Joseph S. Samuel, Isenberg, Moulds & Samuel, Sacramento, Cal., for plaintiff-appellant.

Jerry J. Bassett, Asst. Regional Atty., Sacramento, Cal., for defendant-appellee; Malcolm Segal, Sacramento, Cal., Andrew E. Wakshul, Atty., Baltimore, Md., on brief.

Appeal from the United States District Court for the Eastern District of California.

Before ALARCON and NELSON, Circuit Judges, and SOLOMON,* District Judge.

Pamela J. Davis filed an action in the district court to review the refusal of the Secretary of Health and Human Services1 to reopen Davis' application for disability benefits which the Secretary denied. Davis also sought review of the Secretary's denial of a later application on grounds of administrative res judicata.

The district court adopted the recommendation of the Magistrate and dismissed the action on both claims. Davis appeals. We affirm.

Davis is a married woman and has three children. She has a high school education; she worked as a bank teller and secretary before 1968. She last met the special earnings requirement for entitlement to disability benefits on December 31, 1968.

Davis first filed for disability benefits on November 6, 1973. She had surgery in 1960 and again in 1973 for spinal pain. Her application was denied because she had failed to prove that she was disabled in 1968, when her eligibility for disability benefits expired. She was told that she could seek reconsideration within six months. When she did not ask for reconsideration or a hearing, the decision denying her application became final.

In 1977, Davis filed a second application for disability benefits. This claim was denied initially and upon reconsideration Davis requested a hearing. The administrative law judge (ALJ) treated her 1977 application as a petition to reopen under 20 C.F.R. § 404.957 and § 404.958 (1978).2 The ALJ dismissed her request for hearing under 20 C.F.R. § 404.937 (1978)3 on the grounds of administrative res judicata. Davis submitted medical reports which indicated that her recurrent back pain did not appear to be affected by conservative treatment and noted the possibility of a third surgery.

In Califano v. Sanders, 430 U.S. 99, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977), the Supreme Court rejected a claimant's argument that 42 U.S.C. § 405(g) (1976)4 and 42 U.S.C. § 405(h) (1976)5 confer jurisdiction on federal courts to review the Secretary's decision not to reopen a previously adjudicated claim for social security benefits. Once a decision becomes administratively final, the Secretary's decision to reopen a claim is purely discretionary. These discretionary decisions are not "final" decisions within the meaning of § 405(g) because

an interpretation that would allow a claimant judicial review simply by filing-and being denied-a petition to reopen his claim would frustrate the congressional purpose ... to impose a 60 day limitation upon judicial review of the Secretary's final decision on the initial claim for benefits.

Sanders, 430 U.S. at 108, 97 S.Ct. at 986, 51 L. Ed. 2d at 201.

In a case procedurally identical to this case, the First Circuit affirmed the district court stating "(a) purely discretionary hearing such as that held here for purposes of receiving allegedly new and material evidence is not a 'hearing' within the meaning of § 405(g)." Rios v. Secretary of HEW, 614 F.2d 25, 26 (1st Cir. 1980).

Other circuits have extended the reasoning of Sanders to preclude review of a dismissal on the basis of a denial of a motion to reopen. Such refusals to reopen and determinations that a claim is res judicata are not reviewable. See Hensley v. Califano, 601 F.2d 216 (5th Cir. 1979); Carney v. Califano, 598 F.2d 472 (8th Cir. 1979); Matos v. Secretary of HEW, 581 F.2d 282 (1st Cir. 1978). Cf. Peterson v. Califano, 631 F.2d 628 (9th Cir. 1980) (refusing to review order denying extension of filing period for appeals).

Davis asserts the failure of the ALJ to consider new evidence brings her claim within the "manifest injustice" exception to administrative res judicata. See Grose v. Cohen, 406 F.2d 823 (4th Cir. 1969). There is no merit in this contention. The only new evidence presented was one 1978 medical report which indicated that Davis might have been disabled ten years before but this observation was not supported by any clinical evidence.

Equally without merit is Davis' contention that her claim falls within the constitutional question exception to administrative res judicata. See Sanders, 430 U.S. at 109, 97 S.Ct. at 986, 51 L. Ed. 2d at 201-02. Her constitutional allegation was purely conclusory, unsupported by facts, and is insufficient to withstand summary judgment. Guadalupe Organization Inc. v. Tempe Elementary School Dist., 587 F.2d 1022 (9th Cir. 1978).

In Matos v. Secretary of HEW, 581 F.2d at 286, the court held, "In light of the rationale in Sanders we hold that this Court is without jurisdiction to examine appellant's claim which was denied as res judicata." That holding is equally applicable here.

AFFIRMED.