Jeffrey Szilagyi v. Nancy Berryhill , 690 F. App'x 1003 ( 2017 )

FILED
NOT FOR PUBLICATION
MAY 17 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFREY SZILAGYI, No. 16-35057
Plaintiff-Appellant, D.C. No. 3:15-cv-01054-KI
v.
MEMORANDUM*
NANCY A. BERRYHILL,** Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Submitted May 15, 2017***
Before: D.W. NELSON, TROTT, and OWENS, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** Nancy A. Berryhill is substituted for her predecessor as Acting
Commissioner of the Social Security Administration. Fed. R. App. P. 43(c)(2).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Jeffrey Szilagyi appeals the district court’s dismissal for lack of jurisdiction
of his complaint seeking review of the Commissioner of Social Security’s
dismissal of his request for a hearing before an administrative law judge (“ALJ”)
on his applications for disability insurance benefits and supplemental security
income under Titles II and XVI of the Social Security Act. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
As Szilagyi acknowledges, the Commissioner’s dismissal of his hearing
request as untimely was not an appealable final agency decision under 42 U.S.C.
§ 405(g). See Dexter v. Colvin, 731 F.3d 977, 980 (9th Cir. 2013). Szilagyi also
did not establish the district court’s jurisdiction by alleging a colorable
constitutional claim. See id. Unlike in Dexter, the ALJ addressed Szilagyi’s
proffered reason for failing to file a timely request for a hearing—his attorney’s
failure to receive notice. Cf. id. at 980-82 (holding that claimant stated a colorable
claim that the ALJ violated due process by failing to address claimant’s proffered
reasons for filing a late request for a hearing when those reasons were listed as
examples of good cause in 20 C.F.R. § 404.911(b)).
Szilagny does not contend that he did not receive notice of the dismissal;
rather, he argues that he was denied constitutionally sufficient notice because his
counsel did not receive notice until May 2014 and then received an undated notice.
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The alleged lack of notice to counsel does not establish a colorable due process
claim. The regulations provide for notice to the claimant himself. 20 C.F.R.
§§ 404.901, 416.1401 (defining “[d]ate you receive notice”), 404.933(b),
416.1433(b). The fact that the regulations also require notice to counsel, 20 C.F.R.
§ 404.1715(a)(1) & (b), does not establish that Szilagyi was denied “meaningful
notice” sufficient to trigger the 60-day deadline for requesting a hearing before an
ALJ. See 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 his claim for disability benefits may be denied).
On the whole, Szilagyi fails to make this showing. Szilagyi does not allege
that he did not receive notice or that his notice was sent to an incorrect address.
See Popa v. Holder, 571 F.3d 890, 897-98 (9th Cir. 2009) (holding that a notice of
deportation hearing sent by regular mail to the last address provided by an
individual satisfies the requirements of due process). He also makes no allegation
that any mental impairment or other circumstance prevented him from
understanding the notice of denial of reconsideration and complying with the 60-
day time limit. Cf. Udd, 245 F.3d at 1102 (finding a denial of due process
regarding a notice of termination of benefits when claimant lacked the mental
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capacity to understand the termination of his benefits and to take the steps
necessary to pursue an appeal).
The lack of a date on the notice received by Szilagyi’s counsel also does not
establish a colorable due process claim. See Klemm v. Astrue, 543 F.3d 1139, 1144
(9th Cir. 2008) (holding that claimant must allege “facts sufficient to state a
violation of substantive or procedural due process” (citation omitted)). The
hearing request was untimely, even if the notices of denial of reconsideration were
sent as late as the date from the stamp on counsel’s copy of the notice. See 20
C.F.R. §§ 404.933(b)(1) & 416.1433(b) (providing that hearing request must be
filed within 60 days after receipt of notice); Holohan v. Massanari, 246 F.3d 1195,
1209-1210 (9th Cir. 2001) (holding that plaintiff must show injury resulting from
alleged procedural due process violation). We therefore affirm the district court’s
judgment.
AFFIRMED.
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