Mike Yellen v. Andrew Saul ( 2020 )

FILED
NOT FOR PUBLICATION
SEP 10 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIKE YELLEN, No. 19-16646
Plaintiff-Appellant, D.C. No.
1:18-cv-00422-ACK-RT
v.
ANDREW M. SAUL, Commissioner of MEMORANDUM*
Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Hawaii
Alan C. Kay, District Judge, Presiding
Submitted September 8, 2020**
San Francisco, California
Before: GRABER, BYBEE, and N.R. SMITH, Circuit Judges.
Mike Yellen appeals pro se the district court’s dismissal of his action
*
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).
challenging the constitutionality of the earnings requirement of Title II of the
Social Security Act, which requires individuals to have worked and paid Social
Security taxes for a certain number of years in order to qualify for Social Security
Disability Insurance Benefits (“DIB”). Yellen alleges that he was unable to meet
the earnings requirement because he was incarcerated. We have jurisdiction under
18 U.S.C. § 1291, and we affirm.
We review de novo the district court’s dismissal for lack of subject matter
jurisdiction. Dexter v. Colvin, 731 F.3d 977, 980 (9th Cir. 2013). Yellen did not
exhaust his administrative remedies, which is a requirement when filing a suit
challenging the denial of an application for DIB. See 42 U.S.C. § 405(g); Dexter,
731 F.3d at 980. The district court properly concluded that Yellen did not meet the
exception to the exhaustion requirement because he did not raise a colorable
constitutional claim that the earnings requirement violates equal protection by
treating him less favorably than an equally disabled claimant who was not
imprisoned and thus able to earn a qualifying income. See Hoye v. Sullivan, 985
F.2d 990, 991 (9th Cir. 1992) (per curiam) (judicial review without exhaustion of
administrative remedies is available if the claimant shows that his constitutional
claim is (1) collateral to his benefits claim, (2) colorable, and (3) “one whose
resolution would not serve the purposes of exhaustion”) (internal citations
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omitted). As we held in Harvell v. Chater, 87 F.3d 371, 373 (9th Cir. 1996) (per
curiam), the earnings requirement comports with the Due Process Clause of the
Fifth Amendment because it is rationally based and free from invidious
discrimination.
The district court also properly dismissed Yellen’s claim of disability
discrimination in violation of Title II of the Americans with Disabilities Act
because such a claim may not be brought to recover on a claim for DIB. See 42
U.S.C. § 405(h).
AFFIRMED.
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