FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                       October 21, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
EVA SILVA,

             Plaintiff-Appellant,

v.                                                         No. 14-1097
                                                 (D.C. No. 1:12-CV-02712-CMA)
CAROLYN W. COLVIN, Acting                                   (D. Colo.)
Commissioner of the Social Security
Administration,

             Defendant-Appellee.


                            ORDER AND JUDGMENT*


Before GORSUCH, O’BRIEN, and PHILLIPS, Circuit Judges.




      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      Ms. Silva applied for social security disability benefits in 1993, claiming she

was unable to work because of pain in her back, head, right wrist, and right leg.

After the Commissioner found her not disabled, she filed suit. The federal district

court reversed and remanded because the Commissioner’s decision was not supported

by substantial evidence.

      On remand, an administrative law judge conducted a hearing and again found

that Ms. Silva was not disabled. The agency mailed a notice to Ms. Silva and her

attorney in November 2004, explaining that the decision was final and that Ms. Silva

had sixty days to file a civil action. But Ms. Silva did not seek judicial review.

Instead, in 2006, she filed another disability benefits application. The Commissioner

denied the application on the basis of res judicata. Ms. Silva unsuccessfully sought

judicial review and then appealed to this court.

      Before us, Ms. Silva argues that the application of res judicata was flawed

because the “implications of [Social Security Ruling (SSR)] 91-5[p]” were not

considered. Aplt. Opening Br. at 10. That ruling provides that res judicata does not

arise from a prior administrative decision if the claimant sought in writing to extend

the period for filing a request for review and provided “good cause for missing the

deadline.” SSR 91-5p, 

, at *1 (July 1, 1991). But Ms. Silva did not

seek to extend the filing period. Thus, SSR 91-5p is not an impediment to the

application of res judicata.




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      Alternatively, Ms. Silva raises a due-process challenge to the Commissioner’s

November 2004 notice. To prevail on a procedural due-process theory in the

social-security context, the claimant “must demonstrate that the adjudication was

infected by some prejudicial, fundamentally unfair element.” Mays v. Colvin,

, 573 (10th Cir. 2014) (internal quotation marks omitted). In an effort to

meet this standard, Ms. Silva points out that the notice was in English, without

translation to her native Spanish, and that the notice was addressed to the wrong post-

office box for her attorney. But in the district court Ms. Silva argued only that she

was denied due process because the notice was in English. Thus, the question

whether her attorney received the notice was not preserved for our review. See Crow

v. Shalala, 

, 324 (10th Cir. 1994). Neither do we discern a due-process

violation from the fact that the notice was in English. “Notice in the English

language to social security claimants residing in the United States is reasonably

calculated to apprise individuals of the proceedings.” Soberal-Perez v. Heckler,

, 43 (2d Cir. 1983) (internal quotation marks omitted). Indeed, Ms.

Silva’s “inability to understand the notice was readily remediable by obtaining an

accurate translation at her Social Security office.” Rosario v. Schweiker,

, 120 (E.D.N.Y. 1982). Further, it appears Ms. Silva did receive

assistance from her daughter on this score. See Aplt. App. 2, Vol. I at 89.




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      The judgment of the district court is affirmed. Ms. Silva’s motion to proceed

in forma pauperis is granted.

                                              Entered for the Court


                                              Neil M. Gorsuch
                                              Circuit Judge




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