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

                                                                          JUL 18 1997
                       UNITED STATES COURT OF APPEALS

                             FOR THE TENTH CIRCUIT                  PATRICK FISHER
                                                                             Clerk



    SHARON MARIE PUENTE,

                Plaintiff-Appellant,

    v.                                                 No. 97-1056
                                                    (D.C. No. 96-K-924)
    JOHN J. CALLAHAN, Acting                             (D. Colo.)
    Commissioner of Social Security, *

                Defendant-Appellee.




                             ORDER AND JUDGMENT **



Before BRORBY, BARRETT, and MURPHY, Circuit Judges.




*
      Effective March 31, 1995, the functions of the Secretary of Health and
Human Services in social security cases were transferred to the Commissioner of
Social Security. P.L. No. 103-296. Pursuant to Fed. R. App. P. 43(c), John J.
Callahan, Acting Commissioner of Social Security, is 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      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case 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 claim upon which relief can be

granted. We affirm.

      In July 1968, plaintiff began receiving mother’s insurance benefits based on

the wage-earning record of her deceased husband. In 1981, Congress amended

the Social Security Act to terminate mother’s insurance benefits when the

youngest child turned sixteen, rather than eighteen. In May 1984, when

plaintiff’s youngest child turned sixteen, the Social Security Administration

(SSA) sent plaintiff a notice that her benefits would 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 time. Plaintiff did not appeal

the termination of her mother’s benefits. In May 1995, when plaintiff sought

reconsideration of the 1984 termination, her request was denied because she

failed to appeal within sixty days after being notified of the termination.




                                          -2-
      In April 1993, plaintiff applied for and received Supplemental Security

Income (SSI) benefits based on a diagnosis of chronic fatigue syndrome. Over

the next year plaintiff received a series of letters adjusting her benefit amount to

reflect in-kind income and overpayments. Plaintiff appealed the calculation of

her chargeable income in two respects, disputing the SSA’s determination that she

received free rent from her daughter in May 1993 and that she received in-kind

income by living in a room provided by her employer from October 1993 to

March 1994. After a hearing, an Administrative Law Judge found that plaintiff

should not be charged with in-kind income for May 1993, but that the in-kind

income from October 1993 to March 1994 and all other income attributed to

plaintiff were correct. Plaintiff did not appeal this decision.

      In April 1996, plaintiff brought this action against the Commissioner of

Social Security, requesting review of the Commissioner’s decisions regarding her

SSI benefits and the termination of her mother’s benefits. Plaintiff claimed that

the SSA negligently calculated her SSI benefit amounts, causing her damage; that

termination of her vested mother’s benefits was unlawful; and that she had been

deprived the right to appeal the termination of her mother’s benefits by the SSA’s

negligence in sending the notice to the Boulder address, and in informing her she

had no right of appeal. The district court dismissed the action for failure to state

a claim upon which relief could be granted.


                                          -3-
      On appeal, plaintiff raises the same arguments, and also alleges that she has

been libeled by the SSA’s findings of chargeable income 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 raised 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. United 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 true 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 either 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 Tort Claims 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 recover on 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-question jurisdiction of any


                                         -4-
claim arising under Social Security Act except pursuant to § 405(g)); Tallman v.

Reagan, 846 F.2d 494, 495 (8th Cir. 1988) (holding damages action for negligent

handling of disability claim under FTCA fails to state 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 contain 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 seek review before the Appeals

Council. Section 405(g) authorizes judicial review of “final decisions” only, that

is, decisions that have been appealed through all steps 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 claimant is required to exhaust

h[er] administrative remedies by proceeding through all three stages of the

administrative appeals process.”); 20 C.F.R. § 416.1455 (providing administrative

law judge’s decision binding unless appealed to Appeals Council).

      Nor has the exhaustion requirement been excused. The 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


                                         -5-
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 termination of her mother’s

benefits was also proper. Procedurally, it appears that plaintiff is appealing the

Commissioner’s refusal to reopen her claim, a decision 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 benefit termination, however, and

even assuming that the exhaustion and statute of limitations requirements would

be excused, plaintiff has failed to state a claim because Congress did not impair

any vested rights by amending the Social Security Act to eliminate mother’s

benefits after a mother’s youngest child attained the age of sixteen. See, e.g.,

Bowen v. Gilliard, 483 U.S. 587, 604-05 (1987) (holding that congressional

reduction of social welfare benefits, or even elimination 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 Security Act

created no contractual rights, permitting Congress to alter its provisions without

effecting a “taking” under the Fifth Amendment); Flemming v. Nestor, 363 U.S.

603, 608-11 (1960) (holding that right to social security benefits is not a


                                          -6-
contractual property right, and that Congress could amend Social Security Act to

eliminate accrued benefits so long as governmental action not arbitrary). As

plaintiff does not argue that the amendment was arbitrary, but simply that it was

unauthorized and unjust, she has not stated a claim upon which relief can be

granted.

      The judgment is AFFIRMED. Plaintiff’s outstanding motions to submit

additional evidence and for oral argument are DENIED. The mandate shall issue

forthwith.



                                                    Entered for the Court



                                                    Michael R. Murphy
                                                    Circuit Judge




                                         -7-
