                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 20 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



AGABY YOUSSEF,                                   No. 11-55410

              Plaintiff-Appellant,               D.C. No. CV 10-00224-CJC
                                                 (VBK)
  v.

MICHAEL J. ASTRUE, Commissioner of               MEMORANDUM *
Social Security Administration,

              Defendant-Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                    Cormac J. Carney, District Judge, Presiding

                          Submitted November 5, 2012 **
                              Pasadena, California

Before: D.W. NELSON and O’SCANNLAIN, Circuit Judges, and GONZALEZ,
District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Irma E. Gonzalez, District Judge for the U.S. District
Court for Southern California, sitting by designation.
      Appellant Agaby Youssef (“Appellant”) appeals the District Court’s

dismissal of her action brought against Michael J. Astrue in his capacity as

Commissioner of Social Security Administration. Appellant filed an application

for Supplemental Security Income (“SSI”) benefits under Title XVI of the Social

Security Act in March 2000 and also sought reopening of two prior unfavorable

decisions on SSI applications she had filed in 1993 and 1997. The Administrative

Law Judge ultimately issued a fully favorable decision on her March 2000

application, but denied reopening of her 1993 and 1997 SSI applications.

Appellant appealed the Administrative Law Judge’s denial to the District Court,

which dismissed her claim for a lack of subject matter jurisdiction.

      Judicial review of the decisions of the Commissioner of Social Security

Administration is limited to final decisions. 42 U.S.C. § 405(g); see Schweiker v.

Chilicky, 487 U.S. 412, 424 (1988). “A decision not to reopen a prior, final

benefits decision is discretionary and ordinarily does not constitute a final decision;

therefore, it is not subject to judicial review.” Udd v. Massanari, 245 F.3d 1096,

1099 (9th Cir. 2001). However, a district court has subject matter jurisdiction to

review the denial of a request to reopen if the denial is challenged on constitutional

grounds. Califano v. Sanders, 430 U.S. 99, 107-09 (1977).

      We have recognized a due process violation where the claimant presents

evidence that mental incapacity prevented her from requesting timely review of an
administrative action and she had no one legally responsible for prosecuting the

claim on her behalf. Udd, 245 F.3d 1099-1100. We have also recognized a

colorable constitutional claim where the claimant can show that mental impairment

prevented her from understanding how to contest the denial of benefits. Klemm v.

Astrue, 543 F.3d 1139, 1144-45 (9th Cir. 2008).

      We find that Appellant is unable to raise a colorable constitutional claim

under either standard because (1) she was assisted by a legal representative who

prosecuted the 1993 and 1997 claims on her behalf and (2) she has not shown that

she suffered from a mental impairment or language deficiency such that she could

not understand the review process. Accordingly, the District Court properly

dismissed her claim for a lack of subject matter jurisdiction. Because the District

Court lacked subject matter jurisdiction, we do not reach Appellant’s argument that

the 1993 and 1997 SSI applications should be reopened because the Administrative

Law Judges committed fraud by misunderstanding and misinterpreting legal

standards.

      AFFIRMED.
