Catherine Schiel-Leodoro v. NANCY A. BERRYHILL, Acting Commissioner Social Security Administration

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CATHERINE SCHIEL-LEODORO,
Plaintiff-Appellant,
v.
NANCY A. BERRYHILL, Acting
Commissioner Social Security
Administration,
Defendant-Appellee.
No. 16-35464
D.C. No. 9:14-cv-00276-DLC
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief District Judge, Presiding
Submitted September 26, 2017**
San Francisco, California
Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Catherine Schiel-Leodoro appeals the district court’s decision that it lacked
jurisdiction to review the administrative law judge’s (“ALJ’s”) denial of a request
FILED
SEP 27 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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to reopen Schiel-Leodoro’s original application for Social Security benefits. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.1
We review de novo a district court’s determination that it lacks subject
matter jurisdiction. Dexter v. Colvin, 731 F.3d 977, 980 (9th Cir. 2013).
The district court properly concluded that it lacked jurisdiction to review the
ALJ’s denial of Schiel-Leodoro’s request to reopen her first benefits application.
An ALJ’s discretionary determination on reopening is not a final, reviewable
decision under 42 U.S.C. § 405(g). Klemm v. Astrue, 543 F.3d 1139, 1144 (9th Cir.
2008).2 Such decisions are not appealable to a district court absent a colorable
claim of a constitutional violation. See id.
Schiel-Leodoro does not allege a colorable claim of constitutional violation.
Schiel-Leodoro contends her due process rights were violated because (1) she had
mental impairments and no counsel when her first benefits application was denied
in September 2010, (2) notice sent to her explaining the September 2010 denial
was deficient, and (3) the Appeals Council improperly addressed the ALJ’s denial
of the request to reopen. None of these allegations presents a colorable claim. First,
1 Schiel-Leodoro’s motion for submission on the briefs is granted.
2 Schiel-Leodoro’s arguments that HALLEX I-2-9-10 and Nicholson v.
Finch, 311 F. Supp. 614 (D. Mont. 1970), make reopening mandatory fail because
neither is binding on this court.
2

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Schiel-Leodoro’s allegations of mental impairment do not constitute a due process
violation, because she does not show any impairment “prevented [her] from
understanding how to contest the denial of benefits” or met Social Security Ruling
91-5p, criteria. Id. at 1145. Second, although deficient notice of a benefits decision
can violate due process, see Gonzalez v. Sullivan, 914 F.2d 1197, 1203 (9th Cir.
1990), Schiel-Leodoro fails to show how notice of her denied claim was deficient.
Instead, she only shows that notice is absent from the current administrative record.
Third, the Appeals Council adequately explained its decision denying Schiel-
Leodoro’s request for review; the Council is not required to make particular
evidentiary findings to justify a decision. See Gomez v. Chater, 74 F.3d 967, 972
(9th Cir. 1996).
Alternatively, Schiel-Leodoro argues that the “manifest injustice” exception
should apply to the ALJ’s determination not to reopen her application. This
misconstrues both the ALJ’s decision and the “manifest injustice” exception. The
ALJ here applied res judicata when evaluating the onset of disability date in
Schiel-Leodoro’s second benefits application, not Schiel-Leodoro’s request to
reopen her original benefits application. Thus, because res judicata played no role
3

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in the ALJ’s discretionary reopening decision, Schiel-Leodoro cannot invoke the
“manifest injustice” exception to appeal that determination.3
AFFIRMED.
3 Even if the court were to expand the “manifest injustice” exception to
reopening determinations, Schiel-Leodoro would still not have a valid claim; she
does not show the ALJ’s decision not to reopen her original benefits application
caused any manifest injustice.
4

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