Free v. Barnhart

67 F. App'x 476

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 17, 2003
• Docket: No. 02-17345; D.C. No. CV-01-05615-SMS
• Status: Published

Opinion

MEMORANDUM

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Bill Free appeals the district court’s summary judgment in favor of the Commissioner of the Social Security Administration (“Commissioner”) in Free’s action, which sought review of the denial of his request to reopen a claim for disability benefits under the Social Security Act. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court’s determination that it lacks subject matter jurisdiction, Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1153 (9th Cir.1998), and we affirm.

The district court properly concluded that it lacked jurisdiction to review the Commissioner’s decision not to reopen Free’s 1978 application. See 42 U.S.C. § 405(g); Califano v. Sanders, 430 U.S. 99, 107-08, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977) (concluding that because a petition to reopen a final decision may be denied without a hearing, it is not a final decision made after a hearing); see also Davis v. Schweiker, 665 F.2d 934, 935-36 (9th Cir.1982) (concluding that the Commissioner’s refusal to reopen and determination that a claim is barred by res judicata are not reviewable).

Free’s contention that the district court had jurisdiction over his action because the administrative law judge implicitly reopened his prior applications is without merit. See Krumpelman v. Heckler, 767 F.2d 586, 588-89 (9th Cir.1985) (stating that the Commissioner’s consideration of res judicata is not a reopening of the prior claim).

To the extent Free challenges the Commissioner’s award of benefits retroactive only to July 1992, his contention lacks merit. See 20 C.F.R. § 404.621(a)(1); Rolen v. Barnhart, 273 F.3d 1189, 1191 (9th Cir.2001) (stating retroactive benefits limited to the twelve months prior to the filing of an application for benefits), cert, denied, 537 U.S. 818, 123 S.Ct. 93, 154 L.Ed.2d 24 (2002).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.