Summary Calendar KENNETH RIECKE v. Jo Anne B. Barnhart, Commissioner of Social Security

*Pursuant to 5TH CIR. R. 47.5, this Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
June 29, 2006
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-51169
Summary Calendar
KENNETH RIECKE,
Plaintiff - Appellant,
v.
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Texas
1:04-CV-348
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Kenneth Riecke is seeking disability insurance benefits under
Title II of the Social Security Act. He was denied benefits in
1999 and filed a second application for benefits in 2002 that was
also denied. This appeal asks whether the district court erred in
holding that it lacked jurisdiction to review the res judicata
dismissal of the second application. As explained below, the

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1Riecke asserts that these conditions were caused, in part,
by his service in the Vietnam War.
2
dismissal was not error.
FACTS AND PROCEDURAL HISTORY
On June 25, 1998, Riecke filed his first application for
disability benefits, claiming he had been disabled since January 1,
1991, with a last insured date of March 31, 1991. The application
stated that lower back pain, ringing in the ears, and post-
traumatic stress disorder prevented him from working.1 This
application was denied initially and on reconsideration. On
Riecke’s request, an administrative law judge, Judge Vila, held a
hearing to consider the application. Riecke appeared in person at
the hearing, and, after Judge Vila fully advised him of his right
to retain counsel, Riecke agreed to proceed without representation.
Judge Vila found that Riecke was not disabled at any time
through the date of his decision, June 18, 1999. He found that
neither the objective medical evidence nor Riecke’s testimony
established that he was impaired at a level that prevented
sedentary employment. The Appeals Council denied Riecke’s request
for review. He did not appeal to the United States District Court.
On September 12, 2002, Riecke filed his second application for
benefits. It alleged disability commencing December 1, 1983, due
to chronic neck and back pain, nerve damage, asthma, degenerative
disc disease, hearing loss, residuals from a wrist injury, and
post-traumatic stress disorder. As he did in the first appeal,

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2A res judicata dismissal is appropriate when a subsequent
application for disability benefits alleges the same facts and
issues made in the previous application. 20 C.F.R. §
404.957(c)(1).
3
Riecke used a last insured date of March 31, 1991. This
application was denied initially and on reconsideration. Again
Riecke requested a hearing.
The administrative law judge reviewing Riecke’s case, Judge
Gough, dismissed this application on res judicata grounds without
a hearing. Judge Gough found that the issues covered during the
hearing before Judge Vila involved the same facts and law raised in
the second application. Judge Gough found no grounds for reopening
the prior decision. The Appeals Council upheld the decision, and
Riecke appealed to the United States District Court. The court
found that it lacked jurisdiction to review the res judicata
dismissal of Riecke’s second application. Riecke appealed.
DISCUSSION
Judicial review of a decision denying disability claims is
only available “after any final decision . . . made after a
hearing.” 42 U.S.C. § 405(g) (2000). When an administrative law
judge dismisses a case on res judicata grounds,2 that finding is
generally not reviewable because it is not a final decision after
a hearing. See Califano v. Sanders, 430 U.S. 99, 108 (1977);
Hensley v. Califano, 601 F.2d 216, 216 (5th Cir. 1979) (per curiam)
(“[R]efusals to reopen and determinations that a claim is res

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4
judicata are not reviewable”). Jurisdiction does exist, however,
when a plaintiff raises a colorable constitutional claim.
Brandyburg v. Sullivan, 959 F.2d 555, 562 (5th Cir. 1992).
As previously set forth, Judge Gough dismissed Riecke’s
application on res judicata grounds. Therefore, the district court
only had jurisdiction if Riecke had a colorable constitutional
claim. Sanders, 480 U.S. at 109. Riecke argued that the
proceedings violated his right to due process and right to counsel.
The district court rejected these arguments. Our review is de
novo. Hashemite Kingdom of Jordan v. Layale Enter., S.A. (In re
B-727 Aircraft Serial No. 21010), 272 F.3d 264, 269 (5th Cir.
2001).
Riecke’s due process argument fails. After the decision by
Judge Vila, Riecke could have sought judicial review. Instead, he
filed a subsequent application covering the same issue, i.e.,
disability prior to March 31, 1991. Sanders provides that “a
claimant is not given a guarantee of a second hearing” when he
waives previous opportunities for review. Matos v. Sec’y of
Health, Educ. & Welfare, 581 F.2d 282, 285 (1st Cir. 1978). In
addition, Riecke received a full and fair hearing of his initial
application, and, because the second application covered the same
issue, it was not a due process violation to deny a second

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3Riecke also contends that he did not get a fair hearing
because of alleged medical problems suffered by Judge Gough.
Riecke, however, offers no evidence of Judge Gough’s condition
and no authority for how such a condition would create a
constitutional claim. This Court does not consider such vague,
unsupported arguments. Foster v. Townsley, 243 F.3d 210, 212 n.1
(5th Cir. 2001) (issues inadequately briefed are deemed waived).
5
hearing.3
Likewise, Riecke’s argument concerning counsel fails. There
is no constitutional right to counsel at a Social Security
Administration hearing. Brandyburg, 959 F.2d at 562; Clark v.
Schweiker, 652 F.2d 399, 403 (5th Cir. 1981).
CONCLUSION
For the above-mentioned reasons, the district court did not
err in holding that it lacked jurisdiction to hear the appeal of
the res judicata dismissal. Riecke failed to present a colorable
constitutional claim as required by Sanders and Brandyburg.
AFFIRMED.

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