration, finding that the regulations did not permit Newhouse to 
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receive retroactive benefits more than twelve months prior to his new application. A hearing was 

held on May 16, 2015.

On June 19, 2015, the ALJ issued a written decision addressing “whether late additions to 

[Newhouse’s] record of covered earnings would result in giving him retroactive Title II cash 

benefits as of January 1, 2001, which is the earliest date last insured when the quarters of coverage 

provided by the late additions are calculated.” The ALJ concluded that reopening was not 

appropriate because Newhouse did not meet his burden of proof to show mental incapacity at the 

time he opted not to appeal the 2001 agency decision. In so finding, the ALJ considered the 

medical evidence from Drs. Gajarsky and Lord that Newhouse could follow directions, had 

adequate orientation and average intelligence, and would be capable of managing any benefits due 

to him.

The Appeals Council declined review, rendering the ALJ’s decision final. Newhouse filed 

an action for judicial review under 42 U.S.C. §§ 405(g), 1383(c)(3), arguing a constitutional claim 

that his mental limitations prevented him from timely pursuing his administrative remedies. The 

district court found the ALJ’s decision supported by substantial evidence and denied relief.

II.

We review a district court’s decision in a Social Security case de novo. Miller v. Comm’r 

of Social Security, 811 F.3d 825, 833 (6th Cir. 2016) (citation omitted). Our review of an ALJ’s 

decision as to whether the claimant is disabled “is limited to whether the ALJ applied the correct 

legal standards and whether the findings of the ALJ are supported by substantial evidence.” 

Blakley v. Comm’r of Social Security, 581 F.3d 399, 405-06 (6th Cir. 2009) (citation omitted); see 

also 42 U.S.C. § 405(g). Thus, we defer to the ALJ’s decision if substantial evidence supports it, 

“even if there is substantial evidence in the record that would have supported an opposite 
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conclusion.” Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). “Where, however, an ALJ fails 

to follow agency rules and regulations, we find a lack of substantial evidence, even where the 

conclusion of the ALJ may be justified based upon the record.” Miller, 811 F.3d at 833 (internal 

quotation marks and citation omitted). 

III.

Under 20 C.F.R. § 404.988, determination more than four years old can only be reopened 

if specific conditions are met, none of which applied to Newhouse’s case. However, as Newhouse 

argued, SSR 91-5P outlines the SSA’s policy to avoid improper application of administrative 

finality when the evidence establishes that “mental capacity prevented [the applicant] from timely 

requesting review of an adverse determination . . . .” To show eligibility under this provision, “a 

claimant . . . presents evidence that mental incapacity” prevented him from making a timely request 

for review. Id. If he provides sufficient evidence to demonstrate such mental incapacity, the “time 

limits in the reopening regulations do not apply . . . .” Id. The ALJ must consider, in relevant part, 

“any mental or physical condition that limits the claimant’s ability to do things for him/herself.” 

Id. 

A decision by the SSA not to reopen a prior decision is unreviewable by the courts absent 

a colorable constitutional claim. See Califano v. Sanders, 430 U.S. 99, 107-08 (1977); Bogle v. 

Sullivan, 998 F.2d 342, 346 (6th Cir. 1993). We have previously found that a colorable 

constitutional claim is established, and judicial review proper, when the claimant’s mental capacity 

prevented him from understanding and pursuing further administrative remedies. Parker v. 

Califano, 644 F.2d 1199, 1203 (6th Cir. 1981); see also Anderson v. Comm’r of Social Security, 

195 F. App’x 366, 369 (6th Cir. 2006) (citation omitted). We have also reiterated SSR 91-5p’s 
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policy that the burden of proof rests on the claimant to demonstrate such incapacity. Anderson, 

195 F. App’x at 369-70. 

Newhouse argues that the ALJ’s decision was not supported by substantial evidence and 

that he lacked the requisite concentration, attention span, short-term memory, and ability to follow 

through on tasks to complete the required application for reconsideration. However, the presence 

of “substantial evidence in the record that would have supported an opposite conclusion,” Key, 

109 F.3d at 273, is not equivalent to a finding that substantial evidence does not support the ALJ’s 

findings. In this case, the ALJ relied on medical evidence in the record that Newhouse could 

follow directions, had adequate orientation and average intelligence, and would be capable of 

managing any benefits due to him. As the government notes, the form to request reconsideration 

is a single page, and is “perhaps less complicated than the original application and other materials 

that he already would have completed to get to [that] point in the application process.” Further, 

Newhouse was able to complete the form with the assistance of his representative in his 2012 

application. Since a “reasonable mind might accept the relevant evidence as adequate to support 

[the ALJ’s] conclusion,” Warner v. Commissioner of Social Security, 375 F.3d 387, 390 (6th Cir. 

2004), the ALJ’s conclusion that Newhouse failed to meet his burden of proving mental incapacity 

is supported by substantial evidence, and thus no colorable constitutional claim exists.

AFFIRMED.