Gibb v. Commissioner of Social Security , 420 F. App'x 767 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 11 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CURTIS GIBB, No. 10-35453
Plaintiff - Appellant, D.C. No. 3:09-cv-00533-HA
v.
MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, Senior District Judge, Presiding
Submitted March 9, 2011**
Portland, Oregon
Before: D.W. NELSON, THOMAS, and GRABER, Circuit Judges.
Curtis Gibb appeals the district court’s dismissal of his social security
appeal for lack of subject matter jurisdiction. We affirm. Because the parties are
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
familiar with the factual and procedural history of this case, we need not recount it
here.
I
The district court properly dismissed Gibb’s complaint for judicial review.
The Social Security Act confers federal jurisdiction to review only “final
decisions” of the Commissioner. Klemm v. Astrue, 543 F.3d 1139, 1144 (9th Cir.
2008) (citing 42 U.S.C. § 405(g)). An agency decision not to re-open a previously
adjudicated claim for benefits is discretionary and therefore not considered “final”
within the meaning of § 405(g). Krumpelman v. Heckler, 767 F.2d 586, 588 (9th
Cir. 1985). “District courts, therefore, have no jurisdiction to review a refusal to
re-open a claim for disability benefits or a determination that such a claim is res
judicata.” Id.The March 2003 denial of reconsideration became administratively final
and binding when Gibb failed to seek further review. 20 C.F.R. § 404.921; Taylor
v. Heckler, 765 F.2d 872, 876 (9th Cir. 1985). An ALJ may, as here, dismiss a
later request for a hearing as res judicata, i.e. where the agency has “made a
previous determination or decision . . . on the same facts and on the same issue or
issues, and this previous determination or decision has become final by either
administrative or judicial action.” 20 C.F.R. § 404.957(c)(1). Res judicata “may
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apply even though the claimant has never had a hearing, where [he] has failed to
pursue his administrative appeals and no new facts are presented in the subsequent
application.” Thompson v. Schweiker, 665 F.2d 936, 940 (9th Cir. 1982).
The Sanders exception to jurisdictional limitations “where the Secretary’s
denial of a petition to reopen is challenged on constitutional grounds,” Califano v.
Sanders, 430 U.S. 99, 109 (1977), does not apply here. Gibb had a meaningful
opportunity to present his case to the agency, and the record does not show any
colorable due process violations. Therefore, the Sanders exception does not apply.
Udd v. Massanari, 245 F.3d 1096, 1101 (9th Cir. 2001).
II
The district court did not err in declining to grant a remand under “sentence
six” of 42 U.S.C. § 405(g).1 To warrant such a remand, Gibb must show that the
additional evidence is “material” to his disability, and that he had “good cause” for
not producing it earlier. Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001).
1
“Sentence six” of § 405(g) provides, in relevant part: “The court may . . . at
any time order additional evidence to be taken before the Commissioner . . . but
only upon a showing that there is new evidence which is material and that there is
good cause for the failure to incorporate such evidence into the record in a prior
proceeding . . . .” 42 U.S.C. § 405(g) (emphasis added). Thus, a so-called
“sentence-six remand” may be ordered “where new, material evidence is adduced
that was for good cause not presented before the agency.” Shalala v. Schaefer, 509
U.S. 292, 297 n.2 (1993) (citing 42 U.S.C. § 405(g) (sentence six)).
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Even if we assume, arguendo, that the new evidence was material, Gibb did
not show good cause for his delay in producing it. “A claimant does not meet the
good cause requirement by merely obtaining a more favorable report once his . . .
claim has been denied.” Id. at 463. Gibb failed to show that he could not have
obtained the information earlier. See Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir.
1985) (finding no “good cause” where claimant submitted medical report prepared
after hearing, but gave no reason for not soliciting the information sooner). The
district court did not abuse its discretion in declining to order a remand.
AFFIRMED.
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