USCA11 Case: 22-13102 Document: 24-1 Date Filed: 08/30/2023 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13102
Non-Argument Calendar
____________________
CATHERINE M. HUNTER,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 5:21-cv-00406-TJC-LLL
____________________
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2 Opinion of the Court 22-13102
Before ROSENBAUM, NEWSOM, and GRANT, Circuit Judges.
PER CURIAM:
Catherine Hunter appeals the district court’s dismissal of her
complaint against the Commissioner of Social Security. See 42
U.S.C. 405(g). After the agency denied Hunter’s claim for disability
benefits, she discovered that certain medical records from her pri-
mary-care physician had not been included in the administrative
record, and she asked the agency to make a new determination on
her claim in light of the new evidence. In response, an administra-
tive law judge (“ALJ”) issued a new partially favorable decision
finding that Hunter had established a closed period of disability.
But the Appeals Council sua sponte vacated the ALJ’s decision and
denied Hunter relief, stating that the original adverse decision was
“administratively final” and could not be reopened.
Hunter requested judicial review of these decisions in the
district court, which dismissed the complaint with prejudice as
barred by claim preclusion. We don’t reach that conclusion be-
cause the agency’s refusal to reopen Hunter’s disability claim is not
subject to judicial review under
42 U.S.C. § 405(g). Accordingly,
we must vacate and remand with instructions to dismiss Hunter’s
complaint for lack of subject-matter jurisdiction.
I.
In April 2010, Hunter applied for a period of disability and
disability-insurance benefits, alleging a disability onset date of April
21, 2007. An ALJ held a hearing and then issued an adverse decision
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22-13102 Opinion of the Court 3
in 2012, finding that Hunter was not under a disability from her
alleged onset date through December 31, 2007, the date Hunter
was last insured under the Social Security Act. The Appeals Coun-
cil denied review.
Hunter sought judicial review, and, ultimately, we affirmed
the agency’s decision in June 2016. After rejecting Hunter’s various
arguments on appeal, we concluded that the “decision finding that
Hunter was not under a disability from the disability onset date
through the date last insured was supported by substantial evi-
dence and was based on proper legal standards.” Hunter v. Comm’r
of Soc. Sec.,
651 F. App’x 958, 962 (11th Cir. 2016).
In late 2015, while the appeal was pending, Hunter filed a
motion to supplement the record on appeal with additional medi-
cal records from her primary-care physician, Dr. Robert Corbett,
dated between 2005 and 2008. Hunter said she had recently discov-
ered that these records, which were material to her disability claim,
had not been included in the administrative record or previously
considered by the agency. The motion was denied. 1
In 2017, after our decision on appeal, Hunter filed a new dis-
ability application and asked the agency to reopen her prior disabil-
ity claim because of “new and material evidence,” namely, Dr. Cor-
bett’s medical records. In January 2020, an ALJ found that the 2012
ALJ decision was “res judicata with respect to the most current
1 See Wilson v. Apfel,
179 F.3d 1276, 1278 (11th Cir. 1999) (stating that reviewing
courts are limited to the record considered by the agency).
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4 Opinion of the Court 22-13102
claim” and that he had “no jurisdiction” to reopen the prior deci-
sion. The Appeals Council granted Hunter’s request for review
and sent the case back to the ALJ for further proceedings on
Hunter’s claim, stating that res judicata did not apply because
Hunter alleged new mental impairments.
In January 2021, following a hearing, the ALJ issued a par-
tially favorable decision finding that Hunter was entitled to a closed
period of disability from April 21, 2007, through January 11, 2010.
Two months later, though, the Appeals Council notified Hunter
that it would be exercising its sua sponte authority to correct legal
errors in the ALJ’s decision and entering its own decision that she
was not entitled to disability benefits.
Then, in June 2021, the Appeals Council vacated the 2021
ALJ decision and issued its own adverse decision finding that
Hunter was not disabled. In the view of the Appeals Council, the
2021 ALJ decision erroneously “found the claimant disabled during
a period when the [agency] had already found the claimant not dis-
abled”—from April 2007 to December 2007. That prior “unfavor-
able determination[]” was binding, the Appeals Council stated, be-
cause Hunter failed to seek reopening of the original decision
within the time limits provided in agency regulations, and she did
not allege fraud or similar fault. See
20 C.F.R. § 404.988 (“Condi-
tions for reopening.”). Accordingly, the Appeals Council con-
cluded that “the prior unfavorable decision from May 10, 2012, was
administratively final for the applicable time period and requires an
unfavorable decision.”
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22-13102 Opinion of the Court 5
Hunter again turned to the federal courts for review. Based
on the recommendation of a magistrate judge, the district court
dismissed Hunter’s complaint as barred by “federal res judicata prin-
ciples” in light of our affirmance of the 2012 ALJ decision denying
her disability claim. The court declined to consider “the issue of
administrative finality.” Hunter now appeals.
II.
After briefing concluded, we asked the parties to address the
district court’s subject-matter jurisdiction. See Univ. of S. Alabama
v. Am. Tobacco Co.,
168 F.3d 405, 409 (11th Cir. 1999) (“[I]t is well
settled that a federal court is obligated to inquire into subject mat-
ter jurisdiction sua sponte whenever it may be lacking.”). In partic-
ular, we requested and received briefing on whether the “refusal to
reopen [Hunter’s] prior application for benefits is subject to judicial
review under
42 U.S.C. § 405(g).” We review that issue de novo.
Sherrod v. Chater,
74 F.3d 243, 245 (11th Cir. 1996).
Judicial review of disability claims is “limited by the Social
Security Act,” which provides jurisdiction “only over the ‘final de-
cision of the Commissioner of Social Security.’” Cash v. Barnhart,
327 F.3d 1252, 1256 (11th Cir. 2003) (quoting
42 U.S.C. § 405(g)).
In general, “district courts do not have jurisdiction over the Com-
missioner’s refusal to reopen a claim,” since a refusal to reopen is
not considered to be “a ‘final decision’ within the meaning of §
405(g).” Id.; see Califano v. Sanders,
430 U.S. 99, 107–09 (1977).
Nevertheless, the Commissioner’s denial of a motion to re-
open is subject to judicial review” in two narrow circumstances: (1)
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6 Opinion of the Court 22-13102
“the merits of the closed disability application are actually reex-
amined”; or (2) “the claimant presents a colorable constitutional
claim.” Hall v. Bowen,
840 F.2d 777, 778 (11th Cir. 1987); see also
Wolfe v. Chater,
86 F.3d 1072, 1078 (11th Cir. 1996).
In applying the first exception, “our aim [has been] to de-
mand compliance with the Secretary’s regulations on reopening.”
Passopulos v. Sullivan,
976 F.2d 642, 647 (11th Cir. 1992). Thus, we
have exercised jurisdiction where ALJs “disregard[ed] the regula-
tions and declare[d] that a reopening ha[d] not occurred when a
reopening ha[d], in fact, occurred.”
Id. To determine if a reopen-
ing occurred, “we must look to what the ALJ and the Appeals
Council did,” since jurisdiction exists “to review only the Commis-
sioner’s final decision.” Cash,
327 F.3d at 1257. If a decision is reo-
pened, “we have jurisdiction to review the prior decision to the ex-
tent that it has been reopened.” Wolfe,
86 F.3d at 1079.
As to the second exception, we have stated that, ordinarily,
“[a] constitutional claim relating to the first [disability] application
is insufficient to confer subject matter jurisdiction.” Cherry v. Heck-
ler,
760 F.2d 1186, 1190 n.4 (11th Cir. 1985). Rather, “the constitu-
tional issue must concern the proceeding at which the decision not
to reopen was made.”
Id. Nevertheless, we have recognized a col-
orable constitutional claim where a claimant alleged that his men-
tal impairments, “coupled with his pro se status, prevented him
from proceeding from one administrative level to another in a
timely fashion” on the original claim. Sherrod,
74 F.3d at 246
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22-13102 Opinion of the Court 7
(describing the holding of Elchediak v. Heckler,
750 F.2d 892, 895
(11th Cir. 1985)).
Here, the Commissioner’s June 2021 decision denying
Hunter’s request to reopen or revive her disability claim is not sub-
ject to judicial review under § 405(g). We ordinarily lack jurisdic-
tion over such a refusal to reopen. See Cash,
327 F.3d at 1256. And
our review of the record in this case does not support the applica-
tion of either exception to that general rule.
First, the record does not show that the Commissioner “ac-
tually reexamined” the merits of the closed disability application in
a way that matters for our jurisdiction. See Hall,
840 F.2d at 778.
The agency, to be sure, did more than simply deny reopening. Af-
ter an ALJ in 2020 determined that the original denial of Hunter’s
claim was final and could not be reopened, the Appeals Council
stepped in and ordered further proceedings on Hunter’s mental im-
pairments, resulting in an ALJ’s partially favorable decision in 2021.
But then the Appeals Council seemingly reversed itself several
months later, vacating the 2021 ALJ decision and echoing the rea-
soning and conclusions of the 2020 ALJ decision.
Although Hunter may have reason to feel disappointed, we
cannot say that these events affect the jurisdictional issue. For
starters, this is not a case where a claimant was adversely affected
by reopening in “disregard [of] the regulations.” Passopulos,
976
F.2d at 647. Any reopening that occurred here was in Hunter’s fa-
vor. And neither the Appeals Council nor an ALJ ever found that
Hunter met the ordinary conditions for reopening, as specified in
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8 Opinion of the Court 22-13102
the regulations. See
id. (describing the “aim” as “demand[ing] com-
pliance with the . . . regulations on reopening”);
20 C.F.R. § 404.988
(“Conditions for reopening.”).
More importantly, despite the misfires along the way, the
agency’s final decision on reopening, by the Appeals Council in
June 2021, was a square and straightforward denial that reaffirmed
the finality of the original 2012 ALJ decision. So while we “must
look to what the ALJ[s] and the Appeals Council did” with respect
to Hunter’s request to reopen, Cash,
327 F.3d at 1257, ultimately
nothing has changed about the agency’s adjudication of Hunter’s
disability claim. Accordingly, the exception for de facto reopening
does not apply.
Second, Hunter has not raised a colorable constitutional
claim. Hunter asserts that she was denied due process during the
original proceeding on her disability claim because of her counsel’s
alleged ineffectiveness and the agency’s failure to compile her com-
plete medical history for the relevant period.
But“[a] constitutional claim relating to the first [disability]
application is insufficient to confer subject matter jurisdiction.”
Cherry,
760 F.2d at 1190 n.4. And Hunter does not identify any spe-
cific issue “concern[ing] the proceeding at which the decision not
to reopen was made,” which we would have jurisdiction to review.
Id. Nor does Hunter present a colorable claim based on Elchediak,
since she was represented by counsel during the administrative and
district-court proceedings on her original application. See Sherrod,
74 F.3d at 246 (concluding a constitutional claim based on Elchediak
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22-13102 Opinion of the Court 9
failed where the claimant was “assisted by legal counsel who un-
derstands the administrative process”).
For these reasons, we must conclude that the federal courts
lack jurisdiction under § 405(g) to review the Commissioner’s de-
nial of reopening in this case. We therefore vacate the district
court’s order dismissing Hunter’s complaint with prejudice as
barred by claim preclusion, and we remand with instructions to
dismiss the case for lack of subject-matter jurisdiction.
VACATED and REMANDED, with instructions.
