* Effective March 31, 1995, the functions of the Secr etary of Health and

Human Services in social security cases were transf erred to the Commissioner of Social Security. P.L. No. 103-296. Pursuant to Fe d. R. App. P. 43(c), John J. Callahan, Acting Commissioner of Social Security, i s 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** This order and judgment is not binding precedent, e xcept under the doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 18 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

SHARON MARIE PUENTE,

Plaintiff-Appellant,

v. JOHN J. CALLAHAN, Acting Commissioner of Social Security, *

Defendant-Appellee. No. 97-1056 (D.C. No. 96-K-924) (D. Colo.)

ORDER AND JUDGMENT **

Before BRORBY, BARRETT, and MURPHY, Circuit Judges.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase 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 c laim upon which relief can be granted. We affirm. In July 1968, plaintiff began receiving mother’s in surance benefits based on the wage-earning record of her deceased husband. I n 1981, Congress amended the Social Security Act to terminate mother’s insur ance benefits when the youngest child turned sixteen, rather than eighteen . In May 1984, when plaintiff’s youngest child turned sixteen, the Soci al Security Administration (SSA) sent plaintiff a notice that her benefits wou ld 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 tim e. Plaintiff did not appeal the termination of her mother’s benefits. In May 1 995, when plaintiff sought reconsideration of the 1984 termination, her reques t was denied because she failed to appeal within sixty days after being noti fied of the termination.-3-

In April 1993, plaintiff applied for and received S upplemental Security Income (SSI) benefits based on a diagnosis of chron ic fatigue syndrome. Over the next year plaintiff received a series of letter s adjusting her benefit amount to reflect in-kind income and overpayments. Plaintiff appealed the calculation of her chargeable income in two respects, disputing th e SSA’s determination that she received free rent from her daughter in May 1993 an d that she received in-kind income by living in a room provided by her employerfrom October 1993 to March 1994. After a hearing, an Administrative LawJudge found that plaintiff should not be charged with in-kind income for May 1 993, but that the in-kind income from October 1993 to March 1994 and all othe r income attributed to plaintiff were correct. Plaintiff did not appeal t his decision. In April 1996, plaintiff brought this action agains t the Commissioner of Social Security, requesting review of the Commissio ner’s decisions regarding her SSI benefits and the termination of her mother’s be nefits. Plaintiff claimed that the SSA negligently calculated her SSI benefit amou nts, causing her damage; that termination of her vested mother’s benefits was unl awful; and that she had been deprived the right to appeal the termination of hermother’s benefits by the SSA’s negligence in sending the notice to the Boulder add ress, and in informing her she had no right of appeal. The district court dismiss ed the action for failure to state a claim upon which relief could be granted.-4-

On appeal, plaintiff raises the same arguments, and also alleges that she has been libeled by the SSA’s findings of chargeable in come 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 raise d 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. Uni ted 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 tr ue 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). Defendant argues that plaintiff failed to exhaust e ither 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 TortClaims 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 recoveron 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-q uestion jurisdiction of any-5-

claim arising under Social Security Act except purs uant to § 405(g)); Tallman v. Reagan , 846 F.2d 494, 495 (8th Cir. 1988) (holding damage s action for negligent handling of disability claim under FTCA fails to st ate 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 co ntain 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 see k review before the Appeals Council. Section 405(g) authorizes judicial reviewof “final decisions” only, that is, decisions that have been appealed through all s teps 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 c laimant is required to exhaust h[er] administrative remedies by proceeding throughall three stages of the administrative appeals process.”); 20 C.F.R. § 416. 1455 (providing administrative law judge’s decision binding unless appealed to App eals Council). Nor has the exhaustion requirement been excused. T he 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 , 466-6-

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. The dismissal of plaintiff’s claim regarding termin ation of her mother’s benefits was also proper. Procedurally, it appears that plaintiff is appealing the Commissioner’s refusal to reopen her claim, a decis ion 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 ben efit termination, however, and even assuming that the exhaustion and statute of li mitations requirements would be excused, plaintiff has failed to state a claim b ecause Congress did not impair any vested rights by amending the Social Security A ct to eliminate mother’s benefits after a mother’s youngest child attained t he age of sixteen. See, e.g. , Bowen v. Gilliard , 483 U.S. 587, 604-05 (1987) (holding that congres sional reduction of social welfare benefits, or even elimi nation 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 Securi ty Act created no contractual rights, permitting Congress to alter its provisions without effecting a “taking” under the Fifth Amendment); Fl emming v. Nestor , 363 U.S. 603, 608-11 (1960) (holding that right to social se curity benefits is not a-7-

contractual property right, and that Congress couldamend Social Security Act to eliminate accrued benefits so long as governmental action not arbitrary). As plaintiff does not argue that the amendment was arb itrary, but simply that it was unauthorized and unjust, she has not stated a claimupon which relief can be granted. The judgment is AFFIRMED. Plaintiff’s outstanding motions to submit additional evidence and for oral argument are DENIE D. The mandate shall issue forthwith.

Entered for the Court

Michael R. Murphy Circuit Judge