Gomez v. Barnhart

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 9, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 05-31162
Summary Calendar

JOSEFA GOMEZ
Plaintiff-Appellant,

versus

JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL SECURITY
Defendant-Appellee.

Appeal from the United States District Court
For the Eastern District of Louisiana

(USDC No. 04-CV-2403)

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

Josefa Gomez filed applications for supplemental social

security benefits in 1984 and 1985; both applications were denied.

In 1999, Gomez sought to reopen the 1984 and 1985 applications.

The Commissioner denied Gomez’s request. Gomez filed an action in

district court seeking judicial review of the Commissioner’s

adverse decision. The district court dismissed her case for lack

of jurisdiction. Gomez appeals. We affirm.

*
Pursuant to 5TH CIR. R. 47.5, the 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should not be published and is not precedent except under the limited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.
 Absent a colorable constitutional claim, we lack jurisdiction

under 42 U.S.C. § 205 over the Commissioner’s refusal to reopen a

prior decision.1 Gomez argues that her mental impairment prevented

her from understanding and pursuing her right to appeal the denial

of her 1984 and 1985 applications. Her evidence of a mental

impairment falls short. First, Gomez submitted an “earnings

statement” indicating that she did not work between 1984 and 1990.

While it could be that Gomez did not work because of her mental

impairment, the earnings statement alone does not prove this

proposition. Second, Gomez submitted a 1998 letter from her

current doctor who stated that a different doctor diagnosed Gomez

with borderline personality disorder and dissociative disorder in

1994. That Gomez was mentally impaired in 1994 hardly suggests

that she was mentally impaired in 1984 or 1985. Third, Gomez

submitted a 1999 letter from her current doctor stating that when

Gomez first visited a hospital in 1984, she had been unable to work

for a year. Again, this evidence is insufficient to establish that

Gomez was mentally impaired, as there are many reasons why she was

not working prior to 1984. Finally, the 1999 letter referred to an

April 1984 psychological examination, which found that Gomez’s

“highest level of adaptive functioning [was] level 5,” which

results in “a moderate amount of impairment in both social

1
See, e.g., Califano v. Sanders, 430 U.S. 99, 108-09 (1977); Thibodeaux by
Thibodeaux v. Bowen, 819 F.2d 76, 80 (5th Cir. 1987) (“[A] federal court does not
have jurisdiction to review the non-constitutional bases of the Secretary’s
decision on a petition to reopen.”).

2
relations and occupational functioning.” This too is insufficient

to establish a constitutional claim, as there is no explanation of

what “level 5” means or whether that condition would prevent Gomez

from understanding that she needed to timely appeal the denial of

her benefits applications.

AFFIRMED

3