Maria Haseeb v. Nancy Berryhill , 691 F. App'x 391 ( 2017 )

FILED
NOT FOR PUBLICATION
MAY 22 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIA HASEEB, No. 16-15226
Plaintiff-Appellant, D.C. No. 3:15-cv-03931-LB
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Laurel D. Beeler, Magistrate Judge, Presiding
Submitted May 18, 2017**
Before: D.W. NELSON, TROTT, and OWENS, Circuit Judges.
Maria Haseeb appeals the district court’s dismissal as untimely of her
complaint seeking review of the Commissioner of Social Security’s denial of her
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
application for supplemental security income under Title XVI of the Social
Security Act. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The complaint was late because it was filed more than sixty-five days after
the Appeals Council’s decision of March 26, 2015. See 42 U.S.C. § 405(g) (setting
forth a sixty-day statute of limitations running from the date of a final decision of
the Commissioner). Counting sixty days plus five days for receipt of the Appeals
Council’s decision, pursuant to 20 C.F.R. § 422.210(c), the complaint was due by
June 1, 2015. Haseeb, however, did not file it until August 27, 2015.
Haseeb contends that the Appeals Council’s decision was not a final
decision because her request for an extension of time was pending, and the Appeals
Council therefore retained jurisdiction, until November 19, 2015. The Appeals
Council’s decision whether to grant an extension of time, however, is discretionary
and therefore non-final for purposes of the sixty-day deadline. See 42 U.S.C.
§ 405(g) (providing that complaint must be filed within sixty days “or within such
further time as the Commissioner of Social Security may allow”); Klemm v Astrue,
543 F.3d 1139, 1144 (9th Cir. 2008) (holding that ALJ’s discretionary denial of an
untimely motion to reopen was not final and reviewable). The Appeals Council’s
August 7, 2015 denial of Haseeb’s request for reconsideration also did not amount
to a new final decision of the Commissioner. See Banta v. Sullivan, 925 F.2d 343,
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344-45 (9th Cir. 1991) (holding that Appeals Council’s denial of a request to
reopen or vacate its previous decision was not a new final decision and did not
restart the sixty-day period for filing a district court action).
Haseeb also has not established a colorable claim of a denial of due process.
See Dexter v. Colvin, 731 F.3d 977, 980 (9th Cir. 2013). She contends that the
Appeals Council’s delay in denying her request for an extension of the sixty-day
time limit until a date well after the sixty days had expired prevented her from
timely filing her complaint because she reasonably relied on the Appeals Council’s
general practice of not ruling until after the deadline but then granting such
requests. These circumstances do not establish a colorable claim of the denial of a
meaningful opportunity to be heard or to seek reconsideration of an adverse
benefits determination. See Klemm, 543 F.3d at 1144 (holding that a due process
claim is colorable if it is not wholly insubstantial, immaterial, or frivolous); Udd v.
Massanari, 245 F.3d 1096, 1099 (9th Cir. 2001) (holding that due process requires
that a claimant receive meaningful notice and an opportunity to be heard before her
claim for disability benefits may be denied).
AFFIRMED.
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