[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

United States Court of Appeals

For the First Circuit

No. 00-1751

HAROLD DUDLEY,

Plaintiff, Appellant,

v.

KENNETH S. APFEL,

COMMISSIONER OF SOCIAL SECURITY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]

Before

 Boudin, Circuit Judge,

Bownes, Senior Circuit Judge,

and Stahl, Circuit Judge.

Francis M. Jackson on brief for appellant.

Jay P. McCloskey, United States Attorney, Charlotte J.

Hardnett, Acting General Counsel, Frank V. Smith, III, Acting

Principal Deputy General Counsel, John M. Sacchetti, Associate

General Counsel for Program Litigation, and Etzion Brand,

Supervisory Attorney, Office of the General Counsel, Social

Security Administration, on brief for appellee.

March 16, 2001
Per Curiam. Appellant Harold Dudley appeals from the

judgment of the district court that it lacked jurisdiction over

his (appellant's) appeal from a final decision of the

Commissioner of Social Security. The Commissioner's final

decision – made by the Appeals Council – was that appellant's

application for disability benefits was barred by res judicata.

In particular, appellant had filed a prior application, which

concerned the same issues and the same time period, and had

failed to seek Appeals Council review of the determination of

the administrative law judge (ALJ) that appellant was not

disabled. Due to appellant's omission, this determination

became final and binding.

It is well-settled that the denial of an application for

disability benefits based on res judicata is not subject to

judicial review. See Torres v. Secretary of Health and Human

Services, 845 F.2d 1136, 1138 (1st Cir. 1988) (per curiam);

Matos v. Secretary of Health, Education and Welfare, 581 F.2d

282, 285-86 (1st Cir. 1978). Appellant nonetheless raises two

arguments in support of finding jurisdiction. His first

argument is that where there has been a reopening of the prior

application, the Commissioner is estopped from invoking res

judicata. This is not availing here because even though the ALJ

had decided that the prior application should be reopened, the
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Appeals Council nullified this decision. See Tobak v. Apfel,

195 F.3d 183 (3rd Cir. 1999). Thus, as the district court

found, there has been no reopening.

Appellant's second argument is based on the exception to the

rule of unreviewability where a claimant raises a "colorable"

constitutional claim regarding an administrative decision based

on res judicata. See Torres, 845 F.2d at 1138; Matos, 581 F.2d

at 286 n.6. A common claim, in this context, is that a

claimant's mental impairment, and lack of legal representation,

prevented him or her from timely pursuing administrative

remedies concerning the claimant's prior application. This is

the claim appellant raises and the district court rejected it as

not "colorable." We agree for essentially the reasons stated in

the recommended decision of the magistrate judge, which the

district judge adopted. We add only the following comments.

First, even assuming that appellant was unrepresented at the

relevant time, he does not dispute the Appeals Council's

description of the 1992-1993 treatment notes from the Eastport

Health Center. According to the Council, these notes did not

mention anything unusual about appellant's mental condition and

thus did not support the conclusion that claimant was mentally

unable to pursue his administrative remedies during this time.

Second, appellant does not point to any medical evidence

concerning the specific effects of his depression on his
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abilities to understand and follow administrative procedures.

That is, appellant cites to no evidence that, for instance, he

was confused, had a thought disorder or poor intellectual

functioning, or was not capable of functioning responsibly.

That Drs. DiTullio and Pasternak concluded that appellant was

"disabled" is not enough, standing alone, to show that appellant

was incapable of comprehending or pursuing his administrative

remedies. Cf. Torres v. Secretary of Health, Education, and

Welfare, 475 F.2d 466, 468-69 (1st Cir. 1973) (remanding to the

Secretary for further proceedings concerning the effect of

claimant's mental impairment on his ability to follow his

administrative remedies, but noting that the finding that

claimant was disabled based on his nerves only meant that

claimant was "occupationally disabled" within the meaning of the

Social Security Act; "one may be so disabled and yet retain the

awareness and mental capacity to understand and pursue one's

rights"). 

Finally, we note that the fact that the Commissioner did not

file the entire administrative record below does not require a

remand in this case. Appellant cites to no authority requiring

such a filing where jurisdiction is contested and the

Commissioner does not file an answer. See 42 U.S.C. § 405(g).

Our comments in Torres are not to the contrary. See 845 F.2d at

1137 n.1. And, although appellant alluded below to the absence
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of the complete record, he never filed a motion specifically

requesting the district court to order the Commissioner to

submit the record. As a result, this objection is not well

taken.

The judgment of the district court is affirmed.