Sharon Marie Puente v. John J. Callahan, Acting Commissioner of Social Security, 117 F.3d 1428, 10th Cir. (1997)
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Scribd Government DocsSharon Marie Puente v. John J. Callahan, Acting Commissioner of Social Security, 117 F.3d 1428, 10th Cir. (1997)
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Scribd Government Docs117 F.
3d 1428
97 CJ C.A.R. 1275
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
SHARON MARIE PUENTE, Plaintiff-Appellant,
v.
JOHN J. CALLAHAN, Acting Commissioner of Social
Security,*
Defendant-Appellee.
No. 97-1056.
United States Court of Appeals, Tenth Circuit.
July 18, 1997.
Before BRORBY, BARRETT, and MURPHY, Circuit Judges.
1ORDER AND JUDGMENT**
2
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination
of this appeal. See Fed.R.App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore
ordered submitted without oral argument.
Plaintiff-appellant Sharon Marie Puente appeals the district court's dismissal of
her complaint for failure to state a claim upon which relief can be granted. We
affirm.
In July 1968, plaintiff began receiving mother's insurance benefits based on the
wage-earning record of her deceased husband. In 1981, Congress amended the
Social Security Act to terminate mother's insurance benefits when the youngest
child turned sixteen, rather than eighteen. In May 1984, when plaintiff's
youngest child turned sixteen, the Social Security Administration (SSA) sent
plaintiff a notice that her benefits would terminate, informing her that she could
request reconsideration within sixty days. Plaintiff claims she never received
this notice, which was sent to her address in Boulder, Colorado, because she
was either in Michigan or New Mexico at the time. Plaintiff did not appeal the
termination of her mother's benefits. In May 1995, when plaintiff sought
reconsideration of the 1984 termination, her request was denied because she
failed to appeal within sixty days after being notified of the termination.
5
In April 1993, plaintiff applied for and received Supplemental Security Income
(SSI) benefits based on a diagnosis of chronic fatigue syndrome. Over the next
year plaintiff received a series of letters adjusting her benefit amount to reflect
in-kind income and overpayments. Plaintiff appealed the calculation of her
chargeable income in two respects, disputing the SSA's determination that she
received free rent from her daughter in May 1993 and that she received in-kind
income by living in a room provided by her employer from October 1993 to
March 1994. After a hearing, an Administrative Law Judge found that plaintiff
should not be charged with in-kind income for May 1993, but that the in-kind
income from October 1993 to March 1994 and all other income attributed to
plaintiff were correct. Plaintiff did not appeal this decision.
In April 1996, plaintiff brought this action against the Commissioner of Social
Security, requesting review of the Commissioner's decisions regarding her SSI
benefits and the termination of her mother's benefits. Plaintiff claimed that the
SSA negligently calculated her SSI benefit amounts, causing her damage; that
termination of her vested mother's benefits was unlawful; and that she had been
deprived the right to appeal the termination of her mother's benefits by the
SSA's negligence in sending the notice to the Boulder address, and in informing
her she had no right of appeal. The district court dismissed the action for failure
to state a claim upon which relief could be granted.
On appeal, plaintiff raises the same arguments, and also alleges that she has
been libeled by the SSA's findings of chargeable income and by a mental illness
diagnosis in her medical record. We do not address the libel issues as they were
not presented to the district court. See Crow v. Shalala, 40 F.3d 323, 324 (10th
Cir.1994) (holding we do not consider issues raised for first time on appeal
absent compelling reasons). We review de novo the district court's dismissal of
plaintiff's complaint for failure to state a claim upon which relief can be
granted. See Chemical Weapons Working Group, Inc. (CWWG) v. United
States Dep't of the Army, 111 F.3d 1485, 1490 (10th Cir.1997). A complaint
fails to state a claim if, taking the well-pleaded allegations as true and
construing them in the light most favorable to plaintiff, no relief can be granted
based on a dispositive issue of law. See Neitzke v. Williams, 490 U.S. 319,
326-27 (1989).
8
Defendant argues that plaintiff failed to exhaust either her claim regarding the
SSI benefit adjustments or her claim regarding termination of the mother's
benefits. Plaintiff's claim regarding the SSA's handling of her SSI benefits
appears to allege negligence under the Federal Tort Claims Act. Such a claim is
not cognizable, however, because 42 U.S.C. 405(g), which does not contain a
damages remedy, is the exclusive method "to recover on any claim arising
under" the Social Security Act. 42 U.S.C. 405(h); see Weinberger v. Salfi,
422 U.S. 749, 756-61 (1975) (holding 405(h) bars federal-question
jurisdiction of any claim arising under Social Security Act except pursuant to
405(g)); Tallman v. Reagan, 846 F.2d 494, 495 (8th Cir.1988) (holding
damages action for negligent handling of disability claim under FTCA fails to
state a claim because barred by Social Security Act); see also Schweiker v.
Chilicky, 487 U.S. 412, 424-25, 429 (1988) (noting that Social Security Act
does not contain a "remedy in damages for emotional distress or for other
hardships suffered" from mishandling of claim, and refusing to create Bivens
remedy).
Examining plaintiff's SSI claim under 405(g), we agree that plaintiff failed to
exhaust the claim because she did not seek review before the Appeals Council.
Section 405(g) authorizes judicial review of "final decisions" only, that is,
decisions that have been appealed through all steps of the administrative review
process. See Bowen v. City of New York, 476 U.S. 467, 482 (1986) ("To
obtain a final decision from the [Commissioner] a claimant is required to
exhaust h[er] administrative remedies by proceeding through all three stages of
the administrative appeals process."); 20 C.F.R. 416.1455 (providing
administrative law judge's decision binding unless appealed to Appeals
Council).
10
Nor has the exhaustion requirement been excused. The Commissioner has not
waived the requirement, and we, as a reviewing court, do not find waiver
appropriate, as petitioner has not raised a constitutional or statutory claim
wholly collateral to her substantive claim of entitlement. See Heckler v. Ringer,
466 U.S. 602, 617-18 (1984); Mathews v. Eldridge, 424 U.S. 319, 330-31 & n.
11 (1976); see also Reed v. Heckler, 756 F.2d 779, 784-85 (10th Cir.1985)
(applying exhaustion exception to collateral statutory claims). Thus the district
court properly dismissed plaintiff's claim regarding the adjustments to her SSI
benefits.
11
The dismissal of plaintiff's claim regarding termination of her mother's benefits
11
was also proper. Procedurally, it appears that plaintiff is appealing the
Commissioner's refusal to reopen her claim, a decision over which we have no
jurisdiction. See Califano v. Sanders, 430 U.S. 99, 107-09 (1977). Even if
plaintiff's claim is viewed as an appeal of her benefit termination, however, and
even assuming that the exhaustion and statute of limitations requirements would
be excused, plaintiff has failed to state a claim because Congress did not impair
any vested rights by amending the Social Security Act to eliminate mother's
benefits after a mother's youngest child attained the age of sixteen. See, e.g.,
Bowen v. Gilliard, 483 U.S. 587, 604-05 (1987) (holding that congressional
reduction of social welfare benefits, or even elimination of such benefits, does
not constitute a "taking" of private property); Bowen v. Public Agencies
Opposed to Soc. Sec. Entrapment, 477 U.S. 41, 52, 55 (1986) (holding Social
Security Act created no contractual rights, permitting Congress to alter its
provisions without effecting a "taking" under the Fifth Amendment); Flemming
v. Nestor, 363 U.S. 603, 608-11 (1960) (holding that right to social security
benefits is not a contractual property right, and that Congress could amend
Social Security Act to eliminate accrued benefits so long as governmental
action not arbitrary). As plaintiff does not argue that the amendment was
arbitrary, but simply that it was unauthorized and unjust, she has not stated a
claim upon which relief can be granted.
12
The judgment is AFFIRMED. Plaintiff's outstanding motions to submit
additional evidence and for oral argument are DENIED. The mandate shall
issue forthwith.
Entered for the Court
Effective March 31, 1995, the functions of the Secretary of Health and Human
Services in social security cases were transferred to the Commissioner of Social
Security. P.L. No. 103-296. Pursuant to Fed.R.App.P. 43(c), John J. Callahan,
Acting Commissioner of Social Security, is substituted for Donna E. Shalala,
Secretary of Health and Human Services, as the defendant in this action
**
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir.R. 36.3
