Schuff

MEMORANDUM **

Cheryl Schuff appeals the district court’s order granting summary judgement in favor of the Commissioner and denying Schuffs cross motion for summary judgment. We have jurisdiction under 28 U.S.C. § 1291 . We affirm.

Judicial review of the Commissioner’s failure to reopen Schuffs previous claim is not available because there is no constitutional right to representation at Social Security proceedings. See Califano v. Sanders, 430 U.S. 99, 107-09 , 97 S.Ct. 980 , 51 L.Ed.2d 192 (1977) (judicial review of failure to reopen available only where claimant raises colorable constitutional claim); cf. United States v. Riverar-Sillas, 417 F.3d 1014, 1018 (9th Cir.2005) (“A deportation proceeding is administrative in nature and is not accompanied by a right to counsel.”). Additionally, there was no de facto reopening because the Administrative Law Judge (“ALJ”) did not consider “on the merits” the issue of the Schuffs disability during the previously adjudicated period. See Lester v. Chater, 81 F.3d 821 , 827 n. 3 (9th Cir.1995).

Although Schuff was not represented by counsel at her previous proceedings, the ALJ’s application of res judicata was appropriate. The record from…