Plaintiff Ronald Boock sued in the United States District Court for the District of Minnesota 1 for review of the Secretary of Health and Human Services’ (“HHS”) refusal to reopen his 1983 application for disability benefits under the Social Security Act, 42 U.S.C. § 423 (1988). He now appeals from the district court’s order dismissing the case for lack of subject matter jurisdiction. We affirm.
I.
Boock applied for disability benefits in 1983 and again in 1986, alleging that he had been disabled following a work-related chemical spill in 1980. Both times, his application was initially denied. Along with each denial came a notice, informing Boock of his right to request reconsideration. The notice to the 1988 denial read:
If you believe that this determination is not correct, you may request that your case be re-examined. If you want this reconsideration, you must request it not later than 60 days from the date you receive this notice.
The notice to the 1986 denial read substantially the same, except for the following additional language:
If you wait more than 60 days, you must give us a good reason for the delay.... If you do not request reconsideration within the 60-day time limit, you still have the *350 right to file another application at any time.
Following the 1983 and 1986 denials, Boock did not seek administrative review.
Boock again applied for disability benefits in 1988. Again, his application was initially denied. This time, however, Boock sought review, presenting additional evidence of his alleged disability. After a hearing, an administrative law judge (“ALJ”) determined that Boock had suffered from severe bipolar syndrome, depression and hypomania since 1980. Accordingly, the ALJ found Boock had been disabled within the meaning of the statute and granted Boock benefits based on his 1988 application. The Act allows retroactive disability benefits for a period of up to one year prior to the date of application. See 42 U.S.C. § 423(b) (1988); 20 C.F.R. § 404.621(a)(1)© (1994). Thus, in granting benefits based on the 1988 application, the ALJ granted retroactive benefits only as far back as 1987, even though he had determined that Boock had been disabled since 1980. The ALJ did not address Boock’s previous 1983 or 1986 claims, neither of those applications having been included in the materials submitted to the ALJ.
Boock’s attorney subsequently wrote to the SSA’s Appeals Council, asking it to reopen Boock’s 1983 application in light of the ALJ’s determination that he had been disabled since 1980. In asking for a reopening of his 1983 application, Boock in effect sought additional retroactive benefits going back to 1982. Boock cited two provisions of the HHS regulations which provide for reconsideration of administratively final decisions. The first, 20 C.F.R. § 404.988 (1994), provides that the SSA may reopen an otherwise final decision: (a) for any reason, within 12 months of the notice of the initial determination; (b) for “good cause”, within four years of the notice of the initial determination; and (c) at any time, if the ease falls within a number of very specific situations (for example, if there was a material clerical error in the evidence submitted). Id. The second, 20 C.F.R. § 404.909 (1994), provides that the SSA may at any time grant an extension of time to file a request for reconsideration of an otherwise administratively final decision if there is “good cause” for the individual’s failure to have requested reconsideration within the applicable time limit.
The Appeals Council denied Booek’s request, finding that his 1983 application qualified for neither a “reopening” under 20 C.F.R. § 404.988 nor an “extension” under 20 C.F.R. § 404.909. The Appeals Council accepted the findings of the ALJ. It went on to rule that a reopening was unwarranted since: (1) more than four years had elapsed since the denial of the 1983 application and, even though good cause (in the form of new evidence) existed, reopening under that provision was not available; and (2) Boock did not fall within any of the narrow provisions for reopening after four years. The Appeals Council also found that an extension was unwarranted since there was no good cause for Boock’s failure to have appealed from the 1983 denial, as Boock’s impairment at the time did not prevent him from understanding his appeal rights.
The Appeals Council did, however, sua sponte construe Boock’s 1988 application as an implied request to reopen his 1986 application. Finding that new evidence provided good cause to reopen within 20 C.F.R. § 404.988(b) (1994), and that the implied request to reopen the 1986 application (unlike the request to reopen the 1983 application) was made within four years of the notice of the initial determination, the Appeals Council granted Boock benefits from his 1986 application.
Boock then brought the present action in the United States District Court for the District of Minnesota, seeking review of the Appeals Council’s denial of his petitions to reopen his 1983 application and to extend time for filing a request for reconsideration of that application. The Secretary moved to dismiss, alleging lack of subject matter jurisdiction. Boock opposed the motion and moved for summary judgment. The magistrate judge recommended granting the Secretary’s motion. The district court adopted the magistrate’s recommendation and dismissed for lack of subject matter jurisdiction, holding: (1) that a refusal to reopen an application for disability benefits or to extend time to file an appeal is not a “final decision” *351 reviewable by the district court; and (2) that Boock had failed to allege a colorable constitutional claim sufficient to provide-a basis for jurisdiction. This appeal followed.
II.
A federal district court’s jurisdiction to review the Secretary’s decisions regarding disability benefits is governed by 42 U.S.C. § 405(g), which provides review only of á “final decision of the Secretary made after a hearing.” 42 U.S.C. § 405(g) (1988). However, if jurisdiction is not available under § 405(g), the district court may also review the Secretary’s decision if the plaintiff alleges a colorable claim of unconstitutionality.
See Califano v. Sanders,
We agree with the district court that subject matter jurisdiction is lacking under 42 U.S.C. § 405(g). It is well-settled that the Secretary’s refusal to reopen an administratively final decision under 20 C.F.R. § 404.988 is not a “final decision ... made after a hearing” subject to judicial review under § 405(g).
See Sanders,
To avoid the weight of the above precedent, Boock seeks to bring this suit within a line of cases carving out a narrow exception to the above rule. Under these cases, where the Secretary, in denying a request for reopening an earlier application, nevertheless addresses the merits of that application, the application' can be treated as having been “constructively reopened” as a matter of administrative discretion. A district court may then review the Secretary’s refusal to reopen the application, to the extent that it addresses the merits.
See Jelinek v. Heckler,
We do not agree. We believe that the
Jelinek
exception does not apply here, as there is no indication that the Secretary ever addressed the merits of the 1983 claim in denying Boock’s petition to reopen. First, we must make clear what “decision” under 42 U.S.C. § 405(g) we are asked to review. We are plainly not asked to review the Secretary’s favorable decision on the merits of Boock’s 1988 application. Rather, we are asked to review the Secretary’s decision to deny Boock’s petition to reopen his 1983 application, a petition that he raised for the first time before the Appeals Council.
3
In denying that petition, the Secretary never
*352
addressed the merits of the 1983 claim. Instead, the Appeals Council simply found: (1) that more than four years had elapsed since denial of the claim; and (2) that the claim did not fall within any of the specific provisions for reopening beyond four years.
4
As the Secretary never reached the merits of the 1983 claim in denying Boock’s petition, jurisdiction over that decision cannot rest on a theory of constructivé reopening.
See Hudson,
Boock also seeks to premise jurisdiction on the narrow exception for colorable constitutional claims. Boock alleges that the notice he received following the denial of his 1983 application violated his right to procedural due process in that it failed to state that the decision would be final if not appealed. However, the 1983 notice very clearly states: “If you want this reconsideration, you
must
request it not later than 60 days” (emphasis added). The language is unqualified and clearly indicates that a decision will be final if not appealed.
5
Cf. Davis v. Sullivan,
Boock’s alternative due process argument is similarly meritless. Boock argues that, even if the notice was not per se insufficient, it was insufficient as applied to him, given his mental impairment at the time.
See, e.g., Schrader v. Harris,
The district court dismissed Boock’s two constitutional claims for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), finding them not colorable. Although clearly meritless, these claims were probably not so patently frivolous as to fail to confer jurisdiction upon the district court.
See Bell v. Hood,
We therefore affirm the district court’s dismissal of this case.
Affirmed.
Notes
. The Honorable Diana E. Murphy, Chief Judge, United States District Court for the District of Minnesota.
. We review the district court's determination on this issue of law
de novo. See Schneider v. United States,
. The Appeals Council expressly noted that it was addressing only Boock's request for a reopening, and that there was no basis for reviewing the ALJ’s favorable decision on the 1988 -claim. Similarly, in his letter to the Appeals Council, Boock’s counsel stated: "Since the August 1983 application was not included in the material submitted to the ALJ, it is not affected by the ALJ decision and it is proper to address it now."
. Nor did the ALJ reach the merits of the 1983 application in his consideration of the 1988 application. The record indicates that the ALJ was unaware of the prior application and that the record before him contained no mention of it. Although the ALJ might have considered some of the same evidence that had been submitted along with the 1983 application, "the mere allowance of evidence from the earlier applications, without more, cannot be considered a reopening of the earlier case."
Burks-Marshall v. Shalala,
. Boock also points to language from the 1986 notice, which seems to suggest that a claimant may appeal beyond sixty days if he or she has "a good reason.” The notice also indicates that a claimant “still [has] the right to file another application at any time” if he or she chooses not to appeal. Some courts have held that such language violates the due process clause.
See, e.g., Penner v. Schweiker,
. Although Boock has alleged that he was preju- • diced by the 1986 notice (in that he filed another application instead of an appeal), that notice, as . explained in the note supra is irrelevant for the purposes of this case.
. As the Appeals Council noted in finding that there was no good cause for an extension, the record indicates, and Boock concedes, that, at the time he received the 1983 notice, Boock was enrolled in college and actively participated in a number' of family activities. Thus despite his mental impairment, there is little evidence to suggest that he was so impaired that he could not understand the 1983 notice.
. The cases cited by Boock are inapposite. These cases hold that due process is violated when the Secretary applies administrative res judicata to bar a later claim ex parte, without considering whether the claimant, in failing to appeal the earlier claim, had the mental capacity to understand the notice.
See Lewellen v. Sullivan,