At page 738 Rebutting presumption of notice receipt in disability claims48 citing cases“merely alleging a constitutional violation or making a conclusory allegation is not enough; the claimant must have a colorable constitutional claim.”
- McKenzie v. Kijakazi, No. 1:22-cv-04029 (E.D.N.Y. Oct. 9, 2024).(The availability of judicial review does not depend upon the receipt of notice by the claimant’s attorney or 1 Construing the record most favorably to the plaintiff as the nonmoving party, the Court accepts that McKenz…)
- Hernandez, No. 1:25-cv-01477 (W.D. Tex. July 29, 2026).Congress has limited judicial review of the SSA’s final decision under the Social Security Act to two inquiries: (1) whether substantial evidence supports the SSA’s decision; and (2) whether the SSA correctly applied the relevant legal sta…
- Malubag, No. 1:25-cv-00808 (W.D. Tex. June 22, 2026).Congress has limited judicial review of the Commissioner’s final decision under the Social Security Act to two inquiries: (1) whether substantial evidence supports the Commissioner’s decision; and (2) whether the Commissioner correctly app…
- Aaron Saxon Props., LLC v. Fed. Emergency Mgmt. Agency, No. 3:25-cv-00239 (M.D. La. Mar. 19, 2026).(claimant’s sworn word that he did not receive notice was insufficient to rebut presumption)
- DeShay v. Comm'r of Soc. Sec., No. 1:24-cv-01037 (W.D. Tex. June 24, 2025).Congress has limited judicial review of the Commissioner’s final decision under the Social Security Act to two inquiries: (1) whether substantial evidence supports the Commissioner’s decision; and (2) whether the Commissioner correctly app…
- Camacho v. O'Malley, No. 7:24-cv-00249 (S.D. Tex. June 9, 2025).Tex. Sept. 11, 2023) (citing Kinash v. Callahan, 129 F.3d 736, 738 (Sth Cir. 1997) (per curiam)).
- Wilson v. Comm'r of Soc. Sec., No. 1:24-cv-00537 (W.D. Tex. Mar. 28, 2025).Congress has limited judicial review of the Commissioner’s final decision under the Social Security Act to two inquiries: (1) whether substantial evidence supports the Commissioner’s decision; and (2) whether the Commissioner correctly app…
- Gatson v. O'Malley, No. 3:24-cv-00266 (N.D. Tex. Aug. 13, 2024).Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997).
- Williams v. Comm'r, Soc. Sec. Admin., No. 3:23-cv-02887 (N.D. Tex. July 9, 2024).Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997).
- Karic v. Comm'r, Soc. Sec. Admin., No. 3:24-cv-00092 (N.D. Tex. May 14, 2024).Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997).
Show 38 more citing cases
- McDaniel v. Comm'r, Soc. Sec. Admin., No. 4:23-cv-01091 (N.D. Tex. Feb. 22, 2024).Kinash v. Callahan, 129 F.3d 736, 738 (Sth Cir. 1997), To determine whether substantial evidence of disability exists, the court must consider four elements of proof: (1) objective medical facts; (2) diagnoses and opinions of treating and…
- Bednorz v. Comm'r of Soc. Sec., No. 7:22-cv-00111, 2023 WL 5846804 (W.D. Tex. Sept. 11, 2023).P. 72(b)(3). 10 28 U.S.C. § 636 (b)(1)(C). 11 42 U.S.C. § 405 (g). 12 Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997). 13 Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995). 14 Id. at 174 . 15 Id. contains substantial evidence to s…
- Garner v. Comm'r of Soc. Sec., No. 1:22-cv-00563 (W.D. Tex. Feb. 13, 2023).Congress has limited judicial review of the Commissioner’s final decision under the Social Security Act to two inquiries: (1) whether substantial evidence supports the Commissioner’s decision; and (2) whether the Commissioner correctly app…
- Johnson v. Kijakazi, No. 6:20-cv-00845 (W.D. Tex. Jan. 17, 2023).Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997).
- Southard v. Kijakazi, No. 1:21-cv-00691 (W.D. Tex. Apr. 27, 2022).Congress has limited judicial review of the Commissioner’s final decision under the Social Security Act to two inquiries: (1) whether substantial evidence supports the Commissioner’s decision; and (2) whether the Commissioner correctly app…
- Hawkins v. Comm'r of Soc. Sec., No. 1:20-cv-00889 (W.D. Tex. Oct. 21, 2021).Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997).
- Hodge v. Comm'r of Soc. Sec., No. 1:20-cv-00742 (W.D. Tex. Aug. 25, 2021).Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997).
- Murray v. Comm'r of Soc. Sec., No. 1:20-cv-00800 (W.D. Tex. Aug. 23, 2021).Salmond v. Berryhill, 892 F.3d 812, 816-17 (5th Cir. 2018); Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997).
- Pavel v. Saul, No. 1:19-cv-00620, 2020 WL 4364226 (W.D. Tex. July 30, 2020).Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997).
- Hemmingson v. Saul, No. 1:19-cv-00693 (W.D. Tex. Jan. 13, 2020).Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997).
- King v. Comm'r of Soc. Sec., No. 1:18-cv-00581 (W.D. Tex. Aug. 28, 2019).Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997).
- Bean v. Vilsack, No. 2017-0140 (D.D.C. June 27, 2018).publishedInc., 171 F.3d 1197 , 1202 (9th Cir. 1999); Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997)).
- Dianne Weeks v. Nancy Berryhill, 694 F. App'x 340 (5th Cir. 2017).unpublished“Merely alleging a constitutional violation or making a conclusory allegation is not enough; the claimant must have a colorable constitutional claim.” Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997).
- Aristille Collins v. Carolyn Colvin, 645 F. App'x 305 (5th Cir. 2016).unpublished“Merely alleging a constitutional violation or making a conclusory allegation is not enough; the claimant must have a colorable constitutional claim.” Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir.1997) (citing Torres v. Shalala, 48 F.3d…
- Perot v. United States Dep't of Health & Human Servs., 304 F. App'x 245 (5th Cir. 2008).unpublished(interpreting an analogous regulation also promulgated under 42 U.S.C. § 405 (g))
- Dominguez v. Astrue, 286 F. App'x 182 (5th Cir. 2008).unpublishedSTANDARD OF REVIEW This court’s “review of the Commissioner’s decision is limited to determining whether that decision is supported by substantial evidence and whether the Commissioner has employed the correct legal standards.” Kinash v. C…
- Smith v. Astrue, 278 F. App'x 395 (5th Cir. 2008).unpublishedSTANDARD OF REVIEW This court’s “review of the Commissioner’s decision is limited to determining whether that decision is supported by substantial evidence and whether the Commissioner has employed the correct legal standards.” Kinash v. C…
- Veasey v. Crim. Dist. Court No. 2, 272 F. App'x 410 (5th Cir. 2008).unpublishedKinash v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997).
- Chapman v. Arlington Hous. Auth., 145 F. App'x 496 (5th Cir. 2005).unpublishedKinash v. Callahan, 129 F.3d 736, 738 (5th Cir.1997). 2.
- Smith v. Barnhart, 338 F. Supp. 2d 761 (S.D. Tex. 2004).publishedNo findings of fact or decision of the Com *764 missioner of Social Security shall be revieived by any person, tribunal, or governmental agency except as herein provided:... 42 U.S.C. § 405 (g), (h) (emphasis added); see also 20 C.F.R. § 4…
- Barfield v. Barnhart, 285 F. Supp. 2d 827 (S.D. Tex. 2002).publishedAny finding that there is no substantial evidence to support the Commissioner’s determination is appropriate only if no credible evidentia-ry choices or medical findings exist to support the decision, Harris v. Apfel, 209 F.3d 413, 417 (5t…
- Sambula v. Barnhart, 285 F. Supp. 2d 815 (S.D. Tex. 2002).publishedId.; see also Randall v. Sullivan, 956 F.2d 105, 113 , reh. denied (5th Cir.1992); and, any finding that there is no substantial evidence to support the Commissioner’s determination is appropriate only if no credible evidentiary choices or…
- Donner v. Barnhart, 285 F. Supp. 2d 800 (S.D. Tex. 2002).publishedId.; see also Randall v. Sullivan, 956 F.2d 105, 113 , reh. denied (5th Cir.1992); and, any finding that there is no substantial evidence to support the Commissioner’s determination is appropriate only if no credible evidentiary choices or…
- Scott v. Fiesta Auto Ctr., No. 00-50943 (5th Cir. Sept. 7, 2001).unpublishedKinash v. Callahan, 129 F.3d 736, 738 (5th Cir. 1997).
- Carr v. Apfel, 133 F. Supp. 2d 476 (N.D. Tex. 2001).publishedKinash v. Callahan, 129 F.3d 736, 738 (5th Cir.1997) (citing Ripley v. Chater, 67 F.3d 552, 555 (5th Cir.1995)).
- Hall v. Texas Comm'n on Law Enf't, 685 F. App'x 337 (5th Cir. 2017).unpublishedSee Kinash v. Callahan, 129 F.3d 736, 738 (6th Cir. 1997).
- Clifton Brumley v. Brad Livingston, 459 F. App'x 470 (5th Cir. 2012).unpublishedSee Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir.1997); Riley, 828 F.2d at 307 .
- Holli Lundahl v. Albert Hawkins, 407 F. App'x 777 (5th Cir. 2011).unpublishedSee Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir.1997); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993).
- Miller v. Wathen, 294 F. App'x 906 (5th Cir. 2008).unpublishedSee Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir.1997).
- Irby v. Wackenhut Corrtl, 278 F. App'x 315 (5th Cir. 2008).unpublishedSee Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir.1997).
- Cornett v. Astrue, 261 F. App'x 644 (5th Cir. 2008).unpublishedSee Kinash v. Callahan, 129 F.3d 736, 738 (5th Cir.1997).
- Rogers v. Barnhart, 365 F. Supp. 2d 803 (S.D. Tex. 2004).published See id. at Exh. 2.
- Ellis v. City of Garland, No. 99-10906 (5th Cir. Apr. 12, 2000).unpublished
- Ellis v. City of Carrollton, No. 99-10766 (5th Cir. Jan. 24, 2004).unpublished
- Lepre v. Dep't of Labor, 275 F.3d 59 (D.C. Cir. 2001).published
- Pettway ex rel. Pettway v. Barnhart, 233 F. Supp. 2d 1354 (S.D. Ala. 2002).published
- Ducusin v. Comm'r of Soc. Sec., 650 F. Supp. 2d 76 (D.D.C. 2009).published
- Ducusin v. Comm'r of Soc. Sec., No. 2008-1905 (D.D.C. Sept. 8, 2009).published
At page 739 “in exceptional circumstances, we may, in the interests of the justice, review an issue that was not raised in the district court.”2 citing cases
- Vaught v. Astrue, 271 F. App'x 452 (5th Cir. 2008).unpublished(The record reflects that the Commissioner considered both of the agencies findings and the evidence underlying each. The Commissioner chose to disagree with those findings. This alone is not reversible error.)
- Barnes v. Barnhart, No. 02-50565 (5th Cir. Jan. 6, 2003).unpublished
Other citing cases
- Noah S. Bunker v. Tracy D. Strandhagen, No. 03-14-00510-CV (Tex. App.—Austin Feb. 23, 2015).published
- RLB Contracting, Inc. v. Butler, 773 F.3d 596 (5th Cir. 2014).published
- Triumph v. Holder, 314 F. App'x 719 (5th Cir. 2009).unpublished
- Crosby v. Orthalliance New Image, 552 F.3d 413 (5th Cir. 2008).published
- In re Oca, Inc., 552 F.3d 413 (5th Cir. 2008).published
- Rowsey v. Epps, 180 F. App'x 536 (5th Cir. 2006).unpublished
- Welch v. Barnhart, 337 F. Supp. 2d 929 (S.D. Tex. 2004).published
v.
John J. Callahan, Commissioner of Social Security
Robert P. Kinash has suffered from ailments affecting his hands, experienced pain and discomfort in his feet, and lost the ability[*738] to hear high frequencies. He filed an initial request for disability benefits under Title II of the Social’ Security Act on May 11, 1981, alleging that he became disabled on June 1, 1979. The Commissioner denied that application, and Kinash did not seek a timely judicial review. On December 20, 1989,’ Ki-nash filed a second application for social security disability benefits. As part of this application, Kinash sought to reopen his previous application. The Commissioner refused to reopen the 1981 application and found that Kinash was not disabled. On appeal, the district court affirmed the denial. Kinash appeals from that decision.
I.
First, Kinash argues that the Commissioner erred in failing to reopen his 1981 disability claim. We cannot review the Commissioner’s refusal to reopen this final determination unless the claimant challenges the Commissioner’s actions in denying the claim based upon constitutional grounds. [1] Merely alleging a constitutional violation or making a conelusory allegation is not enough; the claimant must have a colorable constitutional claim. [2] Kinash argues that he was denied due process because the Commissioner failed to notify him of the final decision denying his 1981 application on appeal. We disagree.
Generally, a claimant has sixty days to seek judicial review of the Commissioner’s final decision. [3] This period runs from the date the claimant received notification of the decision. [4] There is a rebuttable presumption that notice is received five days after it is mailed by the Commissioner to the claimant. [5] Kinash maintains that he did not receive the notice. He also points us to a copy of the notification letter containing an incomplete address for his personal representative. The availability of judicial review does not depend upon the receipt of notice by the claimant’s attorney or personal representative. [6] Therefore, we do not consider the effect of the incomplete address on the notification sent to Kinash’s representative. Our focus is on the notice sent to Kinash, a notice that was sent to his correct address on March 17, 1982. His sworn word that he did not receive this notice is not sufficient, by itself, to rebut the statutory presumption that the notice was received five days after it was sent. [7] We conclude that no due process violation has occurred. The Commissioner’s refusal to reopen the 1981 application is not subject to judicial review;
II.
Next, Kinash argues that the Commissioner erred in finding him not disabled and capable of obtaining gainful employment in the national economy. Our review of the Commissioner’s decision is limited to determining whether that decision is supported by substantial evidence and whether the Commissioner has employed the correct legal standards. [8]
The Commissioner found that Kinash did not suffer from an impairment listed in the social security disability guidelines. At the ALJ’s hearing, Kinash maintained that his condition met or was the medical equivalent of the requirements of § 1.109A or § 1.13 of the listings. [9] Dr. Bell, an orthopedic specialist, testified that Kinash’s condition met neither listing, nor was it the[*739] medical equivalent of either listing. Kinash offered no medical testimony to the contrary. From this, we conclude that there was sufficient evidence for the Commissioner to find that Kinash did not suffer from these listed conditions. [10]
The Commissioner also found that Kinash was capable of obtaining gainful employment in the national economy. We find that there is substantial evidence in the record to support this finding. Clinton Wainwright, a vocational expert, testified that Kinash was qualified to work as a survey supervisor and that Kinash’s impairments would not prevent him from working in this role. In addition, Kinash testified that he was able to participate in many activities including camping and driving his vehicle.
III.
Finally, Kinash argues that the Commissioner did not give sufficient weight to the disability determinations of the VA and the Agent Orange Veterans Payment Program. Under this Court’s previous decision, the Commissioner was required to give great weight to the disability determinations of other agencies. [11] The decisions of those other agencies are not binding, however. [12] The record reflects that the Commissioner considered both of the agencies findings and the evidence underlying each. The Commissioner chose to disagree with those findings. This alone is not reversible error.
IV.
For the foregoing reasons, the judgment is AFFIRMED.
. Califano v. Sanders, 430 U.S. 99, 109, 97 S.Ct. 980, 986, 51 L.Ed.2d 192 (1977).
. Torres v. Shalala, 48 F.3d 887, 890 (5th Cir.1995); Robertson v. Bowen, 803 F.2d 808, 810 (5th Cir.1986).
. 42 U.S.C. § 405(g).
. 20 C.F.R. § 422.210(c).
. 20 C.F.R. § 422.210(c).
. Flores v. Sullivan, 945 F.2d 109, 111-3 (5th Cir.1991).
. McCall v. Bowen, 832 F.2d 862, 864 (5th Cir.1987).
. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir.1995).
. 20 C.F.R. § 404, Subpt. P, App. 1.
.In this appeal, Kinash also argues that his condition is equivalent to the "Undifferentiated Connective Tissue Disorder” listing that was added to the social security disability regulations in 1993. 20 C.F.R. § 404, Subpt. P, App. 1, Sec. 14.06. Kinash did not raise this issue in the district court. As a general rule, this Court does not review issues that are raised for the first time upon appeal. In exceptional circumstances; .we may, in the interests of justice, review an issue that was not raised in the district court. "Such circumstances are sharply circumscribed by the plain error standard requiring that unobjected-to errors be ‘plain’ and 'affect substantive rights.’ ” United States v. Calverley, 37 F.3d 160, 162 (5th Cir.1994) (en banc). This is not such a case. Section 14.06 was first proposed and made public on December 18, 1991. It was codified and printed in the Code of Federal Regulations effective April 1, 1993. Kinash did not file his brief in the district court until September 7, 1993. He filed his response brief on September 23, 1993. Kinash did not raise § 14.06-in either brief.
On October 29, 1996, more than three years after § 14.06 took effect, the magistrate issued his findings of fact and conclusions of law recommending the denial of Kinash’s claims. Ki-nash objected to those findings, but he still did not raise § 14.06. Kinash had ample time to bring, this .issue to the district court’s attention. We will not excuse his failure to do so.
. Latham v. Shalala, 36 F.3d 482, 483 (5th Cir.1994);Underwood v. Bowen, 828 F.2d 1081, 1083 (5th Cir.1987).
. Johnson v. Sullivan, 894 F.2d 683, 686 (5th Cir.1990); 20 C.F.R. § 404.1504.