James NELSON, Plaintiff-Appellant, v. Sec'y OF HEALTH & HUMAN Servs., Defendant-Appellee, 927 F.2d 1109 (10th Cir. 1991). · Go Syfert
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James NELSON, Plaintiff-Appellant, v. Sec'y OF HEALTH & HUMAN Servs., Defendant-Appellee, 927 F.2d 1109 (10th Cir. 1991). Cases Citing This Book View Copy Cite
53 citation events (22 in the last 25 years) across 16 distinct courts.
Strongest positive: Sanders v. Social Security Administration, Commissioner of (ksd, 2020-07-06)
Treatment trajectory · 1991 → 2026 · click a year to view as-of
1991 2008 2026
Statutes interpreted (leading-cases list)
#11 20 C.F.R. § 404.933 cited 1× in this case · 69 total citations of statute
Top citers, strongest first. 29 distinct citers. How cited ↗
cited Cited as authority (rule) Sanders v. Social Security Administration, Commissioner of
D. Kan. · 2020 · confidence medium
See Califano v. Sanders, 430 U.S. 99, 107-09 (1997); Nelson v. Sec’y of Health & Human Servs., 927 F.2d 1109, 1111 (10th Cir. 1991).
cited Cited as authority (rule) Greenhalgh v. Social Security Administration
D.N.M. · 2019 · confidence medium
See 42 U.S.C. § 405 (g); 20 C.F.R. § 416.1400 (a)(5); Nelson, 927 F.2d at 1111; Marshall, 5 F.3d at 455 .
cited Cited as authority (rule) Finan v. Barnhart
D. Kan. · 2004 · confidence medium
Nelson v. Sec’y of Health & Human Services, 927 F.2d 1109, 1111 (10th Cir.1990) (citing Torres v. Sec’y of Health & Human Services, 845 F.2d 1136, 1138 (1st Cir.1988)). 15 .
discussed Cited as authority (rule) Roger L. Blair v. Kenneth S. Apfel, Commissioner of Social Security
10th Cir. · 2000 · confidence medium
Nor does the district court have jurisdiction to review the ALJ’s denial of [a elaimantjs request for a hearing when the current claim has the same factual basis as the initial claim.” Nelson v. Secretary of Health & Human Servs., 927 F.2d 1109, 1111 (10th Cir.1990) (quotation and citation omitted); see also Califano v. Sanders, 430 U.S. 99, 107-09 , 97 S.Ct. 980 , 51 L.Ed.2d 192 (1977) (Commissioner’s decision to reopen previously denied claim for benefits is discretionary, and therefore, unreviewable as a nonfinal decision under 42 U.S.C. § 405 (g)).
discussed Cited as authority (rule) Smith v. Chater
D. Colo. · 1997 · confidence medium
See Hilmes v. Secretary of Health & Human Servs., 983 F.2d 67, 69 (6th Cir.1993) (denying request for a hearing on the grounds of untimeliness is not a final decision and is not judicially reviewable); Brandyburg v. Sullivan, 959 F.2d 555, 560 (5th Cir.1992) (finding dismissal of a hearing request because claimant failed to appear at a hearing is not a final decision subject to judicial review); Nelson v. Secretary of Health & Human Services, 927 F.2d 1109, 1110 (10th Cir.1990) (affirming district court’s finding that it lacked jurisdiction to review denial of a request for a hearing where t…
cited Cited as authority (rule) Ross v. Chater
D. Kan. · 1996 · confidence medium
Nelson v. Secretary of Health & Human Services, 927 F.2d 1109, 1110-11 (10th Cir.1990); Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir.1990).
discussed Cited as authority (rule) Smith v. Chater
D. Colo. · 1996 · confidence medium
See Montes v. Secretary of Health & Human Services, 16 F.3d 416 (10th Cir.1994) (Table), No. 93-2273, 1994 WL 44840 (10th Cir. Feb. 16, 1994); Tillett v. Shalala, 13 F.3d 407 (10th Cir.1993) (Table), No. 93-4081, 1993 WL 539597 (10th Cir. Dec. 10, 1993); Nelson v. Secretary of Health & Human Services, 927 F.2d 1109, 1111 (10th Cir.1990); Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir.1990); Taylor, 738 F.2d at 1115 n. 6; White v. Schweiker, 725 F.2d at 93 .
discussed Cited as authority (rule) Margaret L. Darland v. Donna E. Shalala, Secretary of Health and Human Services
10th Cir. · 1995 · confidence medium
II, at 53 (615,000 cashier jobs and 87,000 order clerk jobs available in national economy). 11 Finally, we turn to claimant's argument that the ALJ should have reopened the previous disability determinations. " 'Absent a colorable constitutional claim' " we lack " 'jurisdiction to review the Secretary's discretionary decision not to reopen an earlier adjudication.' " Nelson v. Secretary of Health & Human Servs., 927 F.2d 1109, 1111 (10th Cir.1990)(quoting Torres v. Secretary of Health & Human Servs., 845 F.2d 1136, 1138 (1st Cir.1988)).
discussed Cited as authority (rule) Cleofas Montes v. Secretary of Health and Human Services
10th Cir. · 1994 · confidence medium
See Sanders, 430 U.S. at 109 ; Nelson v. Secretary of Health and Human Servs., 927 F.2d 1109, 1111 (10th Cir.1990). 9 That the Appeals Council found "good cause" to reopen the 1988 application does not change our analysis.
cited Cited as authority (rule) Tucker v. Sullivan
D. Kan. · 1991 · confidence medium
Nelson v. Secretary of Health and Human Servs., 927 F.2d 1109, 1111 (10th Cir.1990). 2 .
discussed Cited "see" Keller v. Berryhill
10th Cir. · 2018 · signal: see · confidence high
See Nelson v. Sec’y of Health & Human Servs., 927 F.2d 1109 , 1111 (10th Cir. 1990) (“Absent a colorable constitutional claim not present here, a district court does not have 2 We note that the district court entered a final judgment in that case in 2012.
discussed Cited "see" Barrett v. Asture
10th Cir. · 2009 · signal: see · confidence high
See Nelson v. Sec’y of H.H.S., 927 F.2d 1109, 1111 (10th Cir.1990) (holding district court has no jurisdiction to review Secretary's refusal to reopen an application absent a colorable constitutional claim). 5 .
cited Cited "see" In Re McLouth
Bankr. D. Mont. · 2000 · signal: see · confidence high
B.R. 163-64, 1991 WL 700518 *3 (Bankr.Mont.1991); See In re Gitts, 116 B.R. 174, 179-80 (9th Cir. BAP 1990), aff'd. 927 F.2d 1109 (9th Cir.1991). 4 .
cited Cited "see" Florence J. Gilbert v. Shirley S. Chater, Commissioner of Social Security
10th Cir. · 1997 · signal: see · confidence high
See Nelson v. Secretary of Health & Human Servs., 927 F.2d 1109, 1111 (10th Cir.1990).
cited Cited "see" Gilbert v. Chater
10th Cir. · 1997 · signal: see · confidence high
See Nelson v. Secretary of Health & Human Servs., 927 F.2d 1109 , 1111 (10th Cir. 1990).
discussed Cited "see" In Re Robbins
Bankr. D. Mass. · 1995 · signal: see · confidence high
See Martinson v. Michael (In re Michael), 185 B.R. 830, 831 (Bankr.D.Mont.1995), citing In *404 re Gitts, 116 B.R. 174, 178 (9th Cir. BAP 1990), aff'd 927 F.2d 1109 (9th Cir.1991). 3 If the Debtor is unable to make an election, the Debtor’s interest in the tenancy by the entirety is not exempt under section 522(b)(2)(B). 4 Under well-settled Massachusetts law, a creditor can dispossess a debtor, subject to the Debtor’s spouse’s right of survivorship.
cited Cited "see" 32 Collier bankr.cas.2d 1813, Bankr. L. Rep. P 76,399 in Re Jereld Joe Michael, A/K/A Jerry Michael in Re Shirley Kay Michael, Debtors. Jereld J. Michael Shirley K. Michael v. Craig D. Martinson, Trustee
9th Cir. · 1995 · signal: see · confidence high
See Gitts v. Arkison (In re Gitts), 116 B.R. 174, 179 (9th Cir. BAP 1990), aff'd and adopted, 927 F.2d 1109 (9th Cir.1991).
cited Cited "see" Michael v. Martinson (In re Michael)
9th Cir. · 1995 · signal: see · confidence high
See Gitts v. Arkison (In re Gitts), 116 B.R. 174, 179 (9th Cir. BAP 1990), aff'd and adopted, 927 F.2d 1109 (9th Cir.1991).
discussed Cited "see" Delmar R. Duke v. Donna E. Shalala, Secretary of Health and Human Services
10th Cir. · 1993 · signal: see · confidence high
See Nelson v. Secretary of Health & Human Servs., 927 F.2d 1109, 1111 (10th Cir.1990); Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir.1990). 5 On this appeal, Mr. Duke contends that the ALJ's 1990 decision that he was not disabled by severe pain was not supported by substantial evidence.
discussed Cited "see, e.g." Conant v. Social Security Administration
N.D. Okla. · 2024 · signal: see also · confidence low
See, e.g., Califano, 430 U.S. at 108 ; Gonzalez v. Sullivan, 914 F.2d 1197 (9th Cir. 1990); see also Nelson v. Secretary of Health & Human Services, 927 F.2d 1109 , 1111 (10th Cir. 1990) (recognizing that “‘a colorable constitutional claim’” may provide “‘a district court . . . jurisdiction to review the Secretary’s discretionary decision[.]’”), quoting Torres v. Secretary of Health & Human Services, 845 F.2d 1136, 1138 (1st Cir.1988)).
discussed Cited "see, e.g." Estate of Lego v. Leavitt
10th Cir. · 2007 · signal: see also · confidence medium
In order to be entitled to jurisdiction under this exception, however, the Estate must allege a “colorable constitutional claim.” Califano, 430 U.S. at 109 , 97 S.Ct. 980 ; see also Nelson v. Sec’y of Health & Human Servs., 927 F.2d 1109, 1111 (10th Cir.1990); Brandyburg, 959 F.2d at 562 .
discussed Cited "see, e.g." Estate of Bernadette v. Barnhart
10th Cir. · 2007 · signal: see also · confidence low
In order to be entitled to jurisdiction under this exception, however, the Estate must allege a “colorable constitutional claim.” Califano, 420 U.S. at 109; see also Nelson v. Sec’y of Health & H um an Servs., 927 F.2d 1109 , 1111 (10th Cir. 1990); Brandyburg, 959 F.2d at 562 .
discussed Cited "see, e.g." ROBIN L. MILLER CONST. CO. v. Coltran
Wash. Ct. App. · 1997 · signal: see also · confidence low
See also In re Gitts, 116 B.R. 174, 178 (1990), aff'd, 927 F.2d 1109 (9th Cir.1991) ( citing Lien v. Hoffman, 49 Wash.2d 642 , 306 P.2d 240 (1957); Damascus Milk Co. v. Morriss, 1 Wash.App. 501 , 463 P.2d 212 (1969)). [20] State v. Yakima Cty.
discussed Cited "see, e.g." Robin L. Miller Construction Co. v. Coltran
Wash. Ct. App. · 1997 · signal: see also · confidence low
See also In re Gitts, 116 B.R. 174, 178 (1990), aff’d, 927 F.2d 1109 (9th Cir. 1991) (citing Lien v. Hoffman, 49 Wn.2d 642 , 306 P.2d 240 (1957); Damascus Milk Co. v. Morriss, 1 Wn.
discussed Cited "see, e.g." Anthony P. Abbruzzese v. Railroad Retirement Board
10th Cir. · 1995 · signal: see also · confidence medium
Brown v. Sullivan, 912 F.2d 1194, 1196 (10th Cir.1990); see also Nelson v. Secretary of Health & Human Servs., 927 F.2d 1109, 1111 (10th Cir.1990) (holding that absent a color-able claim of constitutional deprivation, an appellate court is without jurisdiction to review the Secretary’s decision not to reopen).
discussed Cited "see, e.g." Wilson Sporting Goods Co. v. Pedersen
Wash. Ct. App. · 1994 · signal: see also · confidence low
App. at 516 ; see also In re Gitts, 116 B.R. 174,178 (Bankr. 9th Cir. 1990) (recognizing that the homestead exemption protects property from judgments only up to the amount of the homestead exemption), aff’d, 927 F.2d 1109 (1991).
discussed Cited "see, e.g." Winter v. Glaze (In Re Glaze)
Bankr. D. Ariz. · 1994 · signal: see also · confidence low
See also, In re Gitts, 116 B.R. 174 (9th Cir. BAP 1990) aff'd, 927 F.2d 1109 (9th Cir.1991) (the debtors took the necessary steps under Washington law to declare a homestead exemption; thus, the Gitts court determined that based upon the debtors’ rights as of the petition date, under Washington law, the postpetition declaration of homestead created an exemption which was valid vis á vis the trustee.
discussed Cited "see, e.g." In Re Combs
Bankr. N.D. Cal. · 1994 · signal: see also · confidence low
See also In re Gitts, 116 B.R. 174, 178 (9th Cir. BAP 1990), aff'd, 927 F.2d 1109 (9th Cir.1991) (“[t]he right to exemptions under the Bankruptcy Code ... is generally determined by facts as they existed on the date bankruptcy was filed.”).
discussed Cited "see, e.g." Gerald M. HILMES, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee
6th Cir. · 1993 · signal: see, e.g. · confidence medium
See, e.g., Nelson v. Secretary of Health and Human Servs., 927 F.2d 1109, 1111 (10th Cir.1990); Torres v. Secretary of Health and Human Servs., 845 F.2d 1136, 1138 (1st Cir.1988); Holloway v. Schweiker, 724 F.2d 1102, 1105 (4th Cir.), cert. denied, 467 U.S. 1217 , 104 S.Ct. 2664 , 81 L,Ed.2d 369 (1984); Harapat v. Califano, 598 F,2d 474, 477 (8th Cir.), cert. denied, 444 U.S. 980 , 100 S.Ct. 482 , 62 L.Ed.2d 406 (1979).
Retrieving the full opinion text from the archive…
32 soc.sec.rep.ser. 593, unempl.ins.rep. Cch 15915a James Nelson
v.
Secretary of Health & Human Services
90-2074.
Court of Appeals for the Tenth Circuit.
Mar 7, 1991.
927 F.2d 1109
Gary J. Martone, Albuquerque, N.M., for plaintiff-appellant., William L. Lutz, U.S. Atty., Ronald F. Ross, Asst. U.S. Atty., Donald A. Gonya, Chief Counsel for Social Security; Randolph W. Gaines, Deputy Chief Counsel for Social Security; A. George Lowe, Deputy Chief Counsel for Social Security Disability Litigation; and Etzion Brand, Supervisory Trial Atty. for the Dept, of Health and Human Services, Baltimore, Md., for defendant-appellee.
Brorby, McKAY, Moore.
Cited by 15 opinions  |  Published
JOHN P. MOORE, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The cause is therefore ordered submitted without oral argument.

James Nelson appeals the district court’s dismissal of his complaint requesting judicial review of the denial of his second claim for social security benefits. The district court held that because the Secretary of Health and Human Services (the Secretary) did not reopen Mr. Nelson’s claim, the court was without jurisdiction to review the decision. Mr. Nelson now contends that administrative res judicata was improperly applied depriving him of a hearing in which he could fully present his claim with the benefit of the Secretary’s record. However, our review of the briefs and record substantiates the district court’s dismissal, and we affirm.

On January 23, 1986, Mr. Nelson initially filed an application for Social Security Disability Insurance Benefits under Title II and Title XVIII. In that application, Mr. Nelson described his disabling condition as constant cough caused by smoking, lower back problems, and arthritis in his hands and back. The Secretary denied the application at the initial administrative level. Although notified of his right to appeal (Exhibit 3), Mr. Nelson did not contest the determination which, after the sixty-day appeal time expired, became a final decision of the Secretary.

In April 1987, Mr. Nelson filed a second application. Finding this claim included the same issues as the first, without any new and material evidence offered sufficient for reopening, the Secretary denied the claim at the initial level and upon reconsideration. Mr. Nelson then requested a hearing.

Prior to conducting the hearing, the ALJ reviewed the file and concluded that Mr. Nelson’s “new evidence” was not material and did not compel reopening the 1986 application. In the written opinion, the ALJ referenced the medical evidence submitted. Further, the order noted the claimant’s failure to offer psychological evidence from treating or examination sources for the relevant time from December 1982 until December 1985 to support his representation that he may have suffered from a psychological impairment during that time. The AU refused to order consultative psychological testing or an examination. Based on this record, the ALJ denied Mr. Nelson’s request for a hearing, concluding the matters had been fully and fairly considered and were precluded from further review by administrative res judicata.

Mr. Nelson sought judicial review in the district court arguing that a due process hearing before an ALJ was never afforded; new and material evidence was submitted;[*1111] and the doctrine of res judicata does not apply to bar reconsideration. The district court disagreed, finding that it lacked jurisdiction to review the Secretary’s refusal to reopen an application where the claimant had failed to raise a colorable constitutional claim.

We agree. “Absent a colorable constitutional claim not present here, a district court does not have jurisdiction to review the Secretary’s discretionary decision not to reopen an earlier adjudication.” Torres v. Secretary of Health and Human Services, 845 F.2d 1136, 1138 (1st Cir.1988). Nor does the district court have jurisdiction to review the ALJ’s denial of Mr. Nelson’s request for a hearing when the current claim has the same factual basis as the initial claim. Matos v. Secretary of Health, Education and Welfare, 581 F.2d 282, 286 (1st Cir.1978).

The district court correctly found that Mr. Nelson’s unsupported allegation that he might have been suffering from a mental impairment when he submitted his first application for benefits is insufficient to create a colorable constitutional claim. The record has no evidence to support the claim other than the AU’s denial of Mr. Nelson’s request for a consultative psychological examination. With no other objective evidence presented to support the request, the ALJ was not required to authorize the consultation.

Mr. Nelson does not contend that the Secretary, in fact, reopened his case. Nor does he specify any new and material evidence offered to substantiate either his allegation of psychological impairment or the basis of reopening his claim. [1] On this record, we conclude the district court properly dismissed the complaint and AFFIRM.

1

. In his brief, counsel contends the Secretary dismissed the case before he could submit any new and material evidence. We note that 20 C.F.R. § 404.933 explains how to request a hearing before an administrative law judge and states:

(a) Written request. You may request a hearing by filing a written request. You should include in your request—
(3) A statement of additional evidence to be submitted and the date you will submit it.