Opposition Brief — Gilbert v. Shalala

FLORENCE. J. GILBERT, ET AL., PETITIONERS

eo

Suietey S. CHaATeR,

COMMISSIONER OF SOCIAL SECURITY

ON PETITION FOR A WRIT OF CERTIORARI

10 THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION a

DREW S. Days, HI

FRANK W. HUNGER

- Assistant Attorney General

‘WILLIAM KANTER

~ LOWELL V. STURGILL JR.

Attorneys

part of Justice

Washington, D.C. 20580

(202) 514-2217

ne ERR ENO Ea DARIAN ANGERS AEE PRN AR

-'BEST AVAILABLE COPY.

QUESTIONS PRESENTED

1. Whether petitioners had standing to challenge

notices from the Social Security Administration

denying their claims for disability benefits on the

ground that the notices did not adequately explain

their appeal rights, when petitioners failed to show

that they relied on the notices in deciding not to

appeal.

2. Whether petitioner Neal was entitled to attor-

ney’s fees under the Equal Access to Justice Act.

TABLE OF CONTENTS

Page

I IN bei tectacie sae inteee< deco ia ei 1

a co Oe ES EN Sint RS A ee 2

PON iiibdicibbsicidsssicidsesrivibicrstciencesccsuiSiah nic 2

Pe ie iiniitiicdthibaibtsiicsirescensiasneenciiokc cscs, Se. 7

oa pete a eg RO RIE TOI OO Re Tet aL tee 14

TABLE OF AUTHORITIES

Cases:

Allen v. Wright, 468 U.S. 787 (1984) coccccccccocccsosesees.... 8

Burks-Marshall v. Shalala, 7 F.3d 1346

NO IE EE Sipe siaiddvahes csdiccccedensiiedadcdiciies éheccoeeessceccin. 9

Christopher v. Secretary of HHS,

702 F. Supp. 41 (N.D.N.Y. 1989) .0...cccccccccccsescoocesceees 9

Commissioner, INS v. Jean, 956 U.S. 154 SEND vvntsnnscdes 12

Cuffee v. Sullivan, 842 F. Supp. 1219 (W.D. Mo. 1993) 11

Day v. Shalala, 23 F.3d 1052 (6th Cir. __ | SRE 9, 10

Gilbert v. Sullivan, No. 93-2309, 1995 WL 91120

ee ae ON OO in a 11

Gonzalez v. Sullivan, 914 F.2d 1197 (9th Cir. 1990) ...... 9

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987) . 8

Hagans v. Lavine, 415 U.S. 528 (1974) .o.ccccccoceocc--.--.... 9

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .. 7,8

McKart v. United States, 395 U.S. 185 (1969) ............. 13

Parisi v. Davidson, 405 U.S. 34 (1972) .occcccccceccecco-.-..... 13

Pennhurst State School & Hospital v. Halderman,

MOP PE GF IED tings casdcrtiacaskcedescosccs ons. 9

Torres v. Shalala, 48 F.3d 887 (5th Cir. eT 9

Weinberger v. Salfi, 422 U.S. 749 (1975) .occcccceoccse------... 13

Constitution, statutes and regulations:

Pm I OR ac 7, 8, 11, 12

Equal Access to Justice Act, 28 U.S.C. 2412 ................... 6

(IIT)

IV

Statutes and regulations—Continued: Page

Omnibus Budget Reconciliation Act of 1990, Pub. L. No.

101-508, 104 Stat. 1388:

§ 5107(a)(1), 104 Stat. 1388-269 (42 U.S.C.

ROGCDAG) CMID, VDD ED) sacescccccocscessescosceeccocsceseseas

S GAG) See ee BOUIN siccavecccctecsqeedseccesosescescicis

Social Security Act, 42 U.S.C. 301 et seq.:

Tit. II, 42 U.S.C. 401-433 (1988 & Supp. V 1993) ....... 2, 4,9

GE UR, GI sin sierncistnniniwindpibinccsibsocniiovassesiccces 3

DBA). RE cheshathnintccsaseuacélonincbinsinsanstvkentiniees 3

Tit. XVI, 42 U.S.C. 1381-1383d (1988 & Supp. V 1993) 2,4

Social Security Independence and Program Improve-

ments Act ot 1994, Pub. L. No. 103-296, 108 Stat.

1464:

© DES CEA FU a DER. ealetanncinetiens phncin se Atdenactotsiondnens 1

© RO, BOS UE, FEET ccctnccccpncicccsecncinceneessscosnsdamnen’ 1

20 C.F.R.:

eo

ee I peti ic ccscinet sa ssn crieabedtpicainas

I NOE Siccdévcccincuissecnnnnescanteoonapusidasianiinietanin

CE Me ikeiidcs capes Sectvediccvcigedostuctansitdasipiaiieeséans

RI IE IIIED cic cn tn'scchersecsicansbaieliticnek eth bakcanineenaatbociagianiasbinen

IE SE iin sainkthindnecctescceniiedscansvttianediesebactes

RIE NEE Siiciintissnchercspsacuibesiicghceceimbnscseiiulsibaneaiinainnes

PE, GED svinasenccistivecelnssspnaiscvacctncasionsnterievinncnvenempeidgaeds sake

treet enauusnanunle

Regulations—Continued: Page

Section 416.1405 ......... pisuintsoddidsatnakbedaiimobsaiiiassaateacs

a Eo ke 8 a8

Miscellaneous:

56 Fed. Reg. (1991):

p. 29,971 (Social Security Ruling 91-5p) ................... 5, 13

(iy 8s ER CRE EEE RPO rig coy eek 5 5

60 Fed. Reg. 20,549 (1995) (Social Security

ce least, SE MRSC REG air cit S08 CME SOREN eal OE 12

Jn the Supreme Court of the nited States

OCTOBER TERM, 1994

No. 94-1689

FLORENCE J. GILBERT, ET AL., PETITIONERS

Vv.

SHIRLEY S. CHATER,

COMMISSIONER OF SocIAL SEcurITY!

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-7) is

reported at 45 F.3d 1391. The opinion of the dis-

trict court dismissing the case (Pet. App. 16-27) is

1 Section 105(a)(1) of the Social Security Independence and

Program Improvements Act of 1994, Pub. L. No. 103-296, 108

Stat. 1472, transferred the functions of the Secretary of Health

and Human Services “with respect to or in support of the

programs and activities the administration of which is vested in

the Social Security Administration” to the Commissioner of

Social Security, effective March 31, 1995. Under Section 106(d)

of the Act, 108 Stat. 1477, Shirley S. Chater, Commissioner of

Social Security, should be substituted for Donna E. Shalala,

Secretary of Health and Human Services, as the defendant-

respondent in this action.

(1)

2

reported at 828 F. Supp. 815. The order of the district

court denying petitioner Neal’s request for attorney’s

fees (Pet. App. 10-14) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

January 17, 1995. The petition for a writ of certiorari

was filed on April 17, 1995. The jurisdiction of this

_ Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. a. Petitioners applied for disability insurance

benefits under Title II of the Social Security Act and

for Supplemental Security Income benefits under Title

XVI of the Act. See 42 U.S.C. 401-433 (1988 & Supp. V

1993) (Title II), 1881-1383d (1988 & Supp. V 1993) (Title

XV]); see also 20 C.F.R. Pts. 404 (Title II regulations),

416 (Title XVI regulations). The Social Security

Administration (SSA) made initial determinations that

petitioners were not eligible for benefits and notified

them of that determination in writing. See 20 C.F.R.

404.902, 416.1402.2 The notice advised each petitioner

that he or she could ask for reconsideration of the

initial determination. See Pet. App. 18-19 (reproducing

relevant language in denial notices); see also 20 C.F.R.

404.904, 416.1404. Petitioners Blair, Neal, and London

failed to ask for reconsideration, causing the initial

determinations to become binding. See 20 C.F.R.

404.905, 416.1405; see generally Pet. App. 2, 18.

2 Disability determinations are initially made by the State

in which the claimant resides under regulations and policies

promulgated by SSA. See 20 C.F.R. 404.1503, 416.1010-

416.1018. For the sake of simplicity, we will refer to SSA as

the decisionmaker at each stage.

3

The other two petitioners, Gilbert and Robinson,

sought reconsideration, which was denied. Pet. App.

18. The written notice of the denial of reconsideration

advised them that they could request a de novo

hearing before an administrative law judge (ALJ). Id.

at 18-19; see also 20 C.F.R. 404.922, 416.1422

Petitioner Gilbert did not request a hearing;

petitioner Robinson initially requested one, but later

withdrew her request because she found work. Pet.

App. 18; C.A. App. 330-331.4 Their failure to seek

further administrative review caused the recon-

sideration decisions to become binding. 20 C.F.R.

404.921, 416.1421.

After an adverse determination on an application for

disability benefits becomes binding, the claimant may

file a new application. But if the new application is

granted, benefits are generally awarded based solely

on the date upon which the new application was filed.

Specifically, Title II disability benefits may be award-

ed for up to 12 months prior to the month in which the

new application was filed, 42 U.S.C. 423(b); 20 C.F.R.

8 If the claimant makes a timely request, the ALJ will hold

a hearing and issue a ruling based on the evidence presented

at the hearing or otherwise contained in the record. See 20

C.F.R. 404.953, 416.1453. A claimant who is dissatisfied with

the ALJ’s decision may appeal to the Appeals Council of SSA

within 60 days of receiving notice of the ALJ’s decision. See 20

C.F.R. 404.968, 416.1468. A claimant dissatisfied with the

Appeals Council’s actic 1 may seek judicial review in federal

district court within 60 Jays. See 42 U.S.C. 405(g).

* The district court incorrectly stated that petitioner

Robinson “appealed throughout the administrative process and

obtained a favorable decision.” Pet. App. 18. As stated in the

text, SSA denied Robinson’s request for reconsideration. C.A.

App. 325, 328.

404.621(a), and SSI benefits may be awarded beginning

with the month in which the new application was filed,

20 C.F.R. 416.335. Only in certain specified circum-

stances may a decision denying a prior claim be

“reopened” and benefits awarded for prior periods.’ In

the absence of such circumstances, the denial of the

prior claim has preclusive effect (for the time period

covered by that claim) by virtue of the doctrine of

administrative res judicata.®

b. Years after their claims were denied, petitioners

filed new applications for disability benefits under

Titles II and XVI. In the new applications, they

sought to have their prior claims reopened and benefits

awarded based on the prior applications. In addition to

5 A claim for benefits may be reopened (1) within 12

months of the initial determination, for any reason; (2) within

four years (for Title II benefits) or two years (for SSI benefits)

of the initial determination, for “good cause”; or (3) at any

time, in certain extraordinary cases (for example, cases

involving fraud). See 20 C.F.R. 404.987-404.989, 416.1487-

416.1489.

6 In 1990, Congress amended the Social Security Act to

preclude the application of administrative res judicata to

adverse determinations by SSA made on or after July 1, 1991,

if the claimant failed to file a timely appeal “in good faith

reliance upon incorrect, incomplete, or misleading information,

relating to the consequences of reapplying for benefits in lieu

of seeking review of an adverse determination, provaled by

any officer or employee of the [SSA].” Omnibus Budget

Reconciliation Act of 1990, Pub. L. No. 101-508, §§ 5107(a)(1),

5107(b), 104 Stat. 1388-269, codified at 42 U.S.C. 405(b)(3)

(Supp. V 1993). The amendment does not apply to the adverse

determinations that petitioners sought to have reopened in this

action, because they were made before July 1991. See C.A.

App. 636. In any event, petitioners do not advance any claim

under the 1990 amendment.

5

filing the new applications, petitioners filed this action

in the United States District Court for the District of

Colorado. Petitioners contended that their prior

claims should be reopened because the denial notices

that they received from SSA violated due process. In

particular, they argued that the notices concerning

their prior applications did not adequately explain that

they could not obtain benefits based on those

applications if they made new applications.

ec. During the course of the litigation, SSA decided

to review petitioner Neal’s prior applications for dis-

ability benefits pursuant to Social Security Ruling

(SSR) 91-5p, 56 Fed. Reg. 29,971 (1991). SSR 91-5p

codifies a long-standing agency policy providing that

SSA may review an adverse determination on a prior

application, even after the time for appealing the

adverse determination has expired, if the claimant was

unrepresented at the time of the prior determination

and lacked the mental capacity to pursue an appeal. Jd.

at 29,972. Applying that policy here, SSA awarded

petitioner Neal the benefits he sought in this

litigation. See Pet. App. 3, 7, 25.’

2. The district court granted summary judgment in

favor of the government. Pet. App. 16-27. It held that

petitioner Neal’s claim was moot because SSA had

7 SSR 91-5p provides for an extension of the time within

which an adverse determination may be reviewed. As a techni-

cal matter, that sort of relief differs from the reopening of a

prior claim. Either form of relief, however, may lead to an

award of retroactive benefits. Because the courts below de-

scribed the administrative relief accorded to petitioner Neal as

a “reopening” (Pet. App. 7, 25)—and because the difference

between an extension of the deadline for seeking review and

the reopening of a prior claim is not significant for purposes of

this case—we will use the’same term hereafter.

6

reopened his prior claim and awarded him all the

benefits that he sought in this action. Jd. at 25. The

district court further held that the other petitioners

lacked standing to challenge SSA’s denial notices.

The court observed that none of the petitioners had

shown that they had failed to appeal the denial of their

prior claims as a result of the allegedly defective

denial notices. It accordingly concluded that peti-

tioners had not shown that the alleged defect caused

them any harm. Id. at 22-27.

In a later order, the district court denied petitioner

Neal’s request for attorney’s fees under the Equal

Access to Justice Act (EAJA), 28 U.S.C. 2412. Pet.

App. 10-14. The court observed that, under the EAJA,

“{ajn award of fees and other expenses [to a prevailing

party] is mandatory unless the court finds that the

government’s position was substantially justified.” Jd.

at 12. The court determined that, “[iJn this case, the

government advanced reasonable defenses against

Neal’s claim, the most fundamental of which was his

lack of standing.” Jbic. The court rejected Neal’s

argument that SSA’s eventual decision to reopen his

prior claims established that SSA’s position was not

substantially justified. It explained that “[tJhis

reopening [was] based on grounds other than those

challenged [here],” namely, “Neal’s mental im-

pairment and lack of legal representation” at the time

of his prior application. Jd. at 13. The court therefore

concluded that, although the reopening was “arguably

sufficient to allow Neal to assert prevailing party

status,” it did not “transform the government’s case

into an insubstantial one.” Jbid.

3. The court of appeals affirmed. Pet. App. 1-7. It

held, first, that petitioners “failed to present evidence

7

that they meet the Article III requirement of

standing.” Id. at 4. It explained (ibid.):

[Petitioners] have not shown a causal connection

between their injury and the allegedly deficient

denial notices. To the contrary, the record in this

case clearly establishes a lack of reliance by [peti-

tioners] upon the notices. In deposition testimony

or affidavits, [petitioners] stated either that they

relied on sources other than the challenged lan-

guage in believing that they could reapply and

receive retroactive benefits, or could not remember

reading the challenged language.

The court also held that petitioner Neal was not

entitled to an EAJA award because the government’s

position was substantially justified. Jd. at 6-7. In the

court’s view, “the government was reasonable in its

defense that [petitioner] Neal lacked standing * * *

[and] in its position that the denial notices were

constitutionally adequate.” Jd. at 6.

ARGUMENT

1. The court of appeals correctly held that pe-

titioners lack standing to contest the adequacy of the

notice denying their prior claims for disability

benefits. That holding, contrary to petitioners’ con-

tention (Pet. 10-14), does not conflict with any decision

of another court of appeals. Further review is there-

fore not warranted.

The Constitution limits the power of the federal

courts to deciding “Cases” and “Controversies.” U.S.

Const. Art. III, § 2. Standing “is an essential and

unchanging part of the case-or-controversy require-

ment.” Lujan v. Defenders of Wildlife, 504 U.S. 555,

560 (1992). To have standing, a plaintiff must show

8

that he or she has (1) suffered “injury in fact” (2) that

is “fairly . . . trace[able] to the challenged action of

the defendant” and (8) that is “likely” to be “redressed

by a favorable decision.” Jd. at 560-561; accord Allen v.

Wright, 468 U.S. 737, 751 (1984).

As both lower courts held, petitioners failed to show

that they suffered injury traceable to the allegedly

defective notice. Pet. App. 4-5, 23-26. Petitioners

alleged that they suffered a loss of benefits because

they filed new applications rather than appealing the

denial of their prior applications. Petitioners did not

show, however, that their decisions not to pursue

administrative appeals of the determinations denying

their prior applications were based on the denial

notices. If petitioners did not rely on the denial

notices, then any defect in the notices caused them no

harm. Because petitioners failed to show that the

alleged defect in the notices led to their loss of

benefits, the court of appeals correctly held that they

lacked Article III standing.®

8 Petitioners do not challenge the finding of both courts

below that they did not show actual reliance on the allegedly

defective language in the denial notices. In any event, that

concurrent finding by both courts below would not warrant

further review. See, e.g., Goodman v. Lukens Steel Co., 482

U.S. 656, 665 (1987). Although petitioners do not directly chal-

lenge the finding of no reliance, they do include (Pet. 6) in

their statement of facts the portion of petitioner Gilbert’s

deposition testimony that they cited in the courts below as

evidence that she detrimentally relied on the notice. The

district court correctly determined that Gilbert’s testimony did

not concern the language in the notices that petitioners have

challenged in this action; instead, her testimony concerned a

portion of the notice describing the eligibility requirements for

widow disability benefits. See Pet. App. 23.

9

That holding accords with decisions in two other

circuits that, like the present case, involved due

process challenges to SSA’s denial notice. In Burks-

Marshall v. Shalala, 7 F.3d 1346 (1993), the Eighth

Circuit held that the plaintiff lacked standing because

“[s]he ha[d] not shown that the alleged deficiency in

the notice had any connection in fact with her own

failure to seek review of the two early denials.” Jd. at

1349. In Torres v. Shalala, 48 F.3d 887 (1995), the Fifth

Circuit similarly held that the plaintiff “lack[ed]

standing to raise the due process claim” because he

“ha[d] not shown any causal connection between the

allegedly misleading language in the first two notices

and his subsequent failure to seek judicial review.” Id.

at 893.

plaintiff’s standing to challenge SSA’s denial notice,

and the court’s consideration of that challenge on the

& Hospital vy. Halderman, 465 U.S. 89, 119 (1984);

Hagans v. Lavine, 415 U.S. 528, 535 n.5 (1974).°

Nor does the decision below conflict with Day v.

Shalala, 23 F.3d 1052 (6th Cir. 1994). In Day, the

Sixth Circuit held that the denial notice sent to Title

II claimants at the reconsideration stage before

February 1990 violated due process because it did not

adequately explain the preclusive effect of a failure

to appeal. Jd. at 1064-1066. The Sixth Circuit further

® Petitioners likewise err in relying (Pet. 12) on Chris-

topher v. Secretary of HHS, 702 F. Supp. 41 (N.D.N.Y. 1989),

which did not address the standing issue.

10

held, however, that only a “limited number of [the]

class members” defined by the district court were

entitled to relief because of that violation. Jd. at 1066.

It observed that “[tJhe class certified by the District

Court was not well defined” because it “fail[ed] to take

into account the distinctions between the varying

grounds for relief claimed by plaintiffs.” Jd. at 1057.

The Sixth Circuit accordingly provided its own

description of the class entitled to relief (id. at 1066):

[T]he only claimants who could have been injured

* * * are those who detrimentally relied on the

inadequate denial notice. A claimant relied to his

or her detriment on the inadequate notice if he or

she was denied benefits at the reconsideration level

then received the inadequate notice, and thereafter

filed a new application rather than continuing the

appeal process, and then were presented by the

Secretary with a claim of res judicata or received

less in retroactive benefits than he or she would

have had they successfully appealed initially.

Petitioners’ reliance (Pet. 10-11) on this passage to

support their claim of a circuit conflict is misplaced.

For one thing, the passage could be read to require

claimants to show that they filed a new application

“rather than continuing the appeal process” because of

the defective notice. Day, 23 F.3d at 1066; see also id.

at 1060 (excusing failure to exhaust administrative

remedies) (“{TJhe only class members who are entitled

to reopen their claims for benefits are those who

detrimentally relied on the inadequate Title II recon-

sideration denial notices used before February, 1990.

By definition, these class members filed a new

application when they should have continued the appeal .

process.”). So read, the passage in Day is consistent

11

with the decision below. In any event, the passage does

not refer to the plaintiffs’ standing, which the

government did not challenge. Instead, the passage

was intended to delineate that portion of the class

certified by the district court that was entitled to

relief as a result of the court of appeals’ ruling on the

merits. The decision in Day therefore is not binding

on the Sixth Cireuit with respect to the standing issue

presented here.

Petitioners cite (Pet. 11-12), and we are aware of,

only one published decision that supports their claim

- Of standing. In Cuffee v. Sullivan, 842 F. Supp. 1219

(W.D. Mo. 1993), the district court held that the

plaintiff’s mere receipt of a denial notice conferred

Article III standing for a due process challenge to the

notice. Id. at 1225. That holding, however, is no longer

good law in light of the Eighth Circuit’s later decision

in Burks-Marshall.”

Circuit then cited Day for the proposition that “essentially

objective criteria” may be used “to assess whether or not a

fact that the claimant filed her prior application pro se; that

she testified that she did not know how to appeal the denial of

that application; and that she filed anew application “for the

same benefits.” Ibid. It is not clear from the decision below

whether the Tenth Circuit would consider such evidence

sufficient to support an inference of detrimental reliance. In

any event, any tension between the decision below and the

12

2. Petitioners also contend (Pet. 12-17) that the

denial notices that they received violated due process.

The courts below properly declined to address that

contention, having correctly determined that none of

the petitioners met the Article III requirements for

raising it. Review of that contention by this Court

therefore is not warranted.”

3. Petitioner Neal contends (Pet. 17) that the denial

of his application for an EAJA award conflicts with

Commissioner, INS v. Jean, 496 U.S. 154 (1990). That

contention is based on the erroneous assertion (Pet.

17) that the court of appeals “failed to consider the pre-

litigation action of [SSA].” On appeal, petitioner Neal

cited only one pre-litigation action by SSA that he

- claimed showed that the government’s position was not

substantially justified, namely, SSA’s refusal to

reopen his prior claims. Pet. C.A. Br. 29-30. Neal

argued that SSA’s later decision to reopen his claims

showed that its prior refusal to “%» so was not sub-

stantially justified. Jd. at 28. The court of appeals

expressly considered that argument, as well as the

First Circuit’s unpublished decision in Gilbert does not warrant

further review.

1 As petitioners acknowledge (Pet. 16), the versions of

the denial notices that they received are no longer used.

Moreover, SSA has recently announced that it will provide

administrative relief to those individuals who can show that

they relied on certain versions of the denial notices used prior

to March 1990 in deciding to forgo appeals. SSR 95-1p, 60 Fed.

Reg. 20,549 (1995). SSA’s discontinuance of the use of denial

notices like those challenged in this action, and SSA’s provision

of an administrative remedy for claimants who can show

detrimental reliance on those notices, weigh against further

review of petitioners’ contention that the notices violated due

process.

13

evidence in the record concerning the reopening of

Neal’s claims. Pet. App. 6-7 (citing C.A. App. 1118,

1121).” The court correctly held that that evidence did

not impugn SSA’s position for EAJA purposes because

the evidence indicated that the reopening was unre-

lated to petitioners’ due process challenge. Ibid."

2 The evidence consisted of an internal SSA memorandum

concerning the reopening of Neal’s claims. See C.A. App. 1121.

The memorandum stated (ibid.) that Neal’s prior claims could

be reopened under Social Security Ruling 91-5p, 56 Fed. Reg.

29,971 (1991), if at the time of his prior applications he was

unrepresented and lacked the mental capacity to pursue an

administrative appeal.

% The petition suggests (Pet. 6-9, 15-16) that petitioners

Blair, Robinson, and London suffered from mental disorders

that prevented them from understanding their rights when

their prior applications were denied. Although the record con-

tains some evidence that petitioner Robinson was mentally

impaired at the time of the denial of her prior applications (see

Pet. 8-9), any such impairments could not have affected her

ability to pursue administrative review, because she was

represented by legal counsel at all pertinent times. Petitioners

Blair and London have not presented to SSA any claim that

they suffered mental impairments at the time of the denial of

their prior applications that prevented them from pursuing

administrative review. As noted above (note 12, supra), SSA

could consider such claims under SSR 91-5p. Because pe-

titioners Blair and London have not exhausted their

administrative remedies on that issue, it may not be raised

here. See Weinberger v. Salfi, 422 U.S. 749, 765 (1975); Parisi

v. Davidson, 405 U.S. 34 (1972); McKart v. United States, 395

U.S. 185 (1969).

14

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DREW S. Days, III

Solicitor General

FRANK W. HUNGER

Assistant Attorney General

WILLIAM KANTER

LOWELL V. STURGILL JR.

Attorneys

JUNE 1995