[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 97-1245
THOMAS R. BOOTHBY,
Plaintiff, Appellant,
v.
SOCIAL SECURITY ADMINISTRATION COMMISSIONER,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Selya, Boudin and Lynch,
Circuit Judges.
Francis M. Jackson on brief for appellant.
Jay P. McCloskey, United States Attorney, David R. Collins,
Assistant United States Attorney, and Thomas D. Ramsey, Assistant
Regional
Counsel,
Office
of the Chief Counsel, Region I, Social Security
Administration, on brief for appellee.
November 18, 1997
Per Curiam. In February 1992, claimant Thomas Boothby
filed a pro se application for SSI benefits, alleging
disability on account of alcoholism and depression. When his
application was denied at the administrative level, claimant
failed to seek further review. In September 1993, after
suffering a heart attack, he filed a second such application
and, with the assistance of counsel, was eventually awarded
benefits pursuant thereto. The ALJ rejected his request to
reopen the first application, however, finding that new
evidence
documenting
his
mental impairments failed to establish
"good cause" for doing so. See 20 C.F.R. S 416.1488. After
the
Appeals
Council
declined review, claimant filed this action
in district court challenging the denial of his reopening
request. From a judgment dismissing the suit for lack of
jurisdiction, he now appeals.
The denial of a request to reopen an application for
disability benefits is ordinarily not reviewable in federal
court. See, e.g., Califano v. Sanders, 430 U.S. 99, 107-09
(1977); Colon v. Secretary of HHS, 877 F.2d 148, 152-53 (1st
Cir. 1989) (per curiam). An exception to this rule exists
where a colorable constitutional claim has been presented.
See
,
e.g.
,
Sa
nders, 430 U.S. at 109; Dvareckas v. Secretary of
HHS
,
804
F.2d 770, 772 (1st Cir. 1986) (per curiam). Claimant
has attempted to advance such a claim here--arguing that,
because
his
mental
impairments prevented him from understanding
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and
pursuing
his
administrative remedies, and because he lacked
legal o
reopen
the
first application contravened due process. Such an
argument, when factually supported, has gained a favorable
judicial
reception.
See
,
e.g., Evans v. Chater, 110 F.3d 1480,
1482-83 (9th Cir. 1997) (listing cases); Parker v. Califano,
644 Torres
or other representation at the time, the refusal t
F.2d 1199, 1203 (6th Cir. 1981); v. Secretary of
HEW, 475 F.2d 466, 468-69 (1st Cir. 1973); see also Social
Security Ruling (SSR) 91-5p; Acquiescence Ruling 90-3(4). As
one
court
has
observed,
"It offends fundamental fairness ... to
bind
a
claimant to an adverse ruling who lacks both the mental
competency and the legal assistance necessary to contest the
initial
determination."
Young v. Bowen, 858 F.2d 951, 955 (4th
Cir. 1988).1
1 Inexplicably, claimant made no mention of the due
process issue in his complaint or in his "itemized statement"
(although he did there refer to the analogous SSR 91-5p).
The first written reference thereto appears in his objections
to the magistrate-judge's report; it is unclear whether the
issue was earlier raised at oral argument. Any claim not
presented to the magistrate-judge would be waived. See,
e.g., Borden v. Secretary of HHS, 836 F.2d 4, 6 (1st Cir.
1987). Yet because the Commissioner has not argued that any
such waiver occurred, we need not pursue the matter.
Similarly, because the Commissioner has not contended that
the constitutional claim was subject to the administrative
exhaustion requirement, we need not address the issue. See,
e.g., Shrader v. Harris, 631 F.2d 297, 300 (4th Cir. 1980)
(excusing failure to present due process issue to Secretary).
-3-
On appeal, the Commissioner does not take serious issu
opositions. Instead, he argues that the medical
falls short of "definitively establishing tha
e
with
these
pr 2
evidence t
plaintiff was unfit to pursue the remaining administrative
remedies." Brief at 12. Yet the relevant inquiry here is
whether a "colorable" due process violation has been
demonstrated. This is not an onerous standard. See, e.g.,
Evans
,
110
F.3d
at
1483
(noting that "plaintiff whose challenge
was
not
'wholly
insubstantial, immaterial, or frivolous' stated
a colorable constitutional claim") (quoting Boettcher v.
Secretary
of
HHS, 759 F.2d 719, 722 (9th Cir. 1995)); Boock v.
Shalala
,
48
F.3d
348,
353 (8th Cir. 1995) (indicating that only
those claims that were "patently frivolous" would "fail to
confer jurisdiction upon the district court") (Campbell, J.,
sitting by designation).
Upon review of the evidence here, we find that claimant
has presented a colorable due process claim. Dr. Doiron,
although
reporting well after the events in question, spoke of
an organic disorder with significantly compromised mental
functions, variable attention span, impaired concentration
2 The Commissioner does assert at one point, without
elaboration, that "the alleged constitutional deprivation
must concern the proceeding at which the determination not to
reopen was made." Brief at 10 (citing Cherry v. Heckler, 760
F.2d 1186, 1190 n.4 (11th Cir. 1985)). Yet other courts have
taken a broader view of the Sanders exception, see, e.g.,
Evans, 110 F.3d at 1482-83, which we regard as the preferable
approach.
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levels, depressive symptomology and substandard reading
y.3 And even Dr. Luongo, on whom the Commissioner
relies, spoke of an emotionally unstable personality disorder
with strong sociopathic and alcoholic features, a borderline-
defective intellect, a chronic difficulty in maintaining any
leve
abilit
l of responsibility, and an inability to handle funds.
Factfinding
is
of
course
the function of the agency rather than
a court. See, e.g., Torres, 475 F.2d at 469. We hold simply
that the evidence of mental incapacity in 1992, when claimant
failed
to
pursue his administrative remedies, is sufficient to
warrant further inquiry by the Commissioner.
Because the due process inquiry involves a fact-specific
judgment
in
evaluating medical evidence, we remand the case so
the Commissioner can make this judgment as an initial matter
and--if satisfied that there was a denial of due process--
address the merits. This procedure is consistent with past
practice
in
earlier cases. We think it worth emphasizing that
this remand turns on whether claimant has made a "colorable"
due process claim. Nothing in this opinion is designed to
suggest that the Commissioner should necessarily find that a
violation occurred.
3 The Commissioner has not objected to consideration of
the second Doiron report, which was first presented to the
Appeals Council. See, e.g., Perez v. Chater, 77 F.3d 41, 44-
45 (2d Cir. 1996) (following majority view that new evidence
submitted to Appeals Council is properly deemed part of
administrative record, even when Council has denied review).
-5-
We add that, given claimant's failure to raise the due
process
issue before the Commissioner, and given his tardiness
in presenting that issue squarely to the district court, see
note 1 supra, any request for attorney's fees in this court
would be looked upon with disfavor.
The judgment is vacated and the case remanded to the
district court, with directions to remand to the Commissioner
for further action consistent herewith. No costs.
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